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Democrats Take a Small Step Toward Decriminalizing Sex Work

Elizabeth Warren is backing away from SESTA-FOSTA, an anti-sex trafficking law that does more harm than good.

A coalition of activists in New York agitate for the decriminalization of the sex trade on February 25, 2019. Thanks to years of activism, decriminalization is finally entering the mainstream political conversation.

Democratic presidential hopefuls Bernie Sanders and Elizabeth Warren appear to be reconsidering their votes for a 2018 package of laws known as SESTA-FOSTA that is widely criticized by activists and the media for shutting down websites that sex workers use to screen clients and make their lives much safer.

With Warren and Sanders named as co-sponsors in the Senate, progressive Democrats introduced legislation in Congress on Tuesday that would direct the Department of Health and Human Services to study the impacts SESTA-FOSTA is having on sex workers and victims of sex trafficking. The study would take a close look at people who are particularly marginalized and vulnerable to violence, arrest and exploitation, such as undocumented women and transgender women of color.

SESTA-FOSTA was originally promoted as a way to curb child sex trafficking online. Sex trafficking involves forcing or coercing a person to perform sexual labor and is categorically different from sex work performed by consenting adults. However, SESTA-FOSTA directly interfered with the adult sex trade by making anyone hosting a website that promotes “prostitution” guilty of a serious crime.

As a result, a number of free or inexpensive platforms that sex workers once used to remotely connect with and screen potential clients have shut down. This has had a disproportionate impact on poor and marginalized sex workers, who are unable to pay for access to premium websites and must take greater risks to find clients.

“Last year I warned that forcing websites to take down any mention of sex work would remove agency from sex workers and put them at great risk of violence and abuse, all while making it harder to catch sex traffickers and aid victims of human trafficking,” said Sen. Ron Wyden, a co-sponsor of the legislation and one of two senators who voted against SESTA-FOSTA. “So far, initial reports from cities across the country show that violence against sex workers is rising dramatically and there’s little evidence that this law is helping victims.”

SESTA-FOSTA followed a successful effort by Congress to shut down Backpage, a popular and affordable website that hosted ads posted by sex workers and entertainers. At the time, lawmakers were under pressure from the conservative wing of the anti-human-trafficking movement to combat the sexual exploitation of children. For years, this movement has conflated consensual prostitution with sex trafficking. It has also sensationalized sex trafficking and exaggerated its prevalence, and worked directly with law enforcement on initiatives that harm sex workers and trafficking victims alike.

“I can’t blame politicians who have been sold a hundred years of propaganda and lies about the world’s oldest profession for being wrong about this,” said Kaytlin Bailey, communications director for Decriminalize Sex Work, in an interview.

Earlier this year, a landmark study found that Craigslist reduced rates of violence against women engaged in sex work because sex workers used the website’s personals section to find and screen clients remotely instead of looking for work in-person. Thanks to Craigslist, where ads can be posted for free, researchers estimated that murder rates among women dropped 10 to 17 percent from 2002 to 2010. After SESTA-FOSTA became law, Craigslist was forced to remove its adult personals and dating sections.

Even some anti-trafficking groups opposed SESTA-FOSTA, arguing the law pushes actual sex traffickers further underground and away from public view, making it difficult for advocates to identify potential sex trafficking victims.

“As lawmakers, we are responsible for examining unintended consequences of all legislation, and that includes any impact SESTA-FOSTA may have had on the ability of sex workers to protect themselves from physical or financial abuse,” Warren said in a statement.

The proposal to study SESTA-FOSTA comes as the decriminalization of prostitution is finally entering the mainstream political conversation after years of activism around the issue. Prostitution, or exchanging sex for money, is illegal in most places, while other forms of sex work, such as exotic dancing and pornography, are technically legal in some areas but often highly regulated. Decriminalization removes criminal penalties for consenting adults who exchange money for sexual services. Sex worker rights activists say full decriminalization is a matter of survival, particularly for marginalized people who find work on the street and risk being targeted by traffickers and the police.

Warren and Sanders came under pressure from activists to take a position on decriminalization after releasing sweeping criminal legal reform platforms that failed to mention sex work. Both candidates now say they are open to the idea of decriminalizing sex work. Earlier this year, New York took steps toward becoming the first state to decriminalize (rather than legalize) prostitution after years of organizing by sex worker rights activists.

Bailey said it’s important for lawmakers to push for the decriminalization of sex work, but they must do it right. If they rush a decriminalization law through Congress without listening to experts and advocates — as they did with the SESTA-FOSTA anti-trafficking bills — the end result could do more harm than good.

“It’s really important to move slowly and carefully because there are a lot of ways to do this wrong,” Bailey said.

For example, some anti-trafficking advocates are pushing the so-called Nordic model, which removes criminal penalties for prostitution but allows police to target and arrest people who hire sex workers. Proponents of this model share the unrealistic goal of abolishing sex work, which they tend to oppose on moral grounds. Advocates say the Nordic Model encourages stigma against sex workers that can extend to close friends and partners. It also criminalizes people who pay for sex, making it more difficult for sex workers to find clients they can trust.

Advocates for decriminalization are also critical of schemes that legalize and heavily regulate prostitution. Prostitution is technically legal in Nevada, but only in a few specially licensed brothels. If sex workers are unable to get a job at one of these establishments or choose to work independently and are unable to comply with regulations, they are targeted for arrest.

“We don’t want to nationalize the Nevada model. Nevada has the highest rate of arrests [for prostitution] in the country,” Bailey said. “Decriminalization stops the arrests; you can’t help people if you are hunting them. The first thing we need to do is call off the guards.”

A federal study on SESTA-FOSTA could steer lawmakers away from well-intentioned reforms that would still harm sex workers. If based on the best available data, the study would provide lawmakers with hard evidence that laws criminalizing and restricting sex work make life more dangerous for low-income women, houseless people, the undocumented, LGBTQ youth and gender non-conforming people. This could set Congress on a path toward decriminalizing prostitution and other types of sex work nationwide.

The SESTA-FOSTA study is backed by dozens of civil rights, racial justice, LGTBQ rights groups. Puneet Cheema, a staff attorney at Lambda Legal, said the bill is “historic” for recognizing that people in the sex trade have the right to be healthy and safe.

“Some members of the LGBT community, particularly transgender women of color, sometimes rely on sex work for survival because they face extreme discrimination in the formal employment sector,” Cheema said in a statement. “After the passage of SESTA/FOSTA, people who trade sex have been pushed to the streets where there are higher risks of violence and exploitation.”

However, the legislation faces an uphill battle in the Republican-controlled Senate and would likely be vetoed by President Trump, who signed SESTA-FOSTA into law. Trump and other conservatives remain under the influence of evangelical Christians who morally oppose prostitution and conflate consensual sex work performed by adults with human trafficking and child exploitation.

Even if the legislation did pass, the Trump administration would be in charge of the study and could skew the results. Trump has already pushed the Department of Health and Human Services to limit reproductive health care and dismantle rules that protect women, LGBTQ people and minorities from discrimination, ignoring established science in the name of promoting “religious freedom.”

While some Democrats are taking a significant step toward admitting that SESTA-FOSTA was a big mistake — a step that could lay the groundwork for decriminalization of sex work nationally — they must rally broader political support to get it all done. While Bailey cautioned that lawmakers must be thorough and thoughtful as they move forward, the need for change remains as urgent as ever.

“We should move quickly because people are dying,” Bailey said.

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