Sex workers and their allies filed a lawsuit in federal court last week challenging California’s statute prohibiting prostitution, in an attempt to decriminalize the practice in California and several other western states.
The lawsuit, filed by the San Francisco-based Erotic Service Providers Legal Education and Research Project (ESPLERP), alleges that California’s prostitution laws violate the constitutional rights of individual adults to freely associate, choose for themselves how to make a living and decide the terms of consensual sex in private.
“Unlike other acts made criminal (things like murder, human trafficking or robbery), the commercial exchange of sex produces no victims,” the ESPLERP complaint reads. “As such, there is no compelling or legitimate governmental interest in its criminalization.”
ESPLERP also argues that the enforcement of the prostitution laws discourages safe sex because prosecutors use the possession of condoms as evidence against defendants charged with engaging in illegal sex work, a problem that has been documented across the country by human rights groups and linked to upticks in risky sexual behavior among sex workers and their clients.
While prosecutors in San Francisco and other major cities recently caved to pressure from activists and instituted policies banning the use of condoms as evidence in court, ESPLERP President Maxine Doogan said condoms could still end up in the hands of police during an arrest.
“But the police can still collect [condoms], they can take pictures of them, they can still be documented,” said Doogan, who identifies as a prostitute.
Doogan said the lawsuit was filed in federal court (instead of state court) so a ruling in the plaintiffs’ favor could bring relief to the most people. The case is tailored to California law, but if it advances to the Ninth Circuit Court of Appeals, a broad ruling or injunction could decriminalize prostitution in nine of the country’s most western states including Washington, Oregon, Nevada, Arizona, Hawaii and Alaska.
The lawsuit was filed on behalf of three current or former sex workers, including one plaintiff who has been licensed to legally provide erotic services in Nevada, where prostitution is legal, but cannot work in California without violating state law. A fourth plaintiff is a disabled California man who wishes to hire erotic sevice providers for consensual activity in the privacy of his home.
The plaintiffs are named anonymously to avoid harassment and prosecution.
The case draws inspiration from COYOTE v. Roberts, a case originally filed in 1976 and resolved in 1980, which led Rhode Island to decriminalize certain types of sex work for nearly 30 years.
That case, filed by the sex worker rights group Cast Off Your Old, Tired Ethics (COYOTE), argued that Rhode Island’s prostitution statutes were so vague that even noncommercial, extramarital sex could be considered illegal, and the state had no place in regulating how adults sexually associate in a private setting. The lawsuit also pointed out that police stings at the time discriminatorily targeted female sex workers far more often than their male clients.
The court declared the case moot in 1980, after the state legislature amended the law to reduce the punishment for selling sex on the street from a felony to a misdemeanor and removed the vague language regulating private sexual relations, including commercial sex. Under the amended law, exchanging money for sexual services in a private setting was virtually decriminalized in Rhode Island until 2009, when conservative lawmakers and anti-trafficking advocates recriminalized prostitution in an effort to crack down on massage parlors.
In Rhode Island and across the country, law enforcement and a conservative milieu of anti-human-trafficking advocates argue that prostitution must remain a crime so police can investigate sex trafficking and intervene when people are forced or coerced into sex work by sex traffickers.
Doogan, however, said that police intervention often does more harm than good.
“Being arrested is violence,” said Doogan, who added that being put in handcuffs and thrown in jail is traumatizing to sex workers whether they are being trafficked or working under their own volition.
Doogan said that cops often don’t know the difference between people who choose to do sex work and people who are trafficked, and consenting sex workers can end up in handcuffs and behind bars.
She pointed to San Francisco District Attorney George Gascon, who was named in the lawsuit and approached by local media last week.
“There are people victimized on a daily basis, under duress, beaten,” Gascon told the local ABC affiliate, referring to sex-trafficking victims. “Having said that, I don’t negate the fact there may be some consenting workers, and, if there are, how do we differentiate one from the other?”
Human rights advocates also point out the social stigma and laws criminalizing prostitution lead police to harass and unfairly profile marginalized people such as homeless youth, poor people and LGBTQ individuals as sex workers.
“Transgender woman of color are just constantly being profiled as sex workers, and police use these sex work anti-soliciting and anti-prostitution laws as another tool to really harass these communities,” said J.M. Kirby of the Best Practices Policy Project. “They are kind of a way for police to marginalize already vulnerable communities.”
Conditions for people working in the sex trade can vary greatly, advocates say, and solutions for meeting their needs do not exist within the framework of existing laws, which only drive sex workers underground and away from crucial services. Sex workers who experience violence, for example, may not contact the police out of fear of being arrested.
“The real solution is decriminalization,” Doogan said.
ESPLERP was crowdfunding its lawsuit on GoFundMe.com until last week, when the website told the group it had changed its terms and conditions and canceled the campaign. ESPLERP is now taking donations through Tilt.com.
Correction: This article incorrectly identified ESPLERP President Maxine Doogan as a “sex worker.” Doogan identifies as a prostitute, not a sex worker. Doogan said she considers ESLPERP’s constituents to be “erotic service providers.”
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