The exchange of sexual services for resources is criminalized in every state in the US, except for a small number of counties in Nevada where only brothel-based sexual exchange is legal. The United States’ approach to sex work is full criminalization, meaning the selling sex, buying sex, and all people and spaces which allow or facilitate commercial sex are all subject to criminal penalty.
This extent of criminalization also has a wide range of impacts beyond the process of arrest/charging/incarceration, including arrest records, bank accounts being closed for suspect of money laundering, child welfare and civil/family court proceedings, eviction when arrested in your home, deportation, and being barred from licensing for professions.
Women of color and/or trans experience are often profiled as engaging in commercial sex.
Beyond commercial sex which falls under prostitution, sex work includes many forms of legal and regulated labor which is not criminalized. Dancers/strippers are regulated through state and local law, and administrative regulations such as Occupational Health and Safety standards, and may have a range of employment statuses depending on the club. Porn performers and companies are regulated through state and local law which include stringent document retention, and may also have mixed employment status. Each area of the industry, and the diverse individuals who engage in it, all have unique needs and barriers.
Every state criminalizes all aspects of the sex trade. These laws generally fall into the same categories.
Loitering for the Purposes of Prostitution
Loitering for the purposes of prostitution is a profiling based crime based on what are typically legal activities, but interpreted by the arresting officer to be indicative of a person looking to engage in prostitution. Behaviors that have been criminalized under these laws include walking down the street, the style of clothing especially trans women wearing feminine clothing, having been arrested before for loitering and carrying condoms. Especially impacted are women of color and trans women, who are assumed to be engaging in sex work while doing things that people with different identities engage in all the time. Because of this, loitering laws are often referred to as “walking while trans.” These laws have been challenged on the basis of their discriminatory nature and disparate impact in New York State. Read the legislative memo from NYCLU on the challenge.
Example of a typical loitering law: Kentucky, (Ky. Rev. Stat. § 529.080)
Find out more more about the fight to repeal loitering laws.
Prostitution laws cover the exchange of sexual activity for resources. Solicitation laws cover the offering or discussion of engaging in prostitution, and may criminalize both the buyer and seller, depending on the state statute. (Example of a solicitation law which covers both buyer and seller, Illinois.) Laws which criminalize only the buyer are referred to as patronizing laws. (Example of a patronizing law, Washington state.)
What is defined as sexual activity differs based on the state which may enumerate activity, or leave the language broad and allow the courts, and by extension what behavior people are willing to challenge in court, to determine what specific activity is covered. (Example of a prostitution law with enumerated sexual acts, New Jersey, (NJ Rev Stat § 2C:34-1 (2013))
Often, prostitution laws are a misdemeanor where individuals race a range of possible penalties. In some states, multiple arrests will incur increasing penalties, including increasing jail time. (Example of a prostitution law with escalating charges, Arizona (Title 13. Criminal Code § 13-3214).
Read more about on-going decriminalization efforts.
Also criminalized are the many people around a sex worker, including managers, partners, peers and sex workers who operate collectively. These laws may fall into a range of terms including promotion, facilitation, pandering, living off the proceeds of or pimping. Behaviors can include accompanying someone to a session, inviting a fellow sex worker to see a client, booking a session or finding clients, or posting an ad for a sex worker. (Example of a third-party law, Louisiana, inciting prostitution, LA Rev Stat § 14:83.1.)
While third-party laws do not require any form of victimization, two states have chosen to rename third-party laws to be misdemeanor trafficking laws (Maryland, Maine). Massachusetts does not require victimization, force, fraud or coercion in its trafficking law – meaning everyone who facilitates prostitution is subject to felony trafficking criminalization.