Criminalization turns an act into a crime. Criminalization turns a citizen into a criminal. Criminalization turns a community into a target population.
While prostitution laws are under the purview of the states (Hoke v US, 1911) there are numerous Federal laws and policies which impact, and more often incentivize, local policing of the sex trade. Below are just some of the areas in which the federal government has its hand in local policing of sex workers, and more importantly, how the Administration and Congress can change that course.
Mann Act (The White Slave Traffic Act)
Passed in 1910, the White Slave Traffic Act, later re-named the Mann Act, is the most direct federal criminalization of the sex trades, criminalizing the crossing of state lines for the purpose of engaging in prostitution. The law is still frequently used today, and has a history which has been predominantly rooted in policing mixed-race relationships between Black men and white women.
In 2018 with the passage of FOSTA/SESTA, Congress expanded this law by adding 2421A, which included operation of a website which promotes or facilitates prostitution as criminalized activity. The law provides no clear definition for promote or facilitation, putting sex worker community groups, harm reduction sites, advertisers, or simply sites that know sex workers use their platform all at risk of up to 25 years in prison and mandatory restitution.
Immigration Bans on Sex Workers
Since the United States began passing immigration laws, discrimination against people who trade sex has been explicit. The Chinese Exclusion Act, the first federal immigration law, included a ban on sex workers from Asian countries, meaning anti-sex worker legislation has been intimately intertwined with immigration legislation from the beginning. Current immigration law, defined by The Immigration and Naturalization Act explicitly bars people who have engaged in sex work in the last ten years, even if it was legal in their home county, from applying for a visa. This is blatantly discriminatory and dehumanizing for people who trade sex. While migrants may apply for a visa waiver, this requires disclosure of a stigmatized identity which could easily invite abuse from government officials. Additionally, the Bureau of Immigration Appeals has concluded that prostitution is also a crime involving moral turpitude, even for victims of trafficking into commercial sex. This has resulted in people who are engaged in commercial sex being deported, visas being denied, and individuals not being able to adjust their status.
In both HIV and anti-trafficking funding and contracts there are requirements for organizations receiving federal funding to have a policy explicitly opposition prostitution, or banning any support for the practice of prostitution. These bans have led HIV service organizations around the world who have worked with sex workers as part of their programming to refuse funding despite the impact on programming. The pledge has been challenged in the court in OSI v. USAID, which found that asking a US-based organization to adopt a policy was a violation of the First Amendment. Most recently the case went in front of the Supreme Court asking for this to be applied to international organizations.
After twenty years of anti-trafficking efforts in the United States, the majority of work is still focused on increasing low-level and atrophied enforcement of prostitution laws broadly instead of engaging in effective efforts focused on trafficking. This misapplication has led to an almost exclusive focus on the sex trade to the detriment of other laborers, an ill-informed body of actors, and unknowable wasted funding and resources. All of this stems from the an approach where all sex workers are seen as victims of trafficking, and that those who are at the forefront of “rescue” are local law enforcement.
Read more: B Chapman-Schmidt, ‘“Sex Trafficking” as Epistemic Violence’, Anti-Trafficking Review, issue 12, 2019, pp. 172-187.
There are nine different departments which engage in anti-trafficking work, almost all in some ways impacting the sex trade. For example, federally coordinated stings such as Operation Cross Country, which has been operating annually for over a decade and engage agents from the DOJ and DHS, are simply stings on the sex trade, and contribute to all the problems of policing and, at best, arrest victims and provide a referral to services in the hopes of identification, a practice no one agrees is in the best interest of victims of violence. Training to law enforcement also contributes to these operations, such as the Handbook provided by the DOJ’s Office of Victims of Crime, which lists sting operations as the only tangible suggestion for all “proactive anti-trafficking” efforts – efforts which are required for some anti-trafficking grants. There are many structural problems in anti-trafficking work which incentivize sex trade policing, to the disservice of sex workers who are not being coerced, trafficking survivors in the sex trades, and trafficking survivors in ever other area of labor which is being underserved and overlooked.
There are many things service providers in particular can do to untangle these links, but it will take Congressional and Administrative action to completely undo these mistakes. Read more about the issue: Exploitation and Trafficking.
FOSTA/SESTA, Tech Regulation and Federal Policing
Because of the criminalization of sex work, websites who knowingly allow sex workers to use their platform are at risk of criminalization. This has prevented websites from offering harm reduction information, choosing instead of turn a blind eye and protect their liability. Beginning in 2015 with the closure of MyRedbook, federal law enforcement agencies have begun targeting platforms by combining charges of state-level promotion of prostitution charges with federal Travel Act and Money Laundering charges. Since then these three criminal statutes have been used against Rentboy and Backpage.com to taken them down and displace sex workers who found safety in online advertising over other forms.
In 2018 Congress attempted to institutionalize this practice with the passage of FOSTA/SESTA, which expanded liability for platforms specifically around hosting information related to the sex trade. The law, which provided little clarity to websites on how to obey the law, led to the preemptive closure of dozens of sites, changing the digital landscape and making many sex workers more vulnerable.
See more about the issue: Website Regulation, Tech and 230.