Criminalization turns an act into a crime. Criminalization turns a citizen into a criminal. Criminalization turns a community into a target population.
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. Every state in the United States criminalize sex work, with the exception of certain counties in Nevada, which allow brothel-based sex work. Some jurisdictions have additional city-based ordinances which also criminalize sex work. Below are some of the most common types of laws through which sex work is sanctioned through criminal and civil penalty.
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.”
Challenges: Legislative Decriminalization
The above mentioned New York litigation has spurred a larger conversation on the state’s legislature about repealing the ordinance altogether. After the filing of the legal challenge, a state Senator introduced the law’s repeal. The bill has yet to pass, but has received increasing attention and support since its introduction.
Prostitution laws cover the exchange of sexual activity for resources, and come in multiple forms. Solicitation laws cover the asking to participate, offering and/or discussion of engaging in prostitution, and may criminalize both the buyer and seller, depending on the state statute. (Example, Illinois.) Prostitution laws criminalize the actual exchange of resources for sexual activity. (Example, New York.) Laws which criminalize only the buyer are referred to as patronizing laws. (Example, Washington state.) Some states combine all of these activities into a single statue (Example, Mississippi), making it impossible to understand the details of who is being criminalized for what activities.
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).
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: 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.
Criminalizing Space: Brothel-Keeping and Bawdy House laws
To capture additional people under the umbrella of criminalization many states maintain broad bawdy house laws, often described as a place kept for the purposes of prostitution. (Example, Virginia) Depending on the state, these may be used against third parties but also may be used against sex workers themselves who are working indoors.
Prohibition of commercial sex, or the ramifications of a prostitution arrest or conviction, also exist within administrative and civil codes in many states. Many states have nuisance laws which target locations, known as Red Light Abatement laws. These laws explicitly targeted prostitution and allowed a municipality to declare a location a nuisance, upon which it would be closed and civil damages would be incurred. (Example, California) Red Light Abatement laws moved in a wave across the country from 1910-1920, contributing to widespread closures of venues used by sex workers in an effort to gentrify growing cities. These laws may also exist in the public health code (Example, New York).
Some states also ban licensure for professions based on previous convictions or arrests for prostitution including for professions such as massage therapy. (Example, Arkansas)