Criminalization of the sex trades leads to increased in violence, HIV/STI transmission, stigma, exploitation and trafficking and isolation. Despite these wide-spread and consistent consequences, sexual exchange remains criminalized in most countries in the world. In the United States, every aspect of commercial sex faces criminal sanctions and penalties. Just like other forms of state violence, people of color, LGBTQ folks, women and femmes, and undocumented people face the harshest consequences of policing and criminalization. Sex workers and allies across the country are rising up to push back, and fight for decriminalization as one part of improving the health and safety of those who trade sex.
“[T]hose arrests really took away from my babies.”Tamika Spellman, DC-based activist and community leader
The impact of criminalization is to increase the myriad forms of violence faced by people in the sex trades, including people experiencing exploitation and harm. Read more: NSWP’s The Impact of Criminalisation on Sex Workers’ Vulnerability to Violence and HIV.
Interpersonal Violence (Non-State)
Interpersonal violence, or violence within communities as defined by the Incite! Women of Color Collective, is the use of non-consensual physical, emotional/psychological and sexual violence between people. (Forms of violence defined by the WHO) This violence can come at the hands of clients, partners, managers, peers and other community members. Criminalization increases vulnerability to this kind of violence in multiple ways. Criminalization turns sex workers into a target population for violence, as people know that sex workers fear arrest when exposing themselves to police, or being dismissed as deserving violence and harassment. (Read more about Immunity Advocacy in California.) Avoidance of law enforcement forces sex workers to take additional risks such as constraining negotiation, not being able to screen, operating in more physically isolated locations, and relying on someone else to find clients – all of which increase vulnerability to interpersonal violence. Criminalization also reinforces stigma, foundational to the dehumanization which makes sex workers targets for abuse. Criminalization normalizes violence.
In our review, there was consistent evidence of an independent link between policing practices (e.g., arrest, violence, coercion) and elevated rates of physical or sexual violence against sex workers.Deering KN, Amin A, Shoveller J, et al. A systematic review of the correlates of violence against sex workers. Am J Public Health. 2014;104(5):e42-e54. doi:10.2105/AJPH.2014.301909
Criminalization and policing are their own form of state violence, as well as sanctioning and heightening other forms of violence. The act of an arrest can be physically violent, but also emotionally and psychologically devastating. In a report on trafficking victims’ experiences with law enforcement, one respondent, a 44-year old Black Caribbean female, reported, “You know, parading me in the hotel with the handcuffs. They’re like, I can’t explain it, it was like a show, was like a parade, you know there was like fun. They were laughing and it was fun, it was fun for them, it was a good night.” This may be accompanied with acts such as giving names and mugshots to local news outlets, which may out a person as transgender or their HIV status, as acts of public humiliation. Law enforcement also acts with impunity, contributing to Even survivors of trafficking report “overwhelmingly negative experiences [with police], which consisted of verbal abuse, intimidation, humiliation, sexual harassment, and profiling.” Sexual violence is also frequently an accepted part of investigations for both prostitution charges and trafficking. (Read more: Police Sexual Violence.)
Harm also does not stop with police. Sex workers may find emotional violence in court rooms, with court personnel who misgender or talk down to defendants. For those who can’t make bail, or in places where prostitution charges incur long jail sentences, incarceration is a place of violence and trauma. (Read more on the life and tragic passing of Layleen Xtravaganza Cubilette-Polanco, who passed away while incarcerated pre-trial.)
Public Health, HIV/STI transmission
There has been extensive documentation linked decriminalization with improved health outcomes. The Lancet, an international public health journal, projected that worldwide decriminalization of the sex trades could reduce HIV transmission rates 33-46%. The structural factors of stigma and discrimination from healthcare providers, increases in sexual violence, the inability to engaging in basic harm reduction techniques like carrying condoms, compounded on a community who face higher rates of other forms of economic and structural marginalization all contribute to poorer health outcomes for people in the sex trades.
Internationally: Forms of Regulation
There are different, sometimes overlapping forms of regulation of the sex trades internationally which produce significant differences in health and safety outcomes.
Under criminalization, people who engage in the sex trade face criminal penalties. Countries differ on whether they criminalize the seller, buyer and/or third party or some combination thereof.
Countries which engage criminalization: United States, China, Canada
Prominent in Europe, legalization involves the state creating a regulatory framework, and sex workers face what are often onerous barriers to legal participation, such as only working in a brothel or only operating in a set district.
Countries with legalization: Germany, Peru, Uruguay
The sex industry is treated as any other form of labor, and participation does not incur criminal penalties. Regulations are similar to other occupational health and safety standards.
Countries which have decriminalized: New Zealand for citizens
Beyond Arrest: Broad impacts of Criminalization and Policing
Sex workers, allies, researchers and advocates around the globe have noted that criminalization of the sex trade include violence, poor health outcomes, stigma, exploitation and discrimination. But the impacts of policing of the sex trade begin long before and extend long after the act of arrest, charging and incarceration.
Prior to arrest
- As soon as sex workers begin looking for clients, many begin thinking about avoiding law enforcement. Sex workers have long responded to this state violence through community building and knowledge sharing of harm reduction techniques such as safety tips, looking out for each other, and maintaining bad date lists formally and informally.
- People who work in public space have to pay attention to police making rounds, which may compromise the length of time to assess potential clients or negotiate services. When police heighten their surveillance, negotiation times are shortened, meaning that topics such as condom use or price might not be covered. This also means that sex workers have less time to assess intoxication or look into the car for possible weapons before having to leave for a more isolated and remote location with a potential client.
- When police increase their presence in a location, this displaces sex workers, who must move to physical locations that are less well known, more poorly lit, or more isolated. Not only does this put sex workers directly at risk of violence, it means that service providers and outreach workers may not be able to reach people.
- In places where police work undercover, negotiations are often compromised. When discussing condom use or cost can be evidence of criminal activity, it becomes a risk to discuss. Not negotiating before entering a more isolated or private space can lead to angry clients – which can lead to experiences of violence, harassment, or losing out on income.
In conjunction with arrest.
- Arrest is an act of state violence. Not only is it a physical act of violence, for many it may also extend into sexual violence.
- For sex worker parents, especially those who are primary caretakers, a prostitution arrest may trigger a call to the child welfare system, resulting in a loss of custody or an assumption that the person is a bad parent.
- Law enforcement regularly posts the names and photographs of those arrested in prostitution stings, which can result in outing about engagement in sex work, or a persons’ status as transgender. This may lead to isolation, stigmatization and is an intentional act of public humiliation and emotional violence.
After arrest and incarceration
- Sex workers, even those who may not be incarcerated, can face exorbitant court fines and fees, which may easily be exploited by third parties.
- The long-term impact of an arrest record and charge can bar access to subsidized housing, problems getting formal employment and problems in civil cases such as divorce or custody hearings.
- For those working in their home, which can be the safest space for a person to work, law enforcement may alert the landlord, resulting in eviction. If prostitution arrests are incorporated into local nuisance ordinates, the landlord may be required to evict a sex worker.
- For student sex workers at private universities, a prostitution arrest may be in violation of the school’s code of conduct, causing a person to be expelled.
Rates of Arrest for Prostitution-related Crimes per 100k state residents, 2019
Top 5 States: (Red)
- Nevada (100.38)
- California (15.062)
- Texas (11.54)
- Maryland (10.47)
- Louisiana (9.73)
Lowest Arrest States: (Blue)
- Indiana (.63)
- Illinois (.49)
- Vermont (.48)
- Montana (.43)
- West Virginia (.32)
At the Federal Level:
- Administration: Stop funding low-level anti-prostitution efforts under the guise of anti-trafficking efforts.
- Congress: Pass a resolution urging the decriminalization of the sex trades.
- Congress: Address issues with digital platforms as an experience of harm which engages digital space, instead of haphazardly criminalizing the sex trade.
- Congress: Repeal the Mann Act, which criminalizes the movement of sex workers across state lines and support of sex workers on websites.
At the State Level:
- Legislative: Enact legislation to decriminalize the sex trades, including third parties and spaces where sex workers operate.
- Administrative: Issue an executive order de-prioritizing the arrest and incarceration of people engaged in the sex trade.
- Legislative: Fund efforts to support the health and wellness of people who trade sex under all circumstances, including but not limited to funding for people who wish to exit the trade, and harm reduction services for people who wish to remain under safer conditions.
At the Municipal level:
- City Councils/Administrative Actors: Enact city-level directives to prohibit or de-prioritize the arrest of people in the sex trades.
- City Councils/Administrative Actors: Support state-wide legislation with a resolution.
- Departments of Health: Call on law enforcement to end the criminalization of the sex trades, including spaces where sex workers operate.
- Police Departments: Just stop arresting and detaining people, including detaining sex workers as bait for clients, partners and managers.
- District Attorneys: Stop prosecuting sex work-related charges.