Legislative repeal removes the criminal penalties for commercial sex that exist in the criminal and/or civil code. To pass a repeal, the process is the same as how any other bill becomes a law (Federal infographic on that process). Below are some steps for drafting a repeal bill, including questions to consider, and goes through the process through introduction.
This section is broken into: 1. Finding out what to repeal; 2. Do you want to add things? 3. Sample Repeal bills 4. Unintended Consequences
What are you repealing?
The first step is to find out all of the laws which are impacting people who trade sex – and there are a lot, many of which are not prostitution laws. The first step is to determine what laws you want taken off the books. There are multiple avenues to determine what you want to repeal.
What are people getting arrested for? One way to find out what is impacting people is to have people tell you or offer their records. Not everyone knows what charges they have, sealing and expungement may have not gone through, and some jurisdictions have overlapping charges (was it the state soliciting charge or the city’s loitering charge?) so many people may not know the charges they have. If everyone uses the same legal aid service, they might be able to give you a ballpark of the most common charges people are seeing. Getting a rap sheet can also be a prompt to explore expungement and vacatur opportunities for community members.
Checking Legal Codes
**It’s helpful to work with a legal clinic, law student, or legal services group to make sure you’re able to find all the laws regarding prostitution charges and other forms of sex work in your state**
Prostitution Sections of the Criminal Code: Most states have a section where the bulk of criminal sanctions are kept. For example: Wyoming’s Criminal Penalties, WI Stat § 944.30 (2019) are a single subsection under Chapter 944: Crimes Against Sexual Morality in the state’s criminal code. This code should be reviewed carefully. While some laws you can strike out entirely, these codes may also include penalties against violent acts or safe harbor laws.
Prostitution-related charges in the Administrative or Civil Code. This could include things like a overly strict licensing on massage/bodywork, public health requirements that create requirements around medical testing, or other forms of regulation that aren’t useful. For example, New York Consolidated law including a provision in the Multiple Dwelling Law which would ban brothels.
Where is your state’s trafficking law?
Trafficking is defined as exploitation through force, fraud or coercion. In most states and federally, this is divided between exploitation via commercial sex (referred to as sex trafficking) and exploitation in forced labor, or every other form of labor, and some parts of the adult industry, known as labor trafficking. The delineation is a sham, but it’s one to be conscious of when looking at your state’s trafficking law.
**The delineation was created to assert that all sex work is rape, not work. An easy way to push back on this is to use the term “human trafficking” unless referring to a specific statute.
- Worst: Some states have an “aggravated” third-party statute instead of a sex trafficking law, which is written into the prostitution section. Example: Virginia has a single section for all prostitution and trafficking laws, Chapter 8/Article 3. This means that they have one law (Commercial sex trafficking, § 18.2-357.1). Section A criminalizes receiving money for inviting/recruiting another person for commercial sex, a Class 5 felony – meaning if you don’t do medical play, so you pass a really safe regular to a friend who’s an expert at it and ask for a referral fee, you’re up for a class 5 felony. Section B is inviting/recruiting through force – meaning trafficking. Section C is for recruiting a minor, which would also be trafficking. This could involve re-writing the second.
- Separate Trafficking Laws: Some states and the federal government have two distinct charges – sex trafficking and labor trafficking. This delineation can help see how many charges are being filed in each category, but it often means the penalties are different, and it’s easier to have different procedures. Example: North Dakota has two charges, 12.1-41-03 for Forced Labor, 12.1-41-04 for Sexual Servitude. The penalties for both charges are the same in this state.
- One Law: Some states have a single human trafficking statute which may list out both, but is within the same charge. For example, North Dakota has a single human trafficking law which prohibits “forced labor or services” and defines services as commercial sex.
Not Everything Will be Repealed
With your coalition, determine what you want to repeal and what can stay. Many criminalization sections include charges against violence. These may be duplicative to other criminal statutes against violence, but you may want to leave some, depending on your legislature and community.
Do you want to add things?
In addition to repealing criminal law, there will be an expectation of additional provisions. Even in New Zealand, decriminalization came with a number of additional provisions, including industry regulations and even a new criminal provision on patronizing a minor. Below are just some examples of what to think about.
- Expungement and vacatur: Removing criminal penalties affects all future charges, but does not automatically expunge the records of those with prostitution-related charges. Provisions should be included which allow people to expunge or vacate their records. Example: New York’s Decriminalization law expanded the pre-existing vacatur statute in Section (K).
- Studies, Task Forces and on-going Assessments: Decriminalization is the beginning of the conversation, not the end. People are going to want to know the impacts – and honestly, we don’t know the exact impacts. For those in need of support, including harm reduction or support in leaving sex work, consider increased outreach and service provision. In DC’s decrim bill, a Task Force was established (Sec 202) which would report back on the impact, both positive and negative, of decriminalizing sex work, and provide public health guidance moving forward.
- Industry standards and labor standards: This is the trickiest one, because it’s based on developing protocols for an industry that is brand new in a decriminalized setting, and where organizing has been precarious. Good industry standards come from extensive organizing, and understanding what is low-barrier enough to enshrine in law, even labor law. Brothel regulations in Nevada may be the most comparable in theory, though have generally reflected the desires of management instead of workers.
Sample Repeal Bills
The following bill texts are from current sex worker-led campaigns to repeal criminal penalties for commercial sex in different cities.
- Washington, DC, led by the Sex Workers and Allies Coalition (SWAC) (Reducing Criminalization to Promote Public Safety and Health Amendment Act of 2017, introduced in July 2019). Text of the bill. This repeals the criminal provisions in the DC code for commercial sex and establish a task force to study and make recommendations regarding the provision of supports and the removal of criminal penalties for individuals engaging in commercial sex.
- New York, led by DecrimNY. (S. 6419, introduced in 2019). Text of the bill. The Stop Violence in the Sex Trades Act is incredibly comprehensive, repealing not only the criminal code in Part A, but also in Part B, statutes in Criminal Procedure Law, Civil Practice Law and Rules, Social Services Law, and Administrative Code of the City of New York to provide for criminal record relief for individuals previously convicted of crimes that are repealed under this bill. Part C repeals and amends parts of the Multiple Dwelling Law, Public Health Law, Real Property Actions and Proceedings Law, Real Property Law, Vehicle and Traffic Law, and the Administrative Code of the City of New York to make conforming changes and clarifications.
- Louisiana, led by Women with a Vision. (HB 366, introduced 2020). Text of the bill. This repeals multiple criminal provisions regarding commercial sex and recommends to the legislature in a written report such other amendments to the Louisiana Children’s Code, Code of Criminal Procedure, Code of Evidence, Louisiana Revised Statutes, or any other body of Louisiana law as is necessary to effectuate, conform, and to address any inconsistencies with the purpose of this Act repealing certain prostitution-related offenses.
Decriminalization is a necessary step, but it can be helpful to try and anticipate unintended consequences it may have. Criminalization is about the state control of bodies, and the state will continue to attempt to assert control as long as it can. While nothing can be perfect.
- Minors. Because trafficking includes all minors who trade sex are considered victims of trafficking, so any one knowingly facilitating that – even in terms of harm reduction – are vulnerable to being charged with trafficking. This means that age-related barriers will continue to exist, but may also make young people more vulnerable without expanded resource support and outreach.
- Continued policing and other charges. Police may arrest and charge sex workers with other, similar charges, and may continue to harass people in the sex trades. Law enforcement can hold or detain someone for several hours, and are doing this more frequently for sex workers, assuming they are evidence who will flip on a manager or dealer. Monitoring these events will be important, and making sure there are reporting bodies may help monitor if this is occurring.
- Migrant Sex Workers. Criminalization of prostitution happens at the state level, but immigration consequences for migrant sex workers are enshrined at the Federal level, and can only be changed in Congress and the Administration.