Litigation uses law suits and the courts to impact change in laws and policies. Litigation can challenge the basis of all or part of a law (Roe v Wade struck down a state’s ban on accessing abortion) or a policy of the state (litigation has been brought to challenge conditions of confinement in prisons, for example). Litigation has been challenged prostitution-related statutes, with a range of outcomes depending on the law and claim. Below is an incomplete explainer on some of the aspects of litigation challenges in the US, broken down by law.
Loitering for the Purposes of Prostitution (State & City)
Loitering laws have had some of the most successful challenges to date. Because they often rely on the criminalization of otherwise legal behavior, they have faced challenges in multiple states.
In 2015, New York advocates challenged the state loitering statute (240.37) in D.H. vs City of New York for being overbroad and void for vagueness, and for discriminatory enforcement based on race and ethnicity, gender and gender identity, or appearance.
- Complaint, filed by Legal Aid on behalf of multiple plaintiffs
- Read the legislative memo from NYCLU on the challenge
- Final Opinion of the Court
In 1993, a legal challenge successfully overturned the Tampa loitering ordinance (Wyche v. State, 619 So.2d 231 (Fla.1993)) for criminalizing otherwise lawful behavior if the person had been previously convicted for a prostitution-related crime.
There have been two proactive attempts to use impact litigation to overturn prostitution statutes in the United States, neither successful.
COYOTE v Roberts. (Civ. A. No. 76-0254.) was a 1976 case filed by the sex worker organization Call Off Your Old Tired Ethics (COYOTE)’s Rhode Island chapter against the state’s prostitution law. The case argued both that the language of the statute was so broad as to criminalize private activity, and that the law was discriminatorily enforced against women, though the language of the statute was gender neutral. Final arguments on the merits were heard in 1979, but in 1980 the Rhode Island legislature amended the statute and removed the language being challenged in the case, making the decision moot and the court dismissed. COYOTE was awarded legal fees for the case.
In 2015, ESPLERP v Gascon (No. C 15-01007 JSW), filed in the Ninth Circuit, challenged the California 647 statute under arguments that private, sexual conduct was a fundamental liberty, that solicitation violated a person’s right to free speech, that the law violated the right to earn a living and freedom of association. The case was dismissed on the merits in 2018.
- Complaint filed by ESPLERP
- Plaintiff’s Motion to Dismiss, filed by the state of California (AG Harris at the time)
- Amicus Brief filed by Lamba Legal in support, joined by AIDS United, APLA Health, The Center for HIV Law and Policy, GLBTQ Legal Advocates & Defenders, The HIV Prevention Justice Alliance, National Alliance of State and Territorial AIDS Directors, National Center for Lesbian Rights, Positively Trans, Positive Women’s Network-USA, San Francisco AIDS Foundation, Brad Sears (Executive Director of The Williams Institute), Sero Project, and the Sex Workers Project at the Urban Justice Center.
- Amicus Brief API Equality-LA, Bienestar, Black Women for Wellness, California Rural Legal Assistance, California Women’s Law Center, Equality California, Familia: Trans Queer Liberation Movement, Free Speech Coalition, Gender & Sexualities Alliance Network, Gender Justice Los Angeles, Justice Now, Los Angeles LGBT Center, National Center for Transgender Equality, Transgender Gender-Variant Intersex Justice Project, Translatin@ Coalition, Transgender Law Center, Transgender Service Provider Network, filed by ACLU Southern California, joined by
- Order Granting Motion to Dismiss, 03-31-2016
- Opinion of the Court dismissing the case, 2018
Other challenges have been brought, especially in response to individual criminal charges, which have sought to overturn the law in different states. For example:
In 1988 OK CR 200, 762 P.2d 279, Roth v State (Oklahoma), plaintiff Roth argued that the law was overbroad. The statutory language at the time was, “[t]he term “prostitution” as used in this act shall be construed to include the giving or receiving of the body for sexual intercourse for hire, and shall also be construed to include the giving or receiving of the body for indiscriminate sexual intercourse without hire.” Opinion of the Court.
Note: As many of these attempts are decades old, the challenged language may have changed or been updated.
Third Party Charges (ie. Facilitating, Pandering, Promoting)
There has been numerous attempts to challenge individual cases for third party laws, though these often fail or succeed based on the specifics of the case itself, and it does not appear that impact litigation has been attempted on the state level.
One of the most recent was a 2018 challenge to the Massachusetts statute which criminalized living off the proceeds of someone who has engaged in prostitution. The defendant argued that the statute was overly broad as to its intention, especially given the severity of the penalty. The statute was upheld by the Supreme Judicial Court in the state, which claimed the legislative intent of who it was targeting was clear (“so-called pimps and purveyors”) and was therefore not overly broad. Read the Opinion.
Bawdy House Statutes
There have been challenges to bawdy-house statutes in both litigation and decriminalization efforts, but critiques have often centralized the consideration of the laws being overbroad or vague in response to non-prostitution related activity (Harris v US, 293 A.2d 851 (1972);
Two cases which specifically address FOSTA/SESTA currently in the courts:
Woodhull vs US (No. 18-5298 (D.C. Cir. 2020), which brought a preemptive challenge to FOSTA/SESTA. Currently, plaintiffs Andrews and Koszyk have been found to have standing; Andrews for operating a website where sex workers discussed specifics of work such as which payment processors to use and Koszyk for no longer being able to post online to advertise for licensed massage services. The lawsuit challenges SESTA/FOSTA on its face.
UNITED STATES OF AMERICA, v. WILHAN MARTONO (Crim. Action No. 3:20-CR-00274-N-1) is in regards to the prosecution of CityXGuide, the website which took a significant part of the post-Backpage advertisements. The website was seized in 2020, and charged with the Mann Act expansion created under FOSTA/SESTA, conspiracy and money laundering. As of January 2020
- Indictment, Filed June 2020
- Denial on Motion to Dismiss, denying that FOSTA is overbroad