Police violence often looks different through a gender lens. Law enforcement regularly engages in sexual violence – sanctioned, unsanctioned, and in tacitly approved-of grey areas – against people in the sex trades, and those profiled as such. Sex workers have reported for years the abuse that law enforcement has, and noted it as one of the reasons why decriminalization is important. This section looks at the sanctioned and incentivized ways that police use sexual violence in the course of their work. To read more about the scope of police violence against women of color works such as Invisible No More illuminate the many ways this takes shape. Other issues include gender checks for trans women and gender non-confirming femmes, more explicit forms of rape and sexual extortion. Issues of police sexual violence are vastly under-reported, and department policy shift is only one small, incremental step towards ending this form of state violence.

“Detectives were informed by HSI that the undercover sexual activity was authorized,”

Emily Fromelt, a Bullhead police spokeswoman.

Police Investigations: Sanctioned Sexual Violence

While sex workers have known that police often engage in sex with sex workers in order to investigate or prove prostitution charges, there is only a nascent broader awareness.

“I felt violated. It was a horrible experience. It was like, because he had a badge, it was okay—he could just do it.”

– Rachel, an Alaskan sex worker who was arrested after a session with someone she thought was a client; Police Are Allegedly Sleeping with Sex Workers Before
Arresting Them, VICE, 2017

Current Policies

A range of policies exist for investigation of prostitution and trafficking charges. While many states have determined through case law that having sex is not required for a prostitution arrest, not requiring sex is not the same as banning the practice. More recently, it was reported that the Department of Homeland Security was using the tactic to investigate human trafficking as well and engaging in sexual activity with people they suspected to be victims of exploitation as a means of investigation. Changing this practice will take both policy and culture change, and would not be a problem if sex work were not criminalized or if policing of the sex trade was being used as a proxy for anti-trafficking work.

Many departments not only lack a ban on the practice of sexual contact, a lack of clarity in procedure on sting operations involving the sex trades fosters sexual violence. Undercover officers pose as clients and set up sessions with sex workers. Sexual interactions range from negotiations for sexual services, undressing, touching, engaging in BDSM, masturbation, and having penetrative sex. These actions are then used as evidence that a person is engaged in prostitution and result in arrest, sometimes while being swarmed by a team of officers. As noted in the law review article, How Far Should Police Go, “Consent obtained through fraudulent means and misrepresentations can hardly count as actual consent.”

These actions normalize sex workers’ dehumanization and fosters other forms of sexual violence.

There have been attempts to address this behavior which have been met with significant pushback from law enforcement agencies. In 2014, Hawaii closed the exemption which allowed law enforcement to have sex during investigations. In 2018, Maryland criminalized officers’ ability to have sex with someone in their custody after investigations revealed that officers were pressuring people who had been arrested for sex. Federally, a bill introduced in 2018 by Rep. Jackie Speier would expand that provision to Federal law enforcement, but it has yet to make it out of committee. Much work is left to be done to begin addressing this practice of sanction, tax-funded sexual violence.

Litigation and Jurisprudence

While there has been state-based litigation about the use of sexual contact in prostitutions investigations, jurisprudence is scant. The standard of whether sex with a suspected sex worker is a violation of due process falls under the test established in United States v. Cuervelo, 949 F.2d 559, 567 (2d Cir. 1991), which established a test to determine whether or not government conduct is “outrageous.” Individual cases have tested specific elements of an operation, and produced a range of answers as to what constitutes outrageous behavior. In State v. Burkland, it was determined that because the officer had initiated sexual contact, the behavior was outrageous. In Commonwealth of Pennsylvania v. Chon, it was found outrageous that law enforcement paid a civil to have sex with workers at a local spa on four separate occasions – because it was four times. All of these rulings, though, only further dehumanize and make commonplace these experiences of sexual violence.

Demonstration photo of a protest with sign “Only Rights Will Fix the Wrongs”

Beyond Physical Contact

Banning physical, sexual contact while operating as a law enforcement officer should only be the beginning of towards the impact of trauma and violence that sting operations cause. But the trauma and violence inflicted during a sting operation is multi-layered. The process of negotiating a session can include explicit discussions of sexual acts and sexual performance. These intimate negotiations and exchanges are still coercive and consent to have them is still only gathered through fraud. Stings also frequently include releasing a person’s information to the press, sometimes including pictures, names and where a person lives. These are act of emotional and psychological abuse, acts of public humiliation meant to traumatize a person. The impact can be not just isolation and stigma from a persons’ family and community, but the emotional and psychological impacts of trauma. This is true both for people who are selling sex and for those trying to purchase sexual services.

Resources

“Frequent exposures to abusive police practices appear to contribute to an environment where client-perpetrated violence is regularly experienced. For FSWs who inject drugs, police exposure and client-perpetrated violence appear amplified.”

Katherine H. A. Footer et al. “Police-Related Correlates of Client-Perpetrated Violence Among Female Sex Workers in Baltimore City, Maryland”, American Journal of Public Health 109, no. 2 (February 1, 2019): pp. 289-295.
Articles

Recommendations.

At the Federal Level:

  • Congress: Pass a resolution that declares sexual activity while operating under the color of law or with an individual in their custody a violation of a person’s civil rights for which the survivor could access restitution
  • Congress: Hold a hearing on the pervasiveness of sexual violence perpetrated by federal law enforcement officers.
  • Congress, Administration: Request a report from the Government Accountability Office (GAO) on all regulations and Department policies on sexual conduct while operating under the color of law • Withhold departmental funding from enforcement agencies until they offer and implement a directive which bars and ensures accountability for sexual conduct while operating under the color of law.
  • Administration: Encourage states to pass similar laws through trafficking and COPS grant prioritization to jurisdictions who have the most stringent policies and monitoring mechanisms.
  • Congress: Encourage states to develop non-law enforcement reporting bodies for investigations and accountability of sexual violence by law enforcement through demonstration grants.
  • Congress: Ensure that victims can access supportive services through the Office of Victims of Crime.

At the State Level:

  • Legislative: Ban law enforcement from engaging in sexual contact while operating under the color of law for state law enforcement.
  • Legislature: Ensure non-law enforcement-based reporting mechanisms such as human rights councils and give them jurisdictional power to pursue enforcement for violations.

At the Municipal level:

  • Ban law enforcement from engaging in sexual contact while operating under the color of law for state law enforcement.
  • Legislature: Ensure non-law enforcement-based reporting mechanisms such as human rights councils and give them jurisdictional power to pursue enforcement for violations.