Criminalization turns an act into a crime. Criminalization turns a citizen into a criminal. Criminalization turns a community into a target population.
What are Third Party Charges?
One of the broadest categories criminalizing the sex trade is third party charges, or those who support, facilitate, assist, or simply have knowing proximity to another person exchanging sex. These laws may use a range of terms, depending on the state, including facilitation, pandering, procuring or pimping, brothel keeping or a combination. All of the charges require that the third party be aware that their actions are in the commission of commercial sex, meaning that if a person does not know that’s going on (such as a taxi driver), they are not liable. These laws were originally envisioned to criminalize those thought to be “managing” others trading sex, but the charges themselves require no victimization, violence, coercion or exploitation. This means that many people who are prosecuted under these laws are peers, including other sex workers, partners, and people who act in an “Assistant” role.
- An individual who drives someone to their appointment to see a client and waits outside during the session. (Facilitation of prostitution)
- Posting an ad online for another person. (Promotion of prostitution)
- If someone asks another sex worker to see a client together, because that client has asked them to find a second provider. (Procuring or pandering for the purposes of prostitution)
- If someone refers a client to another and gets a referral fee. (Receiving the proceeds of prostitution)
- If two sex workers are using the same apartment to work out of. (Brothel keeping)
- If two individuals are engaging in street-based sex work and one person acts as a look-out and is holding the cash that person has made so far that night. (Assisting, facilitating the prostitution of another person, receiving proceeds made from prostitution)
Of the different areas of criminalization of the sex trades (loitering, prostitution, patronizing), this area is the broadest area of behavior, and is almost always a higher penalty than other prostitution-related charges.
The Role of Website Operators
From 2014 to 2021, there have been 11 federal cases brought and numerous state prosecutions for people who operate websites where sex workers advertise under third party charges. In the most prominent example, the owners of Backpage.com were charged with promotion of prostitution, with the claim that the owners knew that they were knowingly operating a site used for prostitution and were actively seeking to expand this business.
Example of a Third Party Law: Wyoming
WY Stat § 6-4-103 (2014)
Promoting prostitution; penalties.
(a) Except as provided in W.S. 6-2-701 through 6-2-710, a person commits a felony if he:
(i) Knowingly or intentionally entices or compels another person to become a prostitute;
(ii) Knowingly or intentionally procures, or offers or agrees to procure, a person for another person for the purpose of prostitution;
(iii) Having control over the use of a place, knowingly or intentionally permits another person to use the place for prostitution; or
(iv) Receives money or other property from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution.
(b) The felony defined by this section is punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both. However, the crime is a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both, under paragraph (i) of subsection (a) of this section if the person enticed or compelled is under eighteen (18) years of age.
Federal Third Party Charges
While there is no federal crime against prostitution, there is a federal law criminalizing third parties. Under the Mann Act (18 USC 2421), previously known as the White Slave Traffic Act, it is a federal crime to move someone across state lines for the purposes of prostitution. This has included physically transporting, as well as arranging travel. The law is still used often by federal prosecutors, who consider it a proxy for trafficking charges.
In 2018, that was expanded under FOSTA/SESTA to include all operators, owners and managers of an interactive computer service which facilitates commercial sex. Because of the broad definition of both “facilitation” and “interactive computer service,” this has the potential to federally criminalize sex worker organizers who manage listservs where sex workers connect, or apps where sex workers can connect and share information. Immediately after the passage of FOSTA/SESTA, dozens of websites which offered venues for sex workers and those looking to non-commercially date closed in the face of potential liability. See the list of website closures here.
18 U.S. Code § 2421A – Promotion or facilitation of prostitution and reckless disregard of sex trafficking
(a) In General.—Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in  section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both.
(b) Aggravated Violation.—Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person and — (1) promotes or facilitates the prostitution of 5 or more persons; or (2) acts in reckless disregard of the fact that such conduct contributed to sex trafficking, in violation of 1591(a), shall be fined under this title, imprisoned for not more than 25 years, or both.
Some states have tiers which increase the severity of third party charges. This is unique by state, and may not require any form of victimization, including having multiple people involved (Texas, first degree felony), if they have previously been convicted of a prostitution-related charge (Ohio, second degree felony), knowing the person engaged in commercial sex was HIV positive (Pennsylvania, third degree felony) or if they are married (Montana).
The criminalization of sex trafficking involves compelling an adult to engage in commercial sex through force, fraud or coercion; or (2) if the person who exchanges sex is a minor.
When a third party facilitates another person to exchange sex and uses force, fraud or coercion to do so, this may reach the legal definition of human trafficking. In some states, there are tiers of third party charges where a more severe penalty for facilitation involving force, fraud or coercion in addition to a human trafficking law. In Oregon, for example, the crime of Promoting prostitution criminalizes someone who “engages in any conduct that institutes, aids or facilitates an act or enterprise of prostitution” and is a Class C felony. “Compelling Prostitution”, which is in the prostitution subsection of the criminal code, involves someone who “Uses force or intimidation to compel another to engage in prostitution or attempted prostitution” and is a Class B felony. The state also has a human trafficking law which would criminalize similar behavior, and is a Class A felony.
For minors who trade sex, having a third party around, including other minors, does not require any force, fraud or coercion to be considered human trafficking. Many states have tiered these laws around age within their third party statutes, and have passed human trafficking laws which criminalize similar behavior.
Two states, Maine and Maryland, have re-titled their promotion of prostitution laws as “human trafficking.” Both states have a misdemeanor human trafficking charge which requires no force, fraud or coercion, and an aggravated human trafficking statute, which requires force, fraud or coercion for adults.
Only one state, Massachusetts, does not require force, fraud or coercion in their human trafficking law as applied to adults in the sex trade. This means that in state-level human trafficking prosecutions, the prosecutor did not have to prove that any victimization of another person occurred, such as in this case against a woman who owned a massage parlor.
What is the impact of criminalizing third parties?
Of all prostitution-related charges, these are often the least charged and least understood. Of the individuals who receive third party charges, the relationships and experiences have a range of diversity which provides little information. Here’s what we do know. Read more: The Decriminalisation of Third Parties, Global Network of Sex Worker Projects, 2016.
Some people want to work for a manager, work collectively, or have someone help them out. Just like every other area of work, some people with to work independently while others prefer to have someone else manage some level of management who will arrange aspects of work. Especially if a person has a barrier to being able to operate independently, such as not being a native English speaker or being new to the industry, having others post ads or arrange clients and logistics can facilitate work that would not be otherwise possible. Isolation, or even the perception of isolation, can mean increased vulnerability to violence. In trying to access harm reduction support, this can catalyze someone to seek our others either as a manager, as an assistant, as a bodyguard, or a peer/colleague who can perform those functions while working collectively. Read more: Third Parties (Venue Owners, Managers, Security, etc.) and Access to Occupational Health and Safety Among Sex Workers in a Canadian Setting: 2010-2016
During periods of market disruption, sex workers are more likely to look for a third party, and predatory third parties are more likely to reach out. One of the most significant findings from research done after the closure of Backpage was that sex workers reported aggressive outreach from third parties offering to find clients, including those who had previously enacted violence. When there is increased desperation for those who trade sex, such as when there is a large website closure or other form of market destabilization, people looking to prey on sex workers who are looking for clients. Additionally, sex workers have reported that under asymmetrical criminalization, and under increased policing of clients, they are more likely to rely on a third party, who is less likely to be profiled as working in the sex trade. Working for someone is not inherently exploitative, but relying on a single person for access to resources does create a vulnerability to exploitation.
Under the situation described above, the owners of Backpage.com were arrested and charges with promotion of prostitution, meaning that the utilization of third party charges against individuals who for operating a site which allowed many to work independently, emboldened others to attempt to fill this role under compromised circumstances.
Even where selling sex is decriminalized, third party charges expose sex workers to criminalization and legally enforce isolation. In the United Kingdom, sex workers have reported that individuals looking to enact harm and violence will threaten reporting them under brothel keeping laws, or other third party laws.