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HOWARD HUMAN & CIVIL RIGHTS LAW REVIEW © 2016 

The Legal Policing of Sex Work and The Fight To Eradicate Sex Trafficking In America

October 10, 2017

INTRODUCTION

 

          Sex trafficking, like human trafficking in general, is a heinous crime that is widely prevalent in America and most of the world. According to estimations by the United Nations, 2.4 million people around the world are being trafficked at any given time, and 80% of them for purposes of sexual exploitation.[1] The scary part about this estimation is that it probably underestimates the magnitude of the sex trafficking problem given the underground nature of the business. Different methods for combating sex trafficking have been implemented by many countries, and virtually all of them have criminalized sex trafficking in some way, shape, or form.

 

          There are many contentious dimensions in the debate of how to optimally combat sex trafficking. One of these dimensions, which is the focus of this Article, centers around sex work (i.e. prostitution). Some activists, politicians and scholars argue that criminalizing sex work reduces sex trafficking. Opponents argue that legalizing sex work is a better strategy to reduce sex trafficking. Some, on the other hand, believe that there is some third, better way in between both of the aforementioned arguments.

 

          In America, it is illegal to sell or purchase sex. However, would policy reform in sex work laws help or further hurt America’s fight to eradicate sex trafficking? This article seeks to explore whether legalizing prostitution could help to fight against sex trafficking in America. While the discussion of legalizing prostitution deserves its own article given the many possible social benefits and ramifications that may come into play, this Article only discusses the decriminalization of prostitution in the specific context of the role it would play in deterring sex trafficking violations. Part I will explain the difference between sex work and sex trafficking. Part II will provide economic-inspired methods for determining how best to reform current prostitution laws in America with the goal of achieving less sex trafficking violations. Part III will discuss ways to regulate sex work if it were to become legal with the goal of decreasing sex trafficking without infringing too much on the rights of sex workers.

 

I.  DISTINGUISHING SEX WORK FROM SEX TRAFFICKING

 

          Imagine that there are two girls, Girl A and Girl B. Girl A was fourteen years old when she started to sell her body for sex.[2] She ran away from home after her mother had a severe mental illness and her father committed suicide.[3] Girl A’s older boyfriend coerced her into prostitution and soon she began performing sexual intercourse with seven to ten men every day.[4] After working on the streets for two years, Girl A later began working in a brothel and she began resorting to drugs to dull her emotional pain.[5] In Girl A’s opinion, consent is never truly present in prostitution and prostitution is always a human rights abuse.[6]

 

          Conversely, Girl B embraces being a sex worker and proudly shares her profession with others.[7] She asserts that, although women can be exploited and forced into trafficking, some women become sex workers by choice and that sex work is not inherently exploitive or dangerous.[8] Moreover, in a recent interview, Girl B claimed that the average sex worker in America is a middle class to working class woman who works for herself by using the internet to place advertisements.[9]

 

          Girl A’s and Girl B’s alternative narratives on sex work are not uncommon, but highlight a key distinction between voluntarily choosing to enter the field of sex work and being coerced into that field. Sex work involves voluntary, consensual commercial sex.[10] Sex trafficking, on the other hand, is defined in the Victims Protection Act as “the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.”[11] Furthermore, sex trafficking inherently violates the Thirteenth Amendment, which provides that, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”[12] It is important to make this distinction between sex work and sex trafficking because anti-trafficking laws and initiatives can also unintentionally (or intentionally) affect sex workers who voluntarily enter that field.

 

          For example, in Cleveland v. United States, the Supreme Court held that members of a Mormon sect known as Fundamentalist, who believed in and practiced polygamy, violated the Mann Act.[13] The Mann Act makes an offense the transportation in interstate commerce of “any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.”[14] The decision turned on whether having one or more plural wives in addition to a lawful wife fit within the definition of “for any other immoral purpose.”[15] The Court relied on Reynolds v. United States to conclude that polygamous practices were not excluded from the Mann Act because polygamy had long been outlawed in American society.[16] While the Petitioners tried to argue that they were lacking the requisite criminal intent since they were motivated by a religious belief, the Court reasoned that whether an act is immoral within the meaning of the statute is not to be determined by the accused’s concepts of morality, but rather if the accused intended to perform, and did in fact perform, the act which the statute condemns.[17]

 

          Although Cleveland v. United States did not involve sex work, anti-sex trafficking statutes act as a catch-all for all forms of sex-for-pay markets, despite whether you enter the market voluntarily or involuntarily. This poses many restraints and dangers for those that do choose to become sex workers because it fosters “distrust between authorities and sex workers,” thereby increasing the risks of their work and placing sex workers in danger if they face a situation where they may need help.[18] Most would agree that sex trafficking laws are necessary because forced prostitution constitutes a serious human rights violation and those who are forced into prostitution are victims. On the contrary, however, voluntary sex work is not inherently dangerous nor violates human rights. Sex workers go into sex work for various reasons, such as due to poverty, lack of other options, better and more flexible working conditions, or even because it allows them to explore and express their sexuality.[19] While the social impact of legalizing sex work in America is very much debatable, there is a clear distinction between voluntarily and involuntarily entering the sex-for-pay market that is important to understand prior to determining whether legalizing prostitution could have a positive or negative impact in fighting sex trafficking.

 

II. ECONOMICS AS A LEGAL TOOL TO HELP STOP SEX TRAFFICKING

 

           Sex trafficking is definitely an issue of human rights, but one possible way of figuring out a partial solution for stopping the problem may be to analyze the issue through an economic lens because it can lead to a better understanding of the economic forces driving sex trafficking.[20] Criminals have strong incentives to traffic individuals for the purpose of sexual exploitation because the commercial sex industry as a whole is highly profitable.[21] It is not the purpose of this Article to assert that  economics alone would help eradicate sex trafficking, but rather how economics  can be used like  a singular tool from a toolkit to help find out how to effectively combat sex trafficking, as well as how not to combat sex trafficking.

 

          Visualize prostitution as a supply and demand chart – the demand side comprises individuals who purchase sex, while the supply side includes both voluntary prostitutes and sex-trafficking victims.[22] Countries have implemented different policies that affect prostitution in hopes of combating sex trafficking. For example, Romania focused on only the supply side of the market by making it illegal to sell sex, but legal to buy sex (the “Supply Model”).[23] Under the Supply Model, law enforcement leaves the demand side alone and only arrests individuals who sold sex.[24] Conversely, a second legislative approach that was first introduced in Sweden in 1999 is to criminalize only the purchasing of sex (the “Demand Model”).[25] A third legislative approach, one used by countries such as Germany and the Netherlands, is to legalize sex work and related activities altogether, such as pimping and running brothels (the “Hands-Off Model”).[26] Under this approach, law enforcement focus on fighting sex trafficking directly and other exploitative forms of prostitution rather than using resources that otherwise would have be devoted to investigating, arresting, and prosecuting buyers and sellers of sex.[27] Finally, a fourth legislative approach is to punish both the seller and buyer of sex (the “Supply-and-Demand Model”).[28] America (except for a few counties in Nevada) uses this model.[29] Each of these four models is based on an economic theory and each carries its respective pros and cons.

 

          Proponents of the Supply Model, for instance, argue that by decreasing the supply of sex, the buyers of sex would begin to dwindle in numbers as well. Opponents, however, argue that decreasing the supply of sex would only increase the amount of sex trafficking victims because the criminals do not themselves sell their bodies for sex and would thus try even harder to appease the demand side.[30]

 

          Proponents of the Demand Model argue that focusing on the demand side of the sex trade could potentially shrink the market for prostitution, which would in turn reduce the profitability of sex trafficking and thereby lead to sex traffickers supplying fewer victims to the market.[31] This model has actually grown in popularity among different countries, and some claim that it successfully reduced sex trafficking within their borders.[32] Still, there is not enough empirical evidence to support that assertion.[33]

 

           Proponents of the Hands-Off Model argue that it is, above all, the criminalization of prostitution that makes trafficking attractive in the first place.[34] Therefore, permitting prostitution will help reduce the prevalence of sex trafficking. Furthermore, buyers who are already participating in the market and are currently purchasing sex with victims of trafficking may switch to purchasing sex with non-trafficked sellers to avoid criminal sanction.[35] Nonetheless, opponents argue that allowing the sex work market to flourish would actually increase the amount of sex trafficking because criminals can increase the supply with less risks of being punished.

 

          How do the three aforementioned models compare to America’s choice of model? Well, proponents of the Supply-and-Demand Model argue that targeting both supply and demand eliminates the sex market altogether, thereby eradicating the sex trafficking market.[36] Studies have shown, however, that most prostitution-related arrests in the America are made against sellers of sex than the buyers, which contradicts the purpose the of Supply-and-Demand Model.[37] Some even estimate that as many as nine out of every ten prostitution related arrests in America are of sellers.[38] While gauging hard numbers on the seller-buyer arrest disparity is difficult, America’s Supply-and-Demand Model de facto resembles the Supply Model. Thus, America is left with 3 viable alternatives if it chooses to reform its current prostitution laws (assuming the sole purpose of doing so is to curb sex trafficking). First, America can implement stricter law enforcement policies that target buyers of sex so that its current Supply-and-Demand is more balanced. Second, America can use the Demand-Model to forego punishing the sellers of sex and focus on punishing the buyers of sex. Third, America can adopt the Hands-Off Model and legalize prostitution altogether.

 

           Unfortunately, and not surprisingly, there really does not seem to be one perfect model that eradicates sex trafficking completely, which is why sex trafficking is so pervasive on an international scale. While the Demand-Model seems promising and is gaining popularity among different countries, and while the Hands-Off Model allows voluntary sex workers to practice their choice of career free of encumbrances, there are many social implications that would arise by changing America’s model altogether. In other words, the most effective change that America could take in order to decrease sex trafficking while at the same time making as little of a social impact as possible is to make the Supply-and-Demand model more balanced by targeting the buyers of sex with as much or more ferocity as it does sellers.

 

III.  REGULATING SEX WORK

 

          Even if America did opt to legalize prostitution and other related sex work activities, should it be regulated? If so, how should it be regulated?  

Some argue that sex work should not be regulated. Proponents of the decriminalization-without-regulation position argue “sex workers be given the right to exchange sexual services on their terms and on their conditions, not on the terms of the state, the police, pimps, male managers, or clients” because regulations would lead to sex workers’ further vulnerability and social isolation.[39] Since sex is a matter of individual choice, these proponents further argue sex work should be exempt from any government regulation or supervision, such as zoning, licensing, or public health protocols.[40]

 

            Meanwhile, others argue that sex should be a regulated market. Proponents of  the decriminalization-with-regulations position argue that sex workers are too deeply vulnerable to exploitation and health risks for the government to be completely hands-off.[41] Furthermore, sex workers, according to these proponents, should be treated as though they are entitled to the same legal protections as other “socially accepted” workers.[42] For example, regulations would empower sex workers to access courts to enforce their contracts with customers and third-party intermediaries, enable sex workers to access more social support services, increase the safety for sex workers when they meet clients, and normalize the career of sex work in general.

 

           In sum, there are many social arguments in regard to whether or not sex work should be regulated. Even if sex work is regulated, the degree in which it should be regulated, whether it be heavily or hands-off, is a question that is not easily solvable and with an answer that is probably somewhere in the middle.

 

CONCLUSION

 

          Those who think that prostitution is inherently harmful, and those who believe that sex trafficking is inevitable so long as demand for commercial sex is high, may very well end up taking the policy position that prostitution should be illegal. However, there are many that disagree with the argument that permitting prostitution increases trafficking. Regardless, the issue of sex trafficking is multi-faceted and cannot be solved through prostitution laws alone, especially because prostitution reform in of itself would have many social implications. With that being said, creating policies and laws that decriminalize sex work is an interesting and possible solution to help eradicate sex trafficking that should at the least be analyzed more.  America’s current model of policing prostitution does little to prevent sex trafficking, but then again, is there even a model that can? One thing is certain: given the deep international pervasiveness of sex trafficking, empirical data should be studied from a multitude of countries, not just one.

 

 

____________________________________________________________________________________________________________

 

[1]              The Associated Press, U.N.: 2.4 million human trafficking victims, USA Today (Apr. 4, 2012), http://usatoday30.usatoday.com/news/world/story/2012-04-03/human-trafficking-sex-UN/53982026/1.

 

[2]              Joyce Hackel, After Seven Years in the Dublin Sex Trade, Rachel Moran Says Prostitution Is Always Abuse, PRI (Oct. 1, 2015),  http://www.pri.org/stories/2015-10-01/after-seven-years-dublin-sex-trade-rachel-moran-says-prostitution-always-abuse.

 

[3]              Id.

 

[4]              Id.

 

[5]              Id.

 

[6]              Id.

 

[7]              Thaddeus Russell & Alexis Garcia, Former Sex Worker & Activist Maggie McNeill on Why We Should Decriminalize Prostitution: ‘This Is Not What Feminism Was Supposed to Be,’ REASON.COM (July 14, 2014), https://reason.com/reasontv/2014/07/14/former-sex-worker-activist-maggie-mcneil

 

[8]              Id.

 

[9]              Id.

 

[10]            Rachel Marshall, Combating Human Trafficking Through Law And Social Policy: Sex Workers And Human Rights: A Critical Analysis Of Laws Regarding Sex Work, 23 Wm. & Mary J. of Women & L. 47, 49-51

 

[11]            Victims Protection Act, at 103.

 

[12]            U.S. Const. XIII

 

[13]            Cleveland v. United States, 329 U.S. 14 (U.S. 1946)

 

[14]          Id. at 16.

 

[15]          Id.

 

[16]            Id. at 18. See Reynolds v. United States, 98 U.S. 145, 164 (1878).

 

[17]            Id. at 20.

 

[18]            Supra note 7.

 

[19]            Id.

 

[20]            Supra not 11.

 

[21]            Id.

 

[22]            Id.

 

[23]            See U.S. Dep't of State, Bureau of Democracy, H.R. and Lab., 2008 Human Rights Report: Romania 12 (2009), http://www.state.gov/j/drl/rls/hrrpt/2008/eur/119100.htm

 

[24]            Id.

 

[25]            Donna M. Hughes, The "Natasha" Trade: The Transnational Shadow Market of Trafficking in Women, 53 J. Int'l Aff. 625, 649 (2000)

 

[26]            See, e.g., Alissa J. Rubin, To Discourage Prostitution, France Passes Bill That Penalizes Clients, N.Y. Times (Apr. 6, 2016), http://www.nytimes.com/2016/04/07/world/europe/to-discourage-prostitution-france-passes-bill-that-penalizes-clients.html

 

[27]            Supra note 11.

 

[28]            See Ronald Weitzer, Sex Work: Paradigms and Policies, in Sex for Sale: Prostitution, Pornography, and the Sex Industry 21 (Ronald Weitzer ed., 2d ed. 2010) ("Prostitution is treated in a more uniform manner in the United States, with criminalization being the reigning policy. This means that solicitation to engage in an act of prostitution is illegal, except in certain counties in Nevada, where about 30 legal brothels exist.").

 

[29]            Supra Note11

 

[30]            Id.

 

[31]            Id.

 

[32]            Id.

 

[33]            Id.

 

[34]            See Alison Murray, Debt Bondage and Trafficking, in Global Sex Workers: Rights, Resistance, and Redefinition 60 (Kamala Kempadoo & Jo Doezema eds., 1998) ("It is the prohibition of prostitution and restrictions on travel which attract organized crime and create the possibilities for large profits, as well as creating the prostitutes' need for protection and assistance.").

 

[35]            Supra Note 11

 

[36]            Id.

 

[37]            See Moira Heiges, From the Inside Out: Reforming State and Local Prostitution Enforcement to Combat Sex Trafficking in the United States and Abroad, 94 Minn. L. Rev. 428, 437 (2009) (“Unfortunately, rather than focusing on reducing the market for sex trafficking, police, prosecutors, and courts have typically viewed pimps and purchasers as trivial or derivative offenders, while targeting prostituting persons for arrest and prosecution.”).

 

[38]            See The Economist, Selling Sex: Hold the Backpage, The Economist (July 18, 2015).

 

[39]            Elizabeth Bernstein, What's Wrong with Prostitution? What's Right with Sex Work? Comparing Markets in Female Sexual Labor, 10 HASTINGS WOMEN'S L.J. 91, 109 (1999).

 

[40]            Adrienne D. Davis, Regulating Sex Work: Erotic Assimilationism, Erotic Exceptionalism, and the Challenge of Intimate Labor, 103 Calif. L. Rev. 1195, 1209

 

[41]            Id.

 

[42]            Carrie Benson Fischer, Employee Rights in Sex Work: The Struggle for Dancers' Rights as Employees, 14 LAW & INEQ. 521, 552 (1996)

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