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“People have been very successful in using this term sexual exploitation in pushing legislation,” says Ann Jordan, former director of the Program on Human Trafficking and Forced Labor at American University’s Washington College of Law and an attorney who has defended the rights of trafficked persons. “Many of the people they talk to never ask them what they mean by it.” But while sex work opponents have been successful in passing laws against “sexual exploitation,” Jordan says, “they are not enforceable because no one knows what this means.”
On the domestic front, anti−sex work activists scored one of their biggest wins with the 2005 reauthorization of the Trafficking Victims Protection Act (TVPRA). TVPRA earmarked $50 million for law enforcement agencies to “develop and execute programs targeted at reducing male demand and to investigate and prosecute buyers of commercial sex acts.” Although ostensibly aimed at supporting victims of forced labor, TVPRA provides money for efforts to discourage men from hiring sex workers, including quasi-legal and legal activities such as escorting, pornography, stripping, and phone sex, as well as for investigating the people they attempt to hire. Although nearly all prostitution-related law in the United States is made at the state or municipal level, redefining prostitution as trafficking provides a rationale for federal action against the sex trade.
Meanwhile, legislators in many states have responded to the demands of feminist activists by boosting penalties for prostitution-related offenses and prioritizing enforcement. “Think about it,” Jordan says. “If you are a politician on the state or national level, and someone comes to you and says, ‘There are these horrible men who are holding these innocent little virgins, and all you need to do is put money into law enforcement,’ ” you will want to act. Stepping up vice enforcement allows legislators to avoid the far more complicated steps necessary to support people who have been trafficked or to meaningfully address immigration and labor policies that drive people to migrate illegally or accept dubious work offers when few legal options are available. Tackling problems such as those, Jordan says, “doesn’t allow you to go around and say you are ‘saving sex slaves.’ ” The prohibitionist approach means “you don’t actually have to deal with the people at the edges of society.”
What happens when people in the sex trade—the people these laws supposedly are meant to protect—push back? Anti-trafficking activists often respond by denying their existence. At the June anti-Backpage protest, I watched Norma Ramos’ staff distribute fliers to passers-by cautioning them against the very term sex work, a phrase that “completely masks the physical, psychological, and sexual violence inflicted on prostituted persons,” although they had to acknowledge “it is a term that women in prostitution themselves use and prefer.”
If this semantic debate seems a bit arcane for placards and fliers, the purpose was revealed 15 feet further down the sidewalk, where members of the Sex Workers Outreach Project New York (SWOP-NYC), a volunteer-based, grassroots group dedicated to improving the lives of sex workers, held a quiet counter-protest. SWOP members—current and former sex workers among them—greeted New Yorkers on their way through Greenwich Village with smiles and fliers, inviting them to throw their support behind the people who had real expertise on the sex industry. That day the police repeatedly instructed SWOP members to stay half a block away from Ramos’ people. They made no such demands of Ramos.
Feminists, Cops, and Conservatives
An article in the August issue of Marie Claire follows Andrea Powell, executive director of Free Aware Inspired Restored (FAIR) Girls, as she trolls Backpage for classified sex ads she suspects were placed by or for minors: “Putting in an earbud and picking up her pink-and-black Kate Spade-encased iPhone to dial a local police officer, Powell says urgently, ‘We have to report her now.’ ” But when the cops set up a sting operation against the advertiser, the story continues, “she said she was in fact an adult—and didn’t want help from the police or anyone else.”
Some activists view calling the cops to “rescue” people from the sex trade as the model of a successful human rights intervention. They don’t count their victories by the number of people they help; they count them by arrests.
These tactics are part of a rise in what Elizabeth Bernstein calls “carceral feminism”; Harvard law professor Janet Halley calls it “governance feminism.” Feminists once offered a powerful critique of the criminal justice system, but that argument has faded as they have found power within it. Not surprisingly, they have found conservative allies along the way.
In redefining sex work as an issue of bad men doing bad things to enslaved young women, anti-prostitution activists have recast themselves as liberators instead of scolds, while simultaneously making their message more attractive to the social conservatives who have at times distrusted them. The conservative Heritage Foundation has taken up the cause of “fighting sex trafficking,” though mostly as a way to beat up on the Obama administration and the United Nations for not adopting even more punitive policy. The Protect Innocence Initiative, a partnership between the anti-prostitution Shared Hope International and the American Center for Law & Justice (the right’s answer to the ACLU), gave a presentation at the Values Voters Summit in Washington last September touting the 40 bills it has persuaded state legislators to introduce since December 2011. The title: “Can You Protect Your Children From the Commercial Sex Industry?” Shared Hope International’s director, former Rep. Linda Smith (R-Wash.), explained to the Values Voters audience that they should “put this issue in its proper position” alongside the anti-abortion cause.
Donna M. Hughes, a professor of women’s studies at the University of Rhode Island, who praised George W. Bush for “put[ting] the fight against the global sex trade on par with the campaign for democracy in Iraq and the war on terrorism,” is another conservative-friendly voice in the anti−sex work chorus. Hughes banged her own curious “women’s rights” drum in support of the wars in Iraq and Afghanistan in a 2004 Washington Post op-ed, co-written with second-wave feminist Phyllis Chesler, in which the duo criticized feminists for not seeing that conservatives “could be better allies on some issues than the liberal left has been.”
Sex workers bear the brunt of this coalition’s preference for using law enforcement to protect women’s rights. Increased penalties for “sex trafficking,” supported by such groups as the National Organization for Women New York (NOW-NYC) and the Chicago Alliance Against Sexual Exploitation (CAASE) have led to high-profile sting operations, such as a January 2012 bust in New York snaring a reported “200 johns” and seized many of their vehicles prior to arraignment. But demanding cops protect women by “going after the johns” doesn’t exempt sex workers from arrest. A 2012 examination of prostitution-related felonies in Chicago conducted by the Chicago Reporter revealed that of 1,266 convictions during the past four years, 97 percent of the charges were made against sex workers, with a 68 percent increase between 2008 and 2011. This is during the same years that CAASE lobbied for the Illinois Safe Children Act, meant to end the arrest of who the bill describes as “prostituted persons” and to instead target “traffickers” and buyers through wiretaps and stings. Since the Act’s passage in 2010, only three buyers have been charged with a felony. These feminist-supported, headline-grabbing stunts subject young women to the humiliation of jail, legal procedures, and tracking through various law enforcement databases, sometimes for the rest of their lives.
“It’s fascinating that women who claim to be feminists” are so willing to use the law in this way, says Ann Jordan. Supporting anti-prostitution enforcement requires them to call in the muscle of “all these institutions that have oppressed women forever,” she notes. “But they are willing to use the law to coerce a particular kind of behavior from women.”
As a staff attorney at the Sex Workers Project at the Urban Justice Center, Melissa Broudo deals with the aftermath of crackdowns like the one in New York last winter. Broudo is one of the few lawyers who works to vacate the sentences of people who have been trafficked and who have been convicted of prostitution charges. “The hardest piece I’ve dealt with,” Broudo says, “is trying to represent individuals who don’t fit the model. They aren’t a 12-year-old girl, or whatever the portrayal is. Men can be trafficked. Trans women and trans men can be trafficked, and are trafficked. Older women can be trafficked. I have clients who fall within all different categories, but they [don’t match the conventional] picture of trafficking.”
Oversimplified portrayals of trafficking can have devastating consequences for those who are trafficked. “When I am vacating prior convictions for survivors,” say Broudo, “I view it as a legal hurdle if it’s someone who isn’t a cisgender [nontransgender] female minor at the time. And it shouldn’t be that way.” Broudo concedes that “you need people to understand that trafficking exists.” But she adds that “awareness isn’t enough, and awareness campaigns can have negative consequences. When somebody like [New York Times columnist] Nicholas Kristof writes an article about shutting down Backpage or applauding law enforcement efforts, it creates this picture that the answer is criminalization and punishment, and then people think we need to arrest more people, and that’s incredibly detrimental. And unfortunately, when there is more money and a mandate for arrests, that will often result in sex workers who may or may not have been forced into sex work being arrested.”