Sex Work and Civil Asset Forfeiture Increasingly Go Hand in Hand

Uncle Sam as über pimp


West Midlands Police/Flickr

In the wake of Tuesday's federal raid on male-escort advertising site Rentboy.com, many on social media have suggested anti-gay motivations, "a throwback to when the police raided gay bars in the 50s and 60s." While I'm glad if this framing gets more gay-rights groups to take up sex-work advocacy, the government's interest in stopping commercial gay sex is surely more motivated by the commercial aspect here than the man-on-man component. We're riding high on a wave of state successes in shutting down prostitution-related businesses—from MyRedbook.com to escort services like Sensual Alaska—and cracking down on commercial sexual activity, be it street-based prostitution or erotic massage parlors.

This is all bolstered by the guise of stopping "human trafficking," and aided by massive amounts of federal funding plus newly granted wiretapping, asset forfeiture, and other law enforcement powers. As Scott Shackford pointed out, the Department of Homeland Security (DHS) and the New York City Police Department (NYPD) didn't go after Rentboy.com out of a conviction that gay sex workers pose a threat to national safety but because they could seize $1.4 million from employee bank accounts, along with their homes and other assets. This is not so much a moral crusade—not for police, prosecutors, or federal agencies anyway—as a money-grubbing one. 

Under a variety of statutes, from the Travel Act (which is what Rentboy.com employees were charged with violating) to the recently passed Justice for Victims of Trafficking Act (JVTA), the federal government can gain permission to seize assets from any number of people connected to any kind of prostitution business. And among many prostitution-related laws passed in the states over the past decade, adding asset forfeiture possibilities has been quite a popular move. At least 41 states* and the District of Columbia now allow some form asset forfeiture for commercial-sex offenses, up from 32 in 2012.

Some of this falls under state laws saying assets used in relation to any felonies—of which aiding in the prostitution of someone under 18 is usually included—are subject to forfeiture. Other state laws specifically address asset forfeiture for commercial-sex crimes, from human trafficking to solicitation to "promoting prostitution." And while some states require a conviction before cash, cars, or property may be seized (aka criminal forfeiture), many allow civil asset forfeiture, wherein no conviction or even charges are necessary before police and prosecutors swoop in.

"For the police to seize an individual's property, most jurisdictions require that the officer merely have  'probable cause' to believe the property is subject to forfeiture," the Institute for Justice explains. "What happens after a seizure depends on the jurisdiction, the type of property seized and the type of forfeiture that is being sought. In some cases, the police may simply declare a property forfeited—permanently taken from its owner—without judicial involvement. Prosecutors or district attorneys may also initiate forfeiture proceedings in court. A judge will then determine if the assets are to be forfeited." 

Once assets are forfeited, they may all go to local police, or they may be split between police, government agencies, and special crime-fighting or victims' funds. 

"Forfeiture was originally presented as a way to cripple large-scale criminal enterprises by diverting their resources," according to the American Civil Liberties Union. "But today, aided by deeply flawed federal and state laws, many police departments use forfeiture to benefit their bottom lines, making seizures motivated by profit rather than crime-fighting." And in cases where citizens are allowed to request their stuff back, "legally regaining such property is notoriously difficult and expensive, with costs sometimes exceeding the value of the property."

Government officials, meanwhile, think it's not easy enough to steal people's things. For instance, the JVTA, passed in May, just lowered the standard for forfeiture of targeted property by allowing the feds to access assets merely "involved in" the commission of a crime, not just those "used or intended to be used" in that crime's commission.

"By changing the standard, prosecutors (don't) have to show direct traceability between the crime and the targeted assets," Congress notes. "Instead, they only need show that the assets were involved in the crime or used to conceal the source of criminal assets." While this might seem palatable if it was only used against major trafficking offenders, remember that under the JVTA, working for an escort-advertising website such as Rentboy or soliciting prostitution from a 17-year-old (or a cop playing a 17-year-old) could get you charged with human trafficking. 

Federal lawmakers aren't the only ones expanding asset forfeiture's reach recently. A Pennsylvania measure signed into law last summer lets prosecutors seize assets from someone charged with human trafficking absent a conviction, with basically no oversight of how this works out. Indiana passed legislation this past May to allow civil asset forfeiture of property used "to facilitate" human trafficking or for "promoting prostitution"—a crime that can include owning a property where prostitution occurs or simply encouraging someone to have sex for money.

Richard Masoner/Cyclelicious/Flickr

In Minnesota, soliciting or promoting prostitution in any way will do. In Maryland, any form of suspected "pandering" (i.e., "taking, placing, persuading, inducing, enticing, encouraging, or benefiting" from someone's prostitution) can trigger asset forfeiture. In Colorado, "every building or part of a building including the ground upon which it is situated and all fixtures and contents thereof, every vehicle, and any real property shall be deemed a class 1 public nuisance"—i.e., a place legally up for asset-forfeiture grabs—if it was "used as a public or private place of prostitution or used as a place where the commission of soliciting for prostitution," pandering, pimping, or human trafficking occured.

Places without strong asset forfeiture laws for prostitution have been beefing them up. In D.C., lawmakers are angling to impound the cars of anyone suspected of soliciting prostitution. In September 2014, "Albuquerque, which has long seized the cars of suspected drunken drivers, began taking them from men suspected of trying to pick up prostitutes, landing seven cars during a one-night sting," The New York Times noted last November.  

This has been an increasingly popular tactic lately, one which lawmakers claim can help "end demand" for prostitution by instilling fear into the hearts of potential "johns." Yet some cities have been trying it for decades, with (surprise, surprise) no corresponding prostitution drop. Portland began seizing solicitors cars in 1989; certain Connecticut cities in the early '90s; Los Angeles tried it out in the mid-aughts.

"Since the city of Oakland began seizing the cars of those caught soliciting prostitution in 1998, laws allowing municipalities to take vehicles of scofflaws have become popular" in California, the Los Angeles Times noted in 2003. "Although some critics warn that the punishments often seem to outweigh the crimes, especially in cases where the driver is not the owner, many Los Angeles officials said they believe the laws are necessary to send a message to potential lawbreakers." 

The Times' brings up an important point: seized property doesn't always belong to the criminals (or "criminals"). In drug cases, we've seen cops go after a teen's grandparent's home because the kid sold pot on the porch. In prostitution cases, cops can seize a suspected client's car even if the vehicle belongs a spouse, a friend, an employer. If a sex worker invites a client into a relative's house or a local hotel for paid sex, that home or business could theoretically be seized. 

How does this all play out in practice? C.J. Ciaramella at the Washington Free Beacon points to one example, involving a Pennsylvania man named Robert Bond who was charged with misdemeanor solicitation. 

As part of a new diversion program for johns, Bond can get the crime expunged from his record after paying a $215 court fine and attending a $250 "sexual education and responsibility" class. But Philadelphia also seized his car, and it has been sitting in impound since August. A notebook with all of Bond's landscaping clients is inside his car. The police won't let him retrieve it.

In Morris County, New Jersey, prosecutors are seeking to keep $10,000 in cash and other items seized during massage-parlor prostitution investigations. The Las Vegas "Pimp Investigation Team" claims to have "seized hundreds of thousands of dollars in merchandise and money from suspected pimps."

In Arizona, Ulises Ruiz and his girlfriend, suspected of running illegal massage businesses, had cars, cash, and their home seized by Pima County prosecutors. "It was found by clear and convincing evidence that all of his assets … were, in fact, the proceeds of criminal activity," said Pima County Deputy Attorney Julie Sottosanti.

To make matters worse, police say the $15,000 Ruiz's girlfriend put up for Ruiz's bond is invalid, since that money should have been forfeited to them already. Ruiz remains incarcerated. That's right: cops can keep you in jail indefinitely, without convicting you of any crimes, because any money you might use to get out of jail is assumed to be the proceeds of the same criminal activity they haven't yet proved on you. 

As criminal justice reform gains momentum in the United States, media and activists have started paying more attention to asset forfeiture abuse. But even as lawmakers pay lip service to reforming asset-forfeiture laws, especially those related to drug offenses, they keep pushing new ones when it comes to sex crimes. Here we have one more area where the crusade against commercial sex (or "War on Whores," as writer Maggie McNeill likes to call it) is being used to justify the sort of state overreach formerly reserved for the drug war and fighting terrorism.

Which is all to say: the Department of Homeland Security seizing $1.4 million from Rentboy.com is likely only the beginning. But that does prompt the question: if pandering and sex trafficking are defined (in part) as receiving anything of financial value from the commercial sexual labor of another, doesn't this make Uncle Sam the über pimp? 

* States with asset forfeiture for prostitution-related offenses: Alabama, Alasksa, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin