Free Press

Alabama Bans Publishing of Prostitution Mugshots, Allows Cops to Hold Suspected Sex Workers for 72 Hours

Constitutional violations abound in Alabama "Human Trafficking Safe Harbor Act."


modified mugshots

Under a little-heralded new Alabama rule, it's illegal to publish the mugshots of people arrested for prostitution. Alabama law now stipulates that these mugshots are "not a public record and may not be published in any printed or electronic media or provided to any person" without special permission from a district judge. "We're trying to look at these women less as criminals and more as victims, and we don't want to see them be revictimized," said Rep. Jack Williams (R-Birmingham), who sponsored the legislation.

I've railed many times against the journalistic practice of publishing the mugshots of people arrested for prostitution or solicitation of prostitution. Considering the stigma surrounding prostitution, I think any "public interest" served in seeing the faces of those merely arrested for this misdemeanor offense is generally outweighed by the long-term damage it could do—especially in the Internet era—to the the lives and reputations of these individuals. But the decision whether to publish prostitution mugshots, or any mugshots, should be matter of journalistic ethics, not government mandate.

If Alabama lawmakers really believe that all people selling sex are victims, perhaps they should repeal laws that make selling sex a crime. But as long as prostitution is a crime in Alabama, there's no justifying a categorical ban on publishing prostitution-arrest mugshots. As Alabama Press Association lawyer Dennis Bailey said, "It's a very blatant form of prior restraint," which is unconstitutional.

What's especially strange here is that law passed the state legislature in May and took effect August 1, but newspaper editors say they are just hearing about the measure now. This seems like a pretty big oversight on both the part of state officials and Alabama journalists, who covered the legislation that the mugshot-ban was part of but apparently failed to notice that particular part. Meanwhile, officials failed to specify what, if any, punishment could come from violating the ban.

The main focus of the legislation, known as the Alabama Human Trafficking Safe-Harbor Act, was allowing law-enforcement to decline criminal charges for minors engaged in prostitution, and instead refer them to social services or state custody. Alabama police arrested three minors for prostitution in 2015, according to the Anniston Star, which reviewed statewide arrest data. "It's unclear whether any of the children were actually charged with the crime," the paper reported, "or whether police knew they were underage at the time of the arrest."

Not charging juveniles for selling sex, whether on their own or under force or coercion, is certainly a positive step. But the legislation contains a lot of language that suggests, arrest or no arrest, these young people aren't simply being seen as victims. For instance: "Once the sexually exploited child is adjudicated, the juvenile court shall retain jurisdiction over the sexually exploited child and may enforce prior orders requiring payment of court-ordered monies."

Beyond that, the "Safe Harbor Act" is packed with worrying components unrelated to minors, in addition to the mugshot ban. Most alarmingly, it allows adults arrested for prostitution to be held for up to 72 hours so law-enforcement can screen them for mental-health issues, financial status, living arrangements, and who knows what else, before deciding whether to bring charges or send them to a pre-trial diversion program. Here's the relevant passage:

For the safety and well-being of a person arrested for the crime of prostitution under Division 2, Article 3, Chapter 12, Title 13A, Code of Alabama 1975, he or she may be held in custody for up to 72 hours. The person shall be brought before a court of competent jurisdiction as soon as possible within a 48-hour period to conduct an inquiry into the person's access to resources, such as, but not limited to, health care, shelter, mental health counseling, or financial aid. The court may issue an order to assist the person in obtaining the services and resources needed pursuant to the court's inquiry.

In addition, all prostitution cases must now be heard in district, rather than muncipal, courts.

The new law also requires any "business engaging in an escort business of companionship" to register with the Alabama secretary of state's office, and sets a criminal penalty for failing to do so. The office is urging people to report any unregistered escort-services they know of to the the Alabama Law Enforcement Agency. What's dangerous here is it may relieve police of the need to prove prostitution of individuals advertising as "escorts" before making an arrest.

Rep. Williams has described the bill his efforts as a first step toward "plant[ing] a flag that says you are not going to rape a child in Alabama." The measure passed both the Alabama House and Senate unanimously.

The last major sections of Williams' bill focus on prostitution clients, and civil asset forfeiture. It stipulates that anyone found guilty of soliciting prostitution or promoting it, among a few related offenses, must be tried in district rather than municipal court and assessed a mandatory fine of $500, "notwithstanding any other fines, restitution, court costs, or docket fees," with the fine rising 50 percent for second through fourth convictions. The money will go to a "court-certified therapeutic counseling entity that provides education, treatment, and prevention counseling to adult persons convicted of prostitution offenses." And courts may order those convicted of solicitation to "attend counseling or an educational training program designed to reduce recidivism rates."

Alabama cops were also granted more to seize the assets of anyone suspected of soliciting prostitution. "We've added wording so it's plain that if a john pulls up to a car, solicits a female, puts her in that car and drives off—that car can be forfeited, just like a drug dealer's," said state prosecutor Barry Matson, deputy director of the Alabama District Attorneys Association, at an Alabama Human Trafficking Task Force meeting in February. He illustrated this detail by noting that, "Right now in Alabama if I pull up on the road and shoot a deer… I'm going to lose my car and my gun. So I think if we can protect deer in that way we darn sure can protect people."

The forfeiture expansion goes beyond cars and "johns," however. Under the Safe Harbor Act, "any property, proceeds, or instrumentality of every kind, used or intended for use in the course of, derived from, or realized through the commission" of any misdemeanor or felony prostitution offense, or "attempt or conspiracy to commit such offenses," is subject to civil forfeiture. This makes prostitution offenses the only misdemeanor crimes subject to this sort of broad forfeiture potential in Alabama.