States Try to Reform Prostitution Laws—for Better and Worse
New bills in six states showcase some right and wrong ways to help sex workers, from full decriminalization to ramping up penalties for prostitution customers.
State lawmakers in at least six states have recently introduced bills related to sex work. Some of these measures would decriminalize prostitution, while others would stipulate stronger criminal penalties for prostitution.
States considering the former have the right idea. Decriminalizing prostitution has been linked to an array of positive outcomes, from lower rates of sexual violence and sexually transmitted infections overall to less violence against sex workers. It means fewer law enforcement resources wasted on policing consensual activity between adults, freeing up time and money for stopping and solving serious crimes. It's supported by organizations including Amnesty International, Human Rights Watch, the American Civil Liberties Union, the Global Alliance Against Traffic in Women, and the World Health Organization. It's also in line with what sex workers around the world say they need.
Lawmakers in Hawaii, New York, and Vermont have recently introduced measures that would decriminalize prostitution for both sex workers and their customers. And a group of Rhode Island lawmakers are pushing measures to protect sex workers and prostitution customers who report crimes.
Meanwhile, lawmakers in Massachusetts and Tennessee have introduced legislation that would provide some protections for sex workers while simultaneously strengthening or leaving alone laws related to people who pay for sex.
Here's a brief overview of the prostitution measures percolating in these states.
In Hawaii, Senate Bill 1204 would decriminalize prostitution between consenting adults. The bill, introduced by state Sen. Carol Fukunaga (D–Manoa), would repeal a section of Hawaii law criminalizing prostitution (which is defined as engaging, agreeing to engage, or offering to engage in "sexual conduct with another person in return for a fee or anything of value") and a section criminalizing "commercial sexual exploitation," which is defined as providing, agreeing to provide, or offering to provide "a fee or anything of value to another to engage in sexual conduct."
It would also repeal laws that criminalize "promoting prostitution," "loitering for the purpose of engaging in or advancing prostitution," "promoting travel for prostitution," "street prostitution," and soliciting prostitution near schools or parks.
Sex trafficking—that is, "compelling or inducing a person by force, threat, fraud, or intimidation to engage in prostitution," profiting from such conduct, or advancing or profiting from the prostitution of a minor—would still remain a Class A felony.
Senate Bill 1204 would also increase civil remedies available to victims of sex trafficking.
Another measure introduced by Fukunaga (Senate Concurrent Resolution 99) would establish a working group to "study the effects of New Zealand's model of decriminalizing prostitution on sex workers, their clients, and the broader community; consider the potential impacts of decriminalizing prostitution in Hawaii," and "make recommendations for amending Hawaii laws to decriminalize prostitution, including any necessary changes to health and safety regulations, criminal penalties, and labor laws."
In New York, state Sen. Julia Salazar (D–Brooklyn) recently introduced the Stop Violence in the Sex Trades Act (SVSTA, a.k.a. S4396), a prostitution decriminalization bill that has attracted eight co-sponsors so far. The bill would repeal all parts of state penal law "that make sex work between consenting adults illegal," per a Senate summary. The bill would also repeal other statutes related to consensual adult prostitution.
"Presently, New York state law has more than two dozen anti-prostitution penal codes," notes the nonprofit advocacy group Decriminalize Sex Work. "About half of these codes target sex work between consenting adults, and the other half focus on trafficking, the exploitation of minors, and coercion into commercial sex. SVSTA upholds all felony anti-trafficking statutes that are designed to hold traffickers accountable."
"Trying to stop sex work between consenting adults should not be the business of our criminal justice system," states the justification section of SVSTA. "Criminalization drives sex work into the shadows in an underground illegal environment where sex workers face increased violence, abuse, and exploitation, and are more vulnerable to trafficking. Though anti-sex work laws may have originally been conceived as a protection of society's morals and perhaps even women, these laws now criminalize women and LGBTQ people for acts of survival and resistance to the force of economic insecurity. Decriminalizing sex work upholds the rights of those who trade sex, reduces violence and trafficking, and increases labor protections."
Rhode Island House Bill 6064 was introduced on March 3 and referred to the House Committee on the Judiciary. In Rhode Island, it's already an affirmative defense to prostitution charges "if the accused was forced to commit a commercial sexual activity" because of physical violence or restraint, threats, or coercion. This bill—from Democratic state Reps. Enrique Sanchez (Providence), Brianna Henries (East Providence), and Jennifer Stewart (Pawtucket)—would further stipulate that "a person shall not be cited, arrested, or prosecuted [for prostitution] if the person witnessed or was a victim of, and reported to law enforcement in good faith and in a timely manner" offenses including assault, sexual assault, homicide, kidnapping, fraud, robbery, theft, embezzlement, extortion, stalking, child pornography, or human trafficking.
In effect, it would allow sex workers to come forward about crimes they witnessed or were victimized by without worrying that police would then arrest them for prostitution.
Likewise, the bill would prohibit prosecuting someone reporting one of these crimes for "procuring or attempting to procure sexual conduct for the payment of a fee," loitering for prostitution, "soliciting from motor vehicles for indecent purposes," or practicing massage without a license.
"Currently, many sex workers and sex trafficking survivors are more afraid of police than they are of violent perpetrators," says the sex worker–led group Call Off Your Old Tired Ethics Rhode Island (COYOTE RI), which worked with lawmakers to draft the bill. "A misdemeanor prostitution charge can mean losing housing, custody of children, and employment opportunities. Clients of sex workers are the people most likely to encounter a sex trafficking survivor, but reporting to police can mean criminal charges – in some states felonies – that can affect their employment and family." H.B. 6064 would mean "that sex workers, sex trafficking survivors, and their clients" could "report crimes like sex trafficking to police without being arrested," the group says.
In the Vermont General Assembly, H.372—"an act relating to voluntary engagement in sex work"—has attracted 14 sponsors. A preamble to the bill notes that Vermont law defines prostitution as not only "the offering or receiving of the body for sexual intercourse for hire" but also "the offering or receiving of the body for indiscriminate sexual intercourse without hire." Passed in the early 1900s, this law criminalizes "not only voluntary sex work but sexual activity outside marriage, and no longer reflect Vermont's commitment to personal and bodily autonomy," it states.
The bill—which is currently with the Assembly's Committee on the Judiciary—would repeal the part of Vermont's criminal code that outlaws engaging in prostitution, soliciting someone for prostitution, aiding and abetting prostitution, and related activities (such as permitting a place to be used for lewdness or prostitution and transporting someone to a place where they will engage in prostitution).
Lawmakers note that it is their intent "to repeal the laws prohibiting 'indiscriminate' sex and voluntary sex work between consenting adults while retaining strict prohibitions and criminal penalties for human trafficking of persons for sex work."
The bill would have no effect on Vermont's human trafficking law, which prohibits recruiting, enticing, harboring, transporting, providing, or obtaining any person for prostitution if they are under age 18 or will be compelled through force, fraud, or coercion to engage in commercial sex, along with patronizing anyone who would be defined as a trafficking victim under this statute.
Massachusetts House Bill 1603—introduced in February by state Rep. Kay Khan (D–Newton)—would strike a section of the state's criminal code related to "night walkers" and "street walkers."
As it stands, the code says that "common night walkers, common street walkers, both male and female, persons who with offensive and disorderly acts or language accost or annoy another person, lewd, wanton and lascivious persons in speech or behavior, keepers of noisy and disorderly houses, and persons guilty of indecent exposure shall be punished by imprisonment in a jail or house of correction for not more than 6 months, or by a fine of not more than $200, or by both such fine and imprisonment." Khan's bill would remove "common night walkers" and "common street walkers" from this section.
H.B. 1603 would also remove a portion of the code criminalizing anyone who " engages, agrees to engage or offers to engage in sexual conduct with another person in return for a fee."
But it would leave in place the part of the law that criminalizes paying or offering to pay someone for sexual conduct. Essentially, the bill would implement what's known as the Nordic model of sex work laws, in which paying for sex is illegal but selling sex (at least under some circumstances) is not.
The Nordic model has been gaining proponents in the U.S., but it's not recommended by human rights, health, or sex worker advocacy groups, since continuing to criminalize prostitution clients keeps the industry underground and leaves in place most of the harms presented by full criminalization. A recent study of sex work law changes in Europe found that moves to fully criminalize or implement the Nordic model were associated with higher rape rates, with "the Nordic model ha[ving] a stronger effect on increasing rape than criminalization does."
In Tennessee, two Republican lawmakers—state Sen. Page Walley (Savannah) and state Rep. John Ragan (Oak Ridge)—have introduced measures (H.B. 1383 and S.B. 0182), offered in part to discourage the arrest of sex trafficking victims on prostitution charges. "This bill prohibits a person who in good faith reports a criminal act, committed against the person or another, from being arrested, charged, or prosecuted for prostitution if the evidence for the arrest, charge, or prosecution for the offense of prostitution resulted solely from the person's report of the criminal act," a summary of the bills states.
So far, so good. But the bills—which are being called the Tennessee Safe Crime Reporting Law—would also institute heftier penalties for people paying or attempting to pay for sex.
Right now, the crime of "patronizing prostitution" in Tennessee is already a Class A misdemeanor, punishable by up to 11 months and 29 days in prison and/or a $2,500 fine.
The "Safe Crime Reporting Law" would make patronizing prostitution a Class E felony, punishable by one to six years in prison and up to $3,000 in fines.
Increasing the criminal penalties for prostitution customers doesn't stop prostitution. But it may make customers more reluctant to engage in screening measures of the sort that make sex workers safer and less likely to accept other conditions that could increase sex worker safety, out of fear that doing so will leave a paper trail or otherwise make them more vulnerable to arrest. It could also change the makeup of prostitution customers, weeding out the more risk-averse or those with more to lose from being caught—which could leave sex workers with a less wealthy, respectful, or otherwise desirable class of customers and shrink the overall customer base.
While whittling down the number of people willing to pay for sex may be the goal of laws like these, it doesn't actually benefit sex workers, who may be forced to work more hours, engage in acts they aren't comfortable with, and engage in riskier activities to make ends meet. Sex workers strapped for customers and cash also become more vulnerable to homelessness, sexual violence, and needing to rely on violent or exploitative third parties to get by.