Legalizing Prostitution: From Illicit Vice to Lawful Business (12 page)

Two states in the contemporary United States have implemented the two-track policy. Since 1971, Nevada has allowed rural counties the option of licensing and regulating brothels, while it retains the ban on escort and street prostitution. The brothels are discussed further in
chapter 4
. Rhode Island is the other U.S. example. Until 2009, Rhode Island took a dual approach that was broader than Nevada’s, since it applied to all indoor prostitution, not just brothels in rural areas. A 1980 state law effectively allowed indoor prostitution by prohibiting only loitering for the purpose of soliciting sex. Loitering occurs outdoors. Solicitation that takes place indoors or on the Internet was not prohibited. Police sometimes busted massage parlors for employing workers lacking a massage license, but not for prostitution.
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Rhode Island thus stood out for its formal (if unintentional) adoption of the two-track policy.

This situation changed in 2009, after an incident in the city of Warwick and a related one in Boston in which one escort was killed and another robbed, apparently by the same man. Heavy media coverage of these cases drew attention to the state’s laissez-faire approach to indoor prostitution and led to a heated public debate and hearings in the state legislature. Among those who argued that criminalization was the wrong approach, 50 academics signed a letter opposing the bill—a letter that received considerable media coverage and was discussed in the legislature.
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Not surprisingly, prohibitionists mounted a massive effort to convince legislators to criminalize prostitution. An op-ed article by well-known Rhode Island activist Donna Hughes attempted to alarm the public and shame politicians who were slow to accept the need for criminalization. Hughes declared that if the law remained unchanged,

Rhode Island is headed for a human rights disaster and nationwide political embarrassment. … Rhode Island will continue to have an expanding number of spa-brothels, prostitution of minors in clubs, and no law that will enable the police to stop it. The hearing [on the criminalization bill] was a sordid circus, with pimps and prostitutes coming forward to oppose the legislation. … Senator Levesque seemed pleased and entertained by the cadre from the sex industry. … Never have I witnessed such a carnival. … I believe the Senate is going to let another year go by without a prostitution law. This will be a tragedy for victims caught in the sex industry, a black eye for Rhode Island’s reputation, and a victory for the pimps.
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Other observers stated that there were no pimps at the hearing, but some massage-parlor workers did testify against the bill. It is ironic that Hughes warns of a “human rights disaster” if the legislature failed to criminalize indoor prostitution, given that the two-track policy had been in effect for 30 years without causing problems, let alone disastrous results.

Nevertheless, the legislature passed the bill in October 2009—thus putting an end to the state’s two-track policy. In signing the legislation, Governor Donald Carcieri declared that prostitution “erodes the moral fiber of our state” and added, “For almost 30 years, Rhode Island has had the terrible distinction of being the only state outside certain counties in Nevada where indoor prostitution is not considered a crime.” The symbolic dimension of the new law was echoed by Attorney General Patrick Lynch when he proclaimed that it will “end a blemish” on the state.
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The new law provides jail time (up to six months) or a fine (up to $1,000) for both prostitutes and their customers and permits judges to expunge the charges after one year for a convicted prostitute but not for the customer.
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Landlords who allow prostitution on their premises face a mandatory minimum sentence of one year in prison (and a maximum five years) and a mandatory $2,000 fine (maximum $5,000) for their first offense, increasing for a subsequent offense. A few days after the law passed, massage parlors began to close. Michael Kiselica, a lawyer who represents parlor owners and their landlords, stated that his clients may sue the state because of the adverse economic effects of the new law. Kiselica asked, “What happens when you suddenly create a large number of unemployed people who the day before were gainfully and lawfully employed? What consideration did the state give to those people?”
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The Rhode Island and Nevada cases show that versions of the two-track policy
have been in effect
in contemporary America—for 30 years in Rhode Island and 40 years in Nevada. Thus, the policy cannot be dismissed as a utopian idea. Over the past decade, several criminalization bills had been considered but failed to pass the Rhode Island legislature (until 2009) because legislators were not convinced that the two-track approach should be abandoned. At the same time, the Rhode Island case also shows that established prostitution policy can change rather quickly, especially if activists dramatize the issue in the media and succeed in alarming the public and embarrassing policymakers. Some well-publicized violent attacks concentrated public attention on the “loophole” in the state’s prostitution law, and activists capitalized on this in demanding an end to this “blemish” on Rhode Island’s image.

As mentioned earlier, it is rare in the United States for a state legislature even to consider decriminalization. But Hawaii did so in 2007. The bill would have decriminalized the indoor track and zoned street prostitution:

A person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person for a fee in a public place that is likely to be observed by others who would be affronted or alarmed. … The legislature and counties shall designate areas within their jurisdiction as exempt from the penalty provisions. … Designated areas shall include portions of geographic areas that have a history of this offense. The designated areas may be described both by geographic boundaries and by time of day limitations.
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The first part of the bill essentially decriminalizes indoor prostitution, and the second part restricts street prostitution to certain areas. The latter therefore departs from the two-track policy because it allows street prostitution and does not provide resources to help workers get off the streets. The bill was supported by the ACLU, but it failed to pass in the legislature. One of the bill’s sponsors, Rep. Bob Herkes, saw the bill as a strategic stepping stone: “It’s one of those bills you do it for public dialogue instead of trying to get it passed,” and the bill’s advocates stated that they hoped to gain support for a similar bill in the future.
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The preceding discussion shows that, while blanket criminalization is the reigning approach in the United States, alternatives occasionally make it onto the public agenda. In other words, decriminalization and legalization are not totally foreign ideas in contemporary America. Decriminalization has recently been on the ballot in two cities (Berkeley and San Francisco), was considered by at least one state legislature (Hawaii), and was the key recommendation of a blue-ribbon commission (in San Francisco in 1996). Moreover, the two-track policy has been implemented in two states (Rhode Island and Nevada) and proposed by at least one official commission (in San Francisco in 1971). As we will see in later chapters, several other nations embrace some version of the two-track approach—decriminalizing brothels, escort agencies, or other indoor enterprises while continuing to ban street prostitution.

Having described the different policy options as well as some recent changes in the United States, it is now time to expand the discussion by examining the most important macrolevel trend in the country over the past decade: a steadily expanding punitive approach to the sex industry. As I show in this section,
all
sectors of the sex industry, not just prostitution, have been targeted by prohibitionist forces and by the government during the past decade. Trends in the United States, therefore, contrast with those in some other countries discussed later in the book. The punitive trend may be viewed as part of a backlash to the increasing availability and mass marketing of sexual services and to what opponents inside and outside government regard as an alarming normalization of sexual commerce. The window of opportunity for moral reform opened wide during the Bush administration (2001–2008)—a regime whose interests converged almost seamlessly with the demands of prohibitionist social forces and resulted in legislation designed to curb commercial sex work.
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No discussion of the trend toward amplified criminalization would be complete without examining the role of sex trafficking as a policy driver. A newly discovered social problem, the term
human trafficking
was not in vogue as recently as two decades ago. In U.S. law,
trafficking
is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion,” a definition that applies to work in agricultural, industrial, or commercial sex sectors.
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Most commentators, activists, and government officials have focused exclusively on one area—sex trafficking.

Some analysts have published excellent critical evaluations of domestic and international trafficking policies, questioning many of the popular claims about trafficking (including the magnitude of the problem) and identifying serious flaws in the data used to support those claims.
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But scholars have been less cognizant of the increasing conflation of trafficking with commercial sex, a theme explored here.
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Over the past decade, the trafficking issue has driven policy debates and enforcement practices regarding the entire sex industry in the United States and in some other nations. What began in the mid-1990s as a campaign against trafficking has steadily expanded over time. Prohibitionists now associate sex trafficking with
all
sexual commerce—prostitution, pornography, and commercial stripping. Such “domain expansion” is common in social movements: once they achieve their original goals, many movements turn to other issues.

Organizations that seek to combat sex trafficking differ in their ultimate goal. One wing is committed to identifying and assisting victims (i.e., individuals who have been transported into the sex trade by force or deception) as well as the larger goal of disrupting sex-trafficking networks. Another wing has a much broader agenda. They seek to criminalize not just coercive sex trafficking but all migration into sex work. These latter organizations have increasingly monopolized the trafficking debate in the United States and other nations and have steadily expanded their compass to the entire sex industry. Here, I restrict my discussion to these dominant forces (which I call
prohibitionist
because they seek to outlaw all commercial sex). I show how, after winning victory after victory in shaping trafficking policy during the Bush administration, this movement broadened its mission to include other types of sex work.

Prohibitionists first succeeded in linking sex trafficking to prostitution.
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To fight trafficking, they asserted, prostitution must be targeted in its own
right, by increasing the penalties for participants or by criminalizing prostitution where it is currently legal. Activist Donna Hughes, for example, calls for “re-linking trafficking and prostitution, and combating the commercial sex trade as a whole.”
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Hughes claims that “most ‘sex workers’ are—or originally started out as—trafficked women and girls.”
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This claim is fictional: studies have not demonstrated that “most” prostitutes have been trafficked. Moreover, prostitution and trafficking differ substantively: prostitution is a type of labor, whereas migration and trafficking involve the process of recruitment and relocation to access a market. Both empirically and conceptually, it is inappropriate to fuse the two.

The U.S. government has fully adopted the conflation framework. The State Department’s 2004 publication “The Link between Prostitution and Sex Trafficking” draws this “link” boldly, equating trafficking and prostitution. It also declares that prostitution “is inherently harmful”; that it “leaves women and children physically, mentally, emotionally, and spiritually devastated”; and that legal prostitution “creates a safe haven for criminals who traffic people into prostitution.”
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Officials in the Justice Department privately questioned this sweeping depiction of prostitution,
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but this had no effect on the official position of the Bush administration.

The focus on prostitution has shaped not just official discourse but also legislation and enforcement. First, most of the enforcement efforts against human trafficking in the United States have centered on prostitution cases, with much less attention to labor trafficking.
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And sex trafficking and prostitution have been fused: a recent investigation discovered that some multiagency law enforcement units “have focused exclusively on prostitution, making no distinction between prostitution and sex trafficking.”
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Second, the initial focus on traffickers has steadily expanded to include customers, who are seen as the root cause of trafficking—discussed later in this chapter. Third, government funding has been skewed. Activists successfully pressed for a policy that denies funding to organizations that are not sufficiently committed to eradicating prostitution. Since 2003, to be eligible for U.S. funding, any foreign nongovernmental organization working on the trafficking front must declare its opposition to prostitution.
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The ban was also applied to researchers. In 2007, the Justice Department required those who apply for funding to conduct research on trafficking to certify that they do “not promote, support, or advocate the legalization or practice of prostitution.”
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Failure to do so would result in summary rejection. Similarly, the 2003 Global AIDS Act requires that any international organization working to curb AIDS must “have a policy explicitly opposing prostitution and sex trafficking” if it
wishes to receive U.S. funding. This applies to American groups insofar as they work with or subcontract work to international organizations. Organizations that take no position on prostitution are thus ineligible for government funding.
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These funding restrictions skew research and intervention in one direction, eliminating competing points of view and further privileging and institutionalizing the oppression paradigm. Because of the restriction, several nongovernmental organizations have declined to apply for government funding.
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