Legalizing Prostitution: From Illicit Vice to Lawful Business (13 page)

Legal prostitution systems are a prime target. According to both prohibitionist activists and the U.S. government, legalization allegedly increases trafficking by removing the constraints on a formerly illegal and circumscribed enterprise.
⁸⁴
One target is Nevada’s legal brothel system. Prohibitionist activist Melissa Farley received State Department funding to investigate Nevada’s brothels, resulting in a highly critical report. Remarkably, Farley provides no evidence of trafficking into the brothels and relies instead on a few individuals’ opinions to make this connection:

Women are trafficked from other countries into Nevada’s legal brothels. … In Nevada, 27 percent of our 45 interviewees in the Nevada legal brothels
believed
that there were
undocumented immigrants
in the legal brothels. Another 11 percent said they were uncertain, thus as many as 38 percent of the women we interviewed
may have known
of internationally trafficked women in Nevada legal brothel prostitution.
⁸⁵

Another way of reporting this “finding” is that as many as 62 percent did
not
believe that women were trafficked into the brothels, while the remainder either did not have an opinion or believed that there were some undocumented immigrants, who are not necessarily “trafficked.” Farley converts the
beliefs
of a
minority
with regard to immigrants into
evidence
of trafficking, and this minority consists of just twelve interviewees. Elsewhere, Farley writes that a few women in one brothel told her that women in another brothel had been trafficked from China. Farley presents this hearsay as factual and calls the women who told her this story “witnesses,” lending their statements an aura of credibility.
⁸⁶

The report also discounts evidence contradicting Farley’s conclusions. Workers who did not have a problem working in a brothel were simply dismissed as living a lie.
⁸⁷
Similarly, a study that concluded that Nevada’s legal brothels “offer the safest environment available for women to sell consensual sex acts for money”
⁸⁸
was rejected by Farley because, she says, “safety
is relative, given that all prostitution is associated with a high likelihood of violence.”
⁸⁹
Farley’s methods and conclusions have been severely criticized by scholars who have studied Nevada’s brothels for over a decade,
⁹⁰
yet her report was given a stamp of authority when published as an official State Department report.

The State Department’s own assessments appear to undercut the notion that legal prostitution systems are a magnet for sex trafficking. In its annual
Trafficking in Persons Report
, several nations where prostitution is legal (Australia, Germany, the Netherlands, New Zealand, etc.) have consistently been found to “fully comply with minimum standards for the elimination of trafficking.”
⁹¹
In fact, legal prostitution
may
help
decrease
trafficking due to increased oversight. Criminalization, by contrast, appears to encourage trafficking: “It is the prohibition of prostitution and restrictions on travel,” argues Alison Murray, “which attract organized crime and create the possibilities for large profits, as well as creating the prostitutes’ need for protection and assistance.”
⁹²
And Kamala Kempadoo notes, “Traffickers take advantage of the illegality of commercial sex work and migration, and are able to exert an undue amount of power and control over [migrants]. … In such cases, it is the laws that prevent legal commercial sex work and immigration that form the major obstacles.”
⁹³
There is overwhelming evidence that organized crime thrives under conditions in which a particular vice is criminalized—amply demonstrated by drug and alcohol prohibition—and declines when it is legalized. Yet the Bush administration continued to assert that legal prostitution has the opposite effect, amplifying criminal activity, despite the lack of evidence to support this claim.

In the United States, prostitutes have always been arrested in much greater numbers than their customers have, despite the fact that customers greatly outnumber prostitutes. National data are lacking on the exact numbers of prostitutes and customers arrested (the figures report total arrests for “prostitution and commercialized vice,” not broken down by suboffense and not including customers at all), but all indications are that the disparity remains wide today. Some cities, however, have vigorously pursued customers over the past decade and are part of a larger national trend toward greater enforcement against prostitutes’ clients.

Customers have been targeted in different ways. Police decoys, who appear to be prostitutes, make arrests when they are solicited. Some residents
have banded together to harass prostitutes and clients by following and videotaping them or by engaging in vigilante actions such as attacking cars. Public humiliation is another common approach, including “naming and shaming” alleged clients in local newspapers, on cable television, or on a police website listing the names, addresses, and pictures of men arrested for attempting to solicit a prostitute.
⁹⁴
In New Haven, Connecticut, posters naming a “John of the Week” were stapled to trees in one prostitution stroll, and Miami has used freeway billboards to shame convicted clients.
⁹⁵
Americans are evenly divided on these practices, with half of the public endorsing the idea of publicizing the names and photos of convicted clients.
⁹⁶
In 2008, at least 280 American cities were shaming customers in some way.
⁹⁷

A second tactic is a novel form of rehabilitation: the “john school” for arrested customers. San Francisco launched its First Offenders Prostitution Program in 1995, and between 1995 and early 2008, more than 5,700 men had attended the program.
⁹⁸
The program is a joint effort by the police, the prosecutor’s office, the public health department, community leaders, and former prostitutes. The men avoid an arrest record and court appearance by paying a $500–$1,000 fine, attending the school, and not recidivating for one year after the arrest. As of 2008, john schools had been launched in 40 cities in the United States (as well as in Canada and Britain), all of which are modeled on San Francisco’s program.
⁹⁹
Every aspect of the program is designed to shame, educate, and deter the men from future contact with prostitutes. The audience hears former prostitutes describe their traumatic experiences, views a graphic slide show on sexually transmitted diseases, and is lectured by community residents about the ways that street prostitution destroys their neighborhoods. During my observations at the San Francisco school in 1998, the men were repeatedly asked how they would feel if their mothers, wives, or daughters became prostitutes and why they were “using” and “violating” prostitutes.

The paradigm shift toward clients is evident at the national and state levels as well, especially in the antitrafficking laws that contain special provisions targeting “the demand.” For years, prohibitionists have been pressing for vigorous enforcement against customers.
¹⁰⁰
Illinois has been in the vanguard of this trend with some unique interventions. In 2009, Illinois activists launched an End Demand Campaign to “advocate for the creation of resources and tools for law enforcement to hold perpetrators accountable, deter further exploitation, and increase options for prostituted and trafficked women and girls.”
¹⁰¹
The campaign has roots in earlier efforts, including activists’ successful lobbying of the state legislature to pass the Predator
Accountability Act in 2006, which allows prostitutes to seek civil damages against individuals and businesses that can be linked to their involvement in sex work. Clients and pimps can be sued if they “abuse” or “cause bodily harm” to a prostitute, but the most radical feature of the new law is the liability it imposes on businesses. A business is punishable if it “recruits, profits from, or maintains the victim in the sex trade,” irrespective of whether the so-called victim was coerced. Strip clubs, massage parlors, and escort agencies that knowingly publish ads intended to recruit individuals into prostitution are the targets of this law.
¹⁰²
The assets of such businesses make them lucrative targets for plaintiffs seeking financial settlements for damages. In October 2009, the Illinois attorney general and Cook Country sheriff filed a lawsuit against Craigslist for publishing advertisements for “erotic services” on its website. The lawsuit was dismissed by the court, but Craigslist agreed to increase the cost of such ads and to contribute the proceeds to charity. After other states began suing Craigslist, the company decided to close its erotic-services section in September 2010.

The growing targeting of customers in the United States is part of a larger, international trend. This approach is exemplified by Sweden, where a 1999 law punishes clients but not prostitutes on the grounds that men are the perpetrators and women are victims who should be rescued rather than prosecuted.
¹⁰³
The new law was the result of heavy lobbying by actors inside and outside government who fully embraced the oppression paradigm. In fact, in the debate leading up to the new law, the notion that “prostitution was a degradation of women, a form of violence against women, was the most powerful argument” and totally eclipsed alternative views.
¹⁰⁴

Since 1999, some other nations have adopted the Swedish approach. In 2006, Finland passed a law outlawing the buying of sex from a trafficked woman, and in 2009, Norway and Iceland enacted legislation quite similar to Sweden’s. In the same year, England and Wales passed a bill criminalizing those who buy sex from workers who are coerced into prostitution by a third party, irrespective of whether clients are aware of third-party involvement. In each case, advocates of the measures drew inspiration from the Swedish system, and in some cases Swedish and other foreign antiprostitution activists personally lobbied local politicians to pass the bills. The popularity of the Swedish approach is such that it frequently takes center stage whenever prostitution policy is on the political agenda today. It should be noted, however, that not all antiprostitution activists favor the Swedish approach: many continue to press for the criminalization and punishment of all parties involved in sex for sale, not just the clients.

Domain expansion is broader than prostitution. The key U.S. legislation on sex trafficking defines “commercial sexual activities” broadly, as “any sex act on account of which anything of value is given to, or received by, any person.”
¹⁰⁵
One purpose of the 2005 End Demand for Sex Trafficking bill was to “combat commercial sexual activities” in general because, according to the bill, “commercial sexual activities have a devastating impact on society. The sex trade has a dehumanizing effect on all involved.” Part of the End Demand bill ended up in the 2005 Trafficking Victims Protection Reauthorization Act (TVPRA), which contains a section that repeatedly refers to the need to investigate and combat “trafficking in persons and demand for commercial sex acts in the United States”
¹⁰⁶
—effectively blurring the line between trafficking and commercial sex. For those who “purchase commercial sex acts,” the TVPRA authorized $25 million per year for increased prosecution and programs (e.g., john schools).
¹⁰⁷

Prohibitionists have sought to link trafficking to strip clubs. Australian activist Sheila Jeffreys claims that “trafficking in women by organized crime groups has become a common form of supply of dancers. All over Europe and North America women and girls are brought to the clubs by deception, by force, or, initially, by consent.”
¹⁰⁸
No evidence is offered to support this sweeping charge. Donna Hughes’s report on trafficking (funded by the U.S. State Department) claims that “the introduction of lap dancing has almost eliminated the distinction between dancing and prostitution” and that women are trafficked to perform at strip clubs (Hughes found only six cases of this in the United States during 1998–2005).
¹⁰⁹
Hughes maintains that strip clubs are “attractive to some criminals because they assume that since stripping is legal they will be less likely to be caught trafficking women into these markets.”
¹¹⁰
Other prohibitionists have made similar claims, which may lead to increased police investigations of strip clubs in the future.
¹¹¹

Pornography is also under new scrutiny in the United States. Most of the groups involved in the antiprostitution movement are equally alarmed by pornography, which they have begun to associate with trafficking. In an article entitled “Pornography as Trafficking,” Catharine MacKinnon equates the distribution of pornography with the trafficking of persons depicted in pornography, but MacKinnon goes further when she writes that “the pornography industry, in production, creates demand for prostitution, hence for trafficking, because it is itself a form of prostitution and trafficking.”
¹¹²
Other activists argue, in less opaque terms, that there is a simple connection between trafficking and porn—that is, the two are inextricable.

A letter to President Bush, signed by over 50 leaders in the antiporn movement, urged him to crack down on this vice. Alarmed at the “explosive increase” in the availability of pornography, the signatories also claimed that “trafficking in women and children” is “linked to the spread of obscenity” and that pornography “corrupts children, ruins marriages, contributes to sex crimes against children and adults, and undermines the right of Americans to live in a decent society.” The letter asked Bush to make fighting obscenity one of his “top priorities.”
¹¹³
One of the signatories, Patrick Trueman, testified before Congress that “pornography is closely linked to an increase in prostitution, child prostitution, and human trafficking. … Pornography is a powerful factor in creating the demand for illicit sex.”
¹¹⁴
(Trueman is the former chief of the Justice Department’s obscenity branch and now legal counsel for the right-wing Family Research Council.) Donna Hughes’s report for the State Department echoes this view, alleging that the producers of pornography “often rely on trafficked victims.”
¹¹⁵
Once again, supporting evidence is lacking. The connection is simply an
assertion
by activists who seek to ban pornography.