Why this bill won’t stop trafficking

May 10, 2018

Sylvia Johnson and Camille White-Avian explain why recently enacted FOSTA-SESTA sex trafficking legislation puts sex workers in greater danger.

DONALD TRUMP signed legislation in April claiming to protect sex-trafficking victims, but it will do the opposite by further criminalizing sex workers and making their work more dangerous by shutting down access to online platforms where they can more safely vet clients.

The bill combines the Fight Online Sex Trafficking Act (FOSTA), amending Section 230 of the Communications Decency Act, which prevents online intermediaries from being held liable for users' actions, and the Stop Enabling Sex Traffickers Act (SESTA), passed by Congress in March.

FOSTA-SESTA expands existing federal criminal sex trafficking laws to target online platforms where sex trafficking content appears.

Both pieces of legislation were written with the stated aim of stopping sex trafficking in the U.S., particularly child sex trafficking. However, sex workers warned that these bills would do far more harm than good to the consensual sex work community, which stands to lose pay, safety and basic protections by being forced back onto the streets.

Sex workers and solidarity activists march for equal rights
Sex workers and solidarity activists march for equal rights (Sally T. Buck | flickr)

In the weeks after Trump signed the bill, it's clear that they were right.

On April 6, the Justice Department seized control and shuttered Backpage, a popular advertising website which many sex workers relied on to find and screen clients.

A few weeks before, Craigslist did away with personal ads, Reddit changed its content policy to forbid communication regarding "physical sexual contact" for pay, and the founder of SeekingArrangement, a popular relationship networking site, has restated that the domain is strictly a dating/lifestyle apparatus, regardless of its popularity as a source for sex workers to screen clients.

Several companies have announced that they will be screening all user content for "offensive language."

Online advertising platforms, which have been essential to sex worker survival, can now label any content regarded "sex trafficking" as criminal, which means all forms of sex work are now liable for criminal prosecution.

Even though FOSTA-SESTA encompasses only crimes related to prostitution, it sets a precedent for the government to require platforms to police any and all content users post online. This draconian legislation makes no distinction between sex trafficking and consensual sex work.

Denying a vehicle for sex workers to vet and screen their clients means workers are being forced underground and back on to the street where their lives are in greater danger. Removing choice and autonomy from sex workers on their preferred platforms isn't going to help trafficking victims--it will increase the possibility for abuse and violence.

CONTRARY TO its purported aims, FOSTA-SESTA isn't about sex trafficking; it's about restriction, censorship and surveillance over marginalized people who voluntarily choose sex work or have no other choice.

If sex workers are forced offline and onto the streets, it also puts them at the mercy of law enforcement. Sex workers face regular harassment from the police, including using condoms as evidence to advance prostitution charges or raping them in exchange for letting them go without an arrest.

This is especially true for transgender women. "Walking while trans"--when police profile transgender women (especially Black trans women) as prostitutes soliciting--is as pervasive as "walking while Black."

When sex workers are forced into the streets, they are more vulnerable to predators--police and sex traffickers alike. As one sex worker and community organizer said told journalist Carrie Weisman:

Advertising online is a method of harm reduction. If sex workers can access affordable and reliable methods of advertising and screening clients, they are better able to work indoors and in conditions where they feel safer. Sharing client experiences and information is a method of harm reduction. Being able to communicate online about surviving violence and seeking resources is a method of harm reduction.

Since FOSTA-SESTA was signed into law, sex workers have reported that pimps are contacting and threatening their former workers because they know the new legislation will affect their ability to find clients.

An unknown number of workers (at least five and upwards of 30) are reported missing, murdered or never checked in with their "safe call" (a friend, usually another worker, that is called to confirm safety after meeting with a client).

One worker reported being raped at gunpoint during an appointment, and at least one person has completed suicide, with a rash of other workers having attempted to end their own lives.

FOSTA-SESTA must also be viewed in the context of the #MeToo movement, as this legislation relates directly to violence against women in their workplaces.

Harassment and violence against women who do voluntary sex work is as much a part of the #MeToo discussion as the crimes of Harvey Weinstein, Al Franken and other high-profile men. Sex workers have a huge stake in making the claim "Times Up."

#MeToo has received criticism for supposedly denying accused men due process, but given the pervasive stigma placed on sex workers, who may lodge similar harassment and assault cases against their employers, they never receive anything remotely resembling due process.

A conversation is necessary to begin to break down the stigmas that surround sex work. By and large, sex workers and the LGBT community, those who are most directly affected, have been the ones to take up this issue.

This is especially important for Black trans women, who in many cases have few options but to perform sex work. Once again, our society's most marginalized are at risk of losing one of their only means of employment and survival.

The term "sex work" itself is a relatively new idea, introduced by longtime activist Carol Leigh, better known as the Scarlot Harlot, at a feminist sex worker conference in the 1970s.

"Sex work" was a political term intended to unite workers whose professions span the legal and extralegal markets.

While prostitution is increasingly criminalized under the guise of "trafficking," it becomes painfully clear that workers in the sex trades, from exotic dancers to pornography performers to street workers and beyond, all have a stake in protecting the rights of the most vulnerable workers.

Most sex workers cross in and out of sex industry. Many spend most of their working lives in waged jobs or, due to the fluctuations and instability of income as a sex worker, supplement their income in waged work.

Certainly factors such as chronic medical problems, racial prejudice, mental illness, generational poverty, gender oppression, transphobia, homophobia and legal status can all lead to working in the sex trades.

THE GOAL of ending sex trafficking--which conservative lawmakers claim to support--is positive, of course. But the reality is that FOSTA-SESTA's main use won't be stopping trafficking, but surveilling and controling how everyone uses social media.

As Engagdet reported, "More troubling is the fact that according to Motherboard, Google is purging adult content from private Drive accounts. Performers who sell clips of explicit material to users have lost videos and received complaints from customers. Even videos with relatively anodyne names have been wiped or left in place but made unable to play, a troubling infringement of personal rights."

The government approach to ending human trafficking--criminalization--won't stop trafficking but will create the conditions where it will happen under far more dire and dangerous circumstances. Morgane Merteuil, a French activist in a sex workers' union, wrote:

While discourses promoting the criminalization of sex work tend to individualize and essentialize the situation of sex workers--focusing on sex work as violence against women--a trade-unionist approach must seek to recontextualize this situation, in order to understand the dynamics from which it emerges. The issue of violence against sex workers, as well as that of "trafficking," cannot be considered without taking into account what makes possible such situations and maintains them. It seems, for instance, naïve to ask for state interventions against traffickers, without calling into question the restrictions on migrations that drive many Third World women to take on huge debts in order to migrate.

It's essential that we support sex workers and try to amplify their needs. This can take the form of supporting independent organizations that are taking measures to ensure sex workers' safety, housing and medical treatment.

We must fight for an end to human trafficking, but not at the expense of people who take part in consensual sex work. Furthermore, we can't interpret sex workers demands to improve their conditions as a desire to end sex work entirely. As Melissa Gira Grant wrote in her book Playing the Whore:

Sex workers should not be expected to defend the existence of sex work in order to have the right to do it free from harm...The experiences of sex workers cannot be captured by corralling then onto either side of the exploited or the empowered side of the stage. Likewise there must be room for them to identify, publicly and collectively, what they wish to change about how they are treated as sex workers without being told that the only solution is for them to exit the industry.

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