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Fuentes K. Decriminalizing sex work to combat exploitation in the sex trade. HPHR. 2021;44. 10.54111/0001/FFF2
Sex work is a criminalized field that has largely been legislated from a place of moral panic that has contributed to a conflation with sex trafficking. This fundamental misunderstanding of the work has constituted the rationale for criminalization of the sex trade thus far and perpetrated violence and victimization in the sex trade. Research on criminalization and alternative regulatory frameworks (end-demand and legalization) show that carceral approaches only further exploitative labor practices without addressing the structural issues that create vulnerabilities for this community. In this commentary, I argue for the adoption of a decriminalization framework that approaches sex work as labor to address the reproduction of inequalities, disruption of health and safety practices, and limited access to justice that criminalization currently consequates. While decriminalization would not address all the issues that marginalized sex workers face, the removal of punitive policies opens pathways for formal worker protections that honors the self-determination of sex workers.
Sex work is defined by scholars and activists immersed in the sex worker community as a consensual exchange of sexual services for money or other non-monetary goods such as housing, transportation, food, medicine, or other survival needs.1–3 Individuals’ lived experience in the sex trade may be defined either by coercion (sex trafficking) or by consent (sex work). The main distinction between one or the other is the consent that underlies the work, and for some sex workers, the issue is neither black nor white. There is a continuum of consent and coercion that is determined and affected by the same structural factors that force all of us into labor (i.e. capitalism). A sex worker’s choice to engage in the sex trade may not align morally for all, but moralistic approaches should not influence how the sex trade is regulated. What public health research on the implications of criminalization makes clear is that a person’s agency, including a person’s right to support themselves, is foundational to wellness.
In the U.S., the sex trade is currently criminalized under the rationale that sex work poses a threat to public health due to the potential risk of HIV and STI transmission and, as such, it is in the state’s best interest to regulate through criminalization.4 The extent to how the state wields its police power against sex workers is not limited to the laws that criminalize their work. Rather, it empowers actors of the state (law enforcement and social service providers) to deny basic rights to communities that it deems “criminal”.5,6 The impacts of criminalization reverberate in ways that make sex workers vulnerable through a lack of protections and further stigmatization from the remainder of society.
Fear of arrest contributes to disruption and avoidance of seeking health and social care services for sex workers.7–9 Furthermore, laws that prohibit communicating or soliciting for the purposes of prostitution10 (in CA, Penal Code 653.23(a)(1) PC) furthers the fear of arrest and compromises peer support networks where information is shared to keep sex workers safe.11 These carceral approaches can funnel sex workers into unsafe working conditions such as street-based work that worsen health outcomes for marginalized populations.12 Furthermore, this need to avoid public entities creates a downstream impact that can harm the families that depend on this income. Studies have noted how sex working parents avoided engaging in their child’s school for fear of being outed and that avoiding health services trickles down to their families as well – resulting in intergenerational health disparities.13–15
We know that where sex work is criminalized, sex workers experience increased violence from clients and law enforcement due to a punitive legal environment with few legal protections. While not all sex work is currently criminalized (i.e., strippers and adult film actors), sex workers that operate in quasi-criminalized spaces still suffer the detriments of criminality, including stigma and fear of reporting violent crimes.16 Due to its lack of barriers to entry, sex workers themselves are often comprised of people who experience discrimination or lack of opportunity in traditional labor markets or for whom their disability or lack of documentation status prevents them from entering the formal labor market at all.17 Subsequently, many sex workers live at the intersection of various systemic oppression as people of color, trans/queer-identified, and/or undocumented, and make up a significant percentage of our unhoused populations.18,19
By criminalizing sex work, we are critically interrupting a mode of survival for a hyper-marginalized group without changing any of the structural conditions that may have brought someone to sex work. This is not only inhumane but places the criminal justice system at the center of mitigating the compounded risks faced by sex workers (i.e., homelessness, workplace discrimination, deportation). Furthermore, the punitive legal landscape that criminalization and regulation create offers few legal protections for those whose intersectional identities make them more vulnerable to violence. In the U.S., this includes sexual and gender minorities, racial and ethnic minorities, particularly Black women, and people who use drugs, – communities that already face significant barriers to health equity. 3,20–22
There is a call for expansive criminalization particularly for sex trafficking, but the conflation of sex workers and sex trafficking survivors leads to legal implications that harm sex workers. Unfortunately, what we see in conversations that propose continued/expansive criminalization is that the experiences of Black, Indigenous, people of color (BIPOC) sex workers, and the trans community specifically, are dismissed even after they speak about the disproportionate harm they face from these carceral frameworks. Layleen Polanco, a transgender afro-latina who was an advocate for sex workers’ rights, was arrested for prostitution-related charges after not completing mandating services at Human Trafficking Intervention Courts and died in solitary confinement after not being able to afford bail. 23 When advocating for the rights of both sex workers and sex trafficking survivors it is iniquitous to ignore the intersectional harm that trans women of color experience from systems of policing and surveillance. Not only does this conflation support the need for systems of policing that have historically enacted violence on marginalized communities, but it also disregards the needs of sex workers such as “safe and healthy working conditions, freedom of association and the right to organize, access to health care, and social protection”. 24(p536) Instead, anti-sex work practices such as Prostitution Diversion Programs and criminalizing third parties (which provide increased condom availability, client screenings, and access to indoor venues) enact shame on the choices sex workers make while undermining their health and safety.25
While there are negative legal implications for conflating the two groups, sex trafficking survivors and sex workers are not two distinct and separate lived experiences. Those who have survived sex trafficking and those who engage in sex work, and some who have experienced both, find interest convergence in working to end the exploitation of individuals and their labor. All people engaging across the continuum of agency, as characterized by choice, circumstance, and coercion, deserve to be safe and healthy. Thus, supporting decriminalization (i.e., pro-sex work) and anti-trafficking are not at cross purposes.
A recent review of public health evidence demonstrates how carceral approaches and penalties for labor that people will engage in, regardless of the regime, are ineffective at deterring the sex trade and, in fact, can be deadly.3 Other regulatory efforts for the sex trade have included transitioning from criminalization to legalization or “end demand” models that criminalize clients. The latter seeks to criminalize clients on the assumption that soliciting prostitution is an act of male violence against women and that selling sex causes substantial psychological and physical harm that it is not possible to consent to it. 26 This binary framing of sex and power dynamics ignores the experiences of non-binary and transpeople as sex workers and the understanding that anyone, regardless of gender identity, can be exploited or the exploiter.27 The dominant understanding of sex work as a feminized field contributes to the cissexism and erasure that trans, non-binary, and gender non-conforming workers face when they are relegated to working under “cis-presenting” or femme identities.27,36 This model falls into the common regulatory trope of conflating sex work with sex trafficking, which the literature shows worsens working conditions that previously existed in environments where workers were criminalized, pressures sex workers to take on riskier clients due to the overall reduction in clients or lower their rates, increases incidences of violence against sex workers, and fosters fear of interactions with law enforcement. 25,28–30
Similarly, legalization removes criminal penalties for the worker but subjects them to government requirements to do their work, such as medical exams and costly licensing and registration requirements.31 This model’s restrictive and exclusionary regulation requirements create unintended harm on sex workers who cannot comply with regulations due to fear of being publicly outed as a sex worker on legal documents and the implications this stigma can have for their families and personhood.32 Furthermore, for those who do choose to apply for their legal right to engage in sex work, they can find themselves on the receiving end of strict criminal penalties for non-compliance and even more so due to discriminatory law enforcement practices that hyper-criminalize people of color and transgender migrants.33 These compounding factors push the most vulnerable sex workers further into the margins, running counter to the model’s basis of protecting sex workers.34
Both end-demand and legalization frameworks perpetuate harmful stereotypes of sex workers as vectors of disease or as agentless victims that need to be protected from themselves. To combat exploitative labor practices and provide comprehensive access to services for sex workers, we must start legislating from a place of labor acknowledgment.
Decriminalization or “Decrim” differs from previous frameworks because it operates under the assumption that sex work is work and that violence experienced by sex workers is fundamentally a labor issue that requires intervention to ensure worker safety. Decrim acknowledges the larger systemic inequities that influence why someone may enter and choose to stay in the sex trade as opposed to other forms of labor. It argues that we should not criminalize the choices people make to survive in a capitalist system where we all use our body for labor. The two-fold act of acknowledging sex work as labor and decriminalizing sex work opens the political landscape for sex workers to formally fight for workplace protections. Strippers United, a Los Angeles-based stripper collective that has been organizing for safer working conditions is a perfect example of what can happen when a sector of the sex trade organizes their labor force.35 Since their inception in 2019, they have successfully lobbied to pass AB 5 (a bill classifying strippers as employees in California), started a know your rights campaign for dancers to identify violations at their own clubs, and are steadily mobilizing clubs in California to start a legally recognized stripper union. 35
A tangible step towards sex worker-affirming approaches means destabilizing our perceptions of who sex workers are and collecting accurate data on the needs of sex workers in our communities. Sex workers across the nation are actively organizing against the harms of criminalization through formal groups like Sex Worker Outreach Project chapters or more localized mutual aid circles. However, until sex workers have the resources to engage in community-led data collection on their intersectional needs and numbers, sex worker erasure will continue to prevail. Public Health officials and policy makers who want to support these efforts need to take on the labor of reaching out to these groups and providing them with funding or other non-monetary resources to uplift this crucial step. While research is important, academic timelines can often run counter to the pressing needs of daily organizing work. Therefore, an approach to supporting sex workers should include a mix of advocating for policies that scale back criminalization, research that is informed and led by workers, and joining organizing efforts.
Current carceral approaches to the sex trade neither addresses exploitation or the structural inequities that furthers violence and victimization. Decriminalization can address many of the issues that criminalization and anti-sex work legislation creates, such as institutionalized violence, reproduction of inequality, disrupted safety practices in the workplace, limited access to social services, and restricted access to justice.29,37 However, decriminalization alone is not enough to end exploitation in the sex trade because criminalization is only one of many contributing factors. To ensure that sex work remains a choice as often as possible, it is important to address the discriminatory practices that exacerbate poverty, limit the choices people have, and makes these communities vulnerable to exploitation and violence. Researchers and policymakers need to meet sex workers where they are to uplift their efforts to resist criminalization on the basis that sex work is legitimate work that deserves access to the same protections and dignity of other labor. This critical shift is necessary to combat labor exploitation and respect the self-determination of criminalized workers in the sex trade.
I would like to thank the UCLA Center for HIV Identification, Prevention, and Treatment Services (CHIPTS) for their commitment to sex-worker informed sex trade research. Special thanks to Ayako Miyashita Ochoa, Dr. Ian Holloway, and Juan Jauregui for their continued support and guidance to my scholarship.
The author(s) have no relevant financial disclosures or conflicts of interest.
Kimberly Fuentes is the Service and Outreach Coordinator for the Sex Worker Outreach Project of Los Angeles (SWOP LA) where she distributes harm reduction supplies to street-based sex workers and leads a national online support group for current and former sex workers. Kimberly is also a PhD student in Social Welfare at the UCLA Luskin School of Public Affairs. Her research areas include exploring the criminalization of sex work as an act of state violence, the ways sex workers resist criminalization, and the role that social work can play in uplifting this resistance.
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