Criminalizing Sex Work to Combat Trafficking: Rhode Island Considers the Wrong Solution to the Wrong Problem

Andrea Ritchie

The State of Rhode Island seems poised to take a significant step backwards on its legal treatment of both sex work and trafficking when legislators resume their session this fall.

The State of Rhode Island seems poised to take a significant
step backwards on its legal treatment of both sex work and trafficking when legislators resume their session this fall. Local advocates expect that lawmakers
will reconcile two bills, House Bill 5044A and Senate Bill 0986A, both of which
would institute criminal penalties for consensual commercial sexual exchanges
which take place indoors. Failing that, the Mayor of Providence, David N.
Cicilline, wants to issue an Executive Order that would do the same when the
City Council reconvenes in September.

 

In
the early 1980s, Rhode Island criminalized virtually all sex outside of
marriage. That changed when a lawsuit was filed by the sex workers’ rights
organization COYOTE (Call Off Your Old Tired Ethics), on the grounds that the
statute was overbroad and discriminatorily enforced against women engaged in
sex work. In their haste to amend the statute to bring it into compliance with
the federal Constitution, Rhode Island legislators inadvertently cut out provisions
specifically criminalizing solicitation, leaving only the language criminalizing
street-based prostitution. No one noticed for about 20 years, while arrests,
prosecutions, and convictions for indoor prostitution continued.

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A few years ago an enterprising defense
attorney started successfully moving to dismiss charges relating to consensual
commercial sexual exchanges taking place indoors, on the grounds that such
conduct was not, in fact, illegal under the Rhode Island law. Since then, there
have been increasingly vocal calls to recriminalize indoor prostitution.  Up until recently, such efforts were
largely unsuccessful. This year, the issue gained traction following an assault
of a Rhode Island woman by Phillip Markoff, dubbed the “Craigslist killer.”
Before breaking for the summer, the state House and Senate passed two different
bills, both of which would criminalize all forms of prostitution, regardless of
where it takes place.

Advocates
for the legislation claimed that it is absolutely necessary to criminalize all
forms of prostitution in order to fight trafficking in persons. 

“Criminalization of
those you seek to help is not the answer,” responded Dr. Penelope Saunders of
the Best Practices Policy Project in
a letter opposing the legislation.  The
letter went on to state:

 

 In our experience, the
criminalization of prostitution forces women, men and transgender [people] who
engage in commercial sex to the margins, away from service providers and
advocates who could help them. The
Move Along report released in 2008 [by D.C. based organization
Different Avenues]
http://www.differentavenues.org/MoveAlongReport.pdf found that laws against
prostitution prevented these communities from accessing assistance from the police
even in extreme situations of rape and physical violence. Unfortunately when
sex workers went to the police to receive help, the pervasive stigma and
discrimination bolstered by laws prohibiting prostitution meant that police
officers often dismissed these calls for help, failed to respond appropriately
or at times arrested those in need of assistance.

 

The
Sex Workers Project http://www.sexworkersproject.org,
a
New York City based organization which has provided legal and social
services
to scores of trafficking victims over the past seven years, concurred
in a
memorandum submitted to the Rhode Island Senate:

The reality is that
such a measure is likely to cause severe
harm to victims of human trafficking by subjecting them to repeated
arrest,
incarceration, and retraumatization, without increasing the likelihood
of
locating, identifying, or assisting trafficking victims
.

Proponents of the legislation
repeatedly claimed that, in the absence of a state law criminalizing indoor
prostitution in Rhode Island, law enforcement’s hands are tied, and they are denied
the tools they need to fight trafficking or protect minors in prostitution. In reality, existing federal and state
anti-trafficking laws, as well as existing criminal provisions against
kidnapping, extortion, assault, rape, and indentured servitude, give state and
federal law enforcement and prosecutors a panoply of tools to pursue those who
harm people who are engaged in prostitution without collateral damage to
victims of trafficking.

After all, labor trafficking can be – and is – prosecuted
without criminalizing picking tomatoes, domestic work, or waiting tables in a
restaurant. F
ederal anti-trafficking law also prohibits and severely
punishes inducing a minor into prostitution, even where no force, fraud or
coercion is used, regardless of the status of state laws.

Some claimed that police need to
be able to arrest trafficking victims in order to be able to get them away from
traffickers and help them. Law
professor Ann Jordan, Director of the
Program on Human Trafficking and Forced Labor at American University Washington
College of Law
points out that blanket arrests of people engaged in prostitution in
the hopes of encouraging trafficking victims to come forward and testify
against their traffickers has the effect of using a blunt instrument where
careful, well-informed surgical strikes are needed.

"It is a weapon we wouldn’t
dream of using against any other victim – for instance, we would never argue
that we need legislation that allows us to arrest victims in order to stop
domestic violence."  The purpose of
the criminal law, Jordan says, is to prosecute criminals, not to twist victims’
arms into recognizing their victimization. Steven Brown, legislative counsel of
the ACLU of Rhode Island agrees: “It is a cruel public policy that forces
trafficked women to trade one set of bars for another,” he says.

In his article Sex Trafficking: Identifying Cases and Victims, published by the
National Institutes of Justice Journal, Robert Moossy, Director of the Human
Trafficking Prosecution Unit in the Civil Rights Division of the United States
Department of Justice, advocates focused, in-depth investigations of suspected
trafficking operations, not indiscriminate arrests of potential victims. According to Moossy, the fight
against human trafficking requires the voluntary cooperation of victims,
obtained by building trust over the long term and offering much needed support
to overcome fear of retaliation by traffickers, and by addressing the
circumstances that render victims vulnerable to coercion.

The findings of SWP’s most recent human
rights documentation project, Kicking
Down the Door: The Use of Raids to Fight Trafficking in Persons
, are consistent with these trafficking experts’ experiences. One of the primary findings
of our report was that focusing on enforcement of prostitution statutes to
address human trafficking has led to the identification of very few victims of
trafficking into prostitution. Even more disturbingly, it can contribute to
further traumatizing and isolating them.
Trafficked women reported that
they were repeatedly arrested, in some cases up to ten times, in police raids
on brothels and other sex work venues, convicted of prostitution, and even
sentenced to jail without ever being identified as trafficked. Their
experiences were corroborated by interviews with service providers who had
worked with hundreds of trafficking victims over the years.

Law enforcement personnel interviewed
for SWP’s report described difficulties gaining the trust of people arrested as
part of anti-prostitution efforts, and noted that they were often not good
witnesses in the prosecution of their traffickers. This is certainly consistent
with the experience of the Providence Mayor’s “outreach” team, which has not
successfully identified or assisted a single trafficking victim during raids on
spas and brothels. As one law enforcement agent put it:  “The nature of the crime and the nature
of the victims make raids not effective. What level of evidence do you need?
You need a victim to be willing to open up and tell you.”

A service provider made
the point more bluntly, “it’s incongruous to think that you would open up after
being handcuffed.” SWP’s experience, and that of other service providers, is
that trafficking victims are identified after months of building trust in the
offices of social service agencies providing supportive counseling, not immediately
following arrest in a police station under interrogation and the threat of
criminal charges, deportation, or both.

Much has been made of
the fact that the House Bill would allow people who have been trafficked to
assert an affirmative defense to prostitution charges. However, Jordan points out that the availability of an
affirmative defense is not a suitable answer to the concern that the proposed
legislation would lead to arrests of trafficking victims:

 

Proving
trafficking or another crime would become the woman’s responsibility, which she
would have to assume right after she is arrested…[when] she is most likely to
be afraid, unsure and unable to speak clearly and honestly. Who would help
these women collect this evidence? The vast majority of the women will be
represented by public defenders who have very limited capacity and time and
little funding to mount a lengthy and complicated defense based on trafficking.
Most prostitution cases are moved quickly through the system and most public
defenders spend very little time with their clients and build the kind of trust
required for a victim of trafficking to disclose her situation. Thus, it is
highly probable that the overwhelming majority of victims of trafficking would
be arrested and prosecuted multiple times for prostitution under the proposed
bill without ever being recognized as victims.

The
Senate bill, while not as draconian as the house bill, still imposes hefty fines,
ranging from $250 to $1,000 – which, as the Brennan Center for Justice at NYU points
out, creates additional obstacles for people trying to move past a criminal
conviction
.

Once
the notion that legislation criminalizing indoor prostitution was required to
address trafficking in persons was largely debunked in the media, the real
motivation behind the bills, and particularly the House legislation, became
apparent – punishing women who engage in prostitution. However, in the end, neither
piece of legislation is likely to have much of an impact on the incidence of
prostitution. As Jordan says:

 

Many women
who engage in prostitution do so for reasons of economic insecurity or
substance abuse. They would not legally qualify as trafficking victims but may
qualify as victims of any number of other crimes. The bill would saddle these
women with a criminal record, cause them to forfeit their limited assets, and
go into debt to the state, all of which would have the effect of making it even
more difficult for them to leave prostitution and find alternate employment.
Women in prostitution need nonjudgmental support and assistance, not arrest
detention and prosecution.

 

The Rhode Island Chapter of the National Organization of
Women
agrees, emphasizing that prostitution is “a complex, social and political issue
that cannot be solved by increasing rates of incarceration for the prostitutes.”
Josephine Martell, RI NOW’s legislative chairperson explained

 

We wish to reduce the
unnecessary incarceration of sex workers that this bill proposes, because we
believe that this actually increases the likelihood that they will return to
prostitution.

 

There is little question that criminalization of
prostitution decreases choices available to people engaged in sex work rather
than increasing their options to leave the industry or a trafficking situation.
SWP’s research indicates that the vast majority of individuals engaged in prostitution
do so for survival or to meet economic needs
.


Fines and asset forfeitures
only
further entrap women in the very dire economic straits that so often motivate
them to voluntarily engage in prostitution or which render them vulnerable to
trafficking or coercion in the first place. As the ACLU of Rhode Island notes,
under the asset forfeiture provisions of the proposed legislation:

 

…women are likely to lose
whatever little money or property they have if they are arrested, making any
efforts to turn their lives around even more difficult.

 

Additionally, once saddled with a criminal record, sex
workers have fewer options for legal employment, and can be shut out of public
housing, evicted from private housing, lose custody of their children or be
denied immigration status, further increasing their vulnerability to abuse and
trafficking. In short, being arrested for prostitution increases the likelihood
that people will be pushed by circumstance or coerced into continuing to engage
in prostitution as their only option for survival.

Currently, 25% of women incarcerated at the state
correctional facility for misdemeanor offenses are there on
prostitution-related charges. According to the Family Life Center of Rhode
Island, reforming RI’s prostitution laws would reduce the RI female prison population
by at least 15 percent
.
A report released by the
FLC last month concluded that “the state could save half a million dollars in
law enforcement and incarceration costs by not arresting and incarcerating
people for working as prostitutes.” Groups like Rhode Island NOW argue that these
funds could be used much more effectively for social services and education
that increase the options available to women currently engaged in sex work. “
The idea is by taking a different stance instead of a purely
punitive one that costs lots of money and is essentially throwing money down
the drain, that you can invest that money in social programs that would address
all the different problems that people are talking about,” said Mimi Budnick of
the advocacy group Direct Action for Rights and Equality.

 Brown concludes:

If the legislature wants to
seriously address prostitution, it should address poverty, cuts in the
education budget, a lack of affordable housing and a shortage of mental health
and addiction treatment services…

Much
of the impetus for the bill has arisen from a concern that Rhode Island is the
only place in the U.S. “outside of a few counties in Nevada” to have eliminated
criminal penalties for some forms of prostitution. However, in this respect,
Rhode Island finds itself on the cutting edge of a growing trend towards recognition
that arrests of sex workers ultimately help no one. As Ronald Weitzer, a
Professor of Sociology at George Washington University in Washington, D.C. and
author of Sex for Sale: Prostitution,
Pornography, and the Sex Industry
(Routledge Press) puts it in an op-ed
published in the Providence Journal,
 
“increased criminalization is
not the answer.” In fact, Dr. Weitzer states:

 

Rhode Island’s two-track policy
regarding street and indoor workers — where those indoors are not subject to
arrest — is a model for other states, and many police departments already
follow this policy informally.
 

By continuing with this
enlightened approach, Rhode Island would by no means stand alone. For instance,
New Zealand decriminalized prostitution in 2003.

 

Nor would maintaining the
status quo turn Rhode Island into a haven for sex trafficking. A government
commission in New Zealand found no link between the decriminalization of the
sex industry and human trafficking. 

In fact, the United Nations Human Rights Commission Trafficking in
Persons report for 2008 notes that the incidence of international trafficking
in New
Zealand is “modest.”

Rhode Island legislators’
concern for victims of trafficking is laudable. But they should examine
successful approaches to human trafficking rather than repeat the mistakes of
the past by penalizing its victims. If
Rhode Island is serious about combating trafficking in persons, Jordan makes
the following recommendations:

A more cost-effective,
targeted approach to the issue would be to ensure that state law includes (1)
trafficking into forced labor, slavery, servitude and debt bondage in order to
ensure that people trafficked into farms, factories, homes, streets, brothels
and other sites are protected, (2) state-funded services for victims so that
NGOs can provide the type of support discussed by Moossy for safe and healthy
survivors, and (3) ample funding and training for law enforcement to be able to
carry out the type of investigations recommended by Moossy.

 

Hopefully, when Rhode Island
legislators come back in
session after the summer break they will find the courage
to go
forward, not backward, in the fight against human trafficking by strengthening
state anti-trafficking legislation rather than rushing to
judgment and enacting legislation that would expand penalties for prostitution that will
ultimately have the effect of punishing victims of trafficking and other
crimes, and pushing them further from help. 

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