Commentary Law and Policy

Anti-Trafficking Legislation Shouldn’t Come at a Cost to Victims, Sex Workers

Melissa Petro

Widely supported companion bills in Congress designed to fight online sex trafficking would do more harm than good, advocates say. The bills undermine the rights and safety of sex workers and trafficking victims, and in supporting them Democratic politicians are voting against their constituents' core values.

The U.S. House of Representatives passed a bill on Tuesday that critics say will have a devastating impact on sex workers and victims of trafficking. HR 1865, known as the “Allow States and Victims to Fight Online Sex Trafficking Act” or FOSTA, will undermine existing laws that protect online platforms from some types of liability for their users’ speech. If the companion bill to FOSTA passes the Senate and is signed into law, prosecutors will be able to use both state sex trafficking laws and “promotion of prostitution” laws to prosecute websites such as Backpage, which they say sells victims of trafficking. There will also be a new federal crime that specifically targets websites that work with individuals who sell sexual services.
The legislation was publicly backed by Ivanka Trump, whose role at the White House is not entirely clear, and was co-sponsored by Democratic Rep. Joyce Beatty (OH), as well as celebrities who identify as politically left, including Seth Meyers and Amy Schumer. It passed with an overwhelming bipartisan vote of 388 to 25. The bipartisan sponsors of the U.S. Senate’s pending companion bill, S 1693, the “Stop Enabling Sex Traffickers Act” or SESTA, put out this statement urging the Senate to act.
But critics of this type of legislation—including individuals across the sex work spectrum—say FOSTA and SESTA will do more harm than good. Bipartisanship is great, they say, but not when that means Democratic politicians voting against their constituents’ core values. Traditionally, liberals oppose criminalization of “victimless crimes” such as sex work or drug use and acknowledge that efforts to increase policing and government surveillance hurt vulnerable communities. It’s also a core progressive principle to listen to and support marginalized communities, including women, LGBTQ folks, immigrants, people of color, and yes, sex workers. Yet this legislation directly undermines all these stated values and the rights of sex workers by putting the services designed to help both consensual sex workers and victims of trafficking in jeopardy, closing avenues sex workers across the spectrum rely on for their personal safety and economic well-being. 
On Twitter, the Chicago Taskforce on Violence Against Girls and Young Women said that they were “enraged” to hear that FOSTA had passed in the House. “Not only does this bill pose dangers to survivors of trafficking but also to sex workers.” SWOP Behind Bars, an organization that provides resources to sex workers who’ve been incarcerated, said that FOSTA hurts “vulnerable communities” and that “the ‘unintended consequences’ of these knee jerk policies create more stigma and thus…discrimination.”
Critics condemn both FOSTA and SESTA for willfully conflating trafficking and prostitution. Sex trafficking is the forced entry of an individual by a third party into sex work, without said individual’s consent, as opposed to those voluntarily in sex work, who are trading sexual services for money or things they need due to circumstances other than force.
Pressuring online advertising platforms to close, they say, has devastating effects on consensual sex workers, and effectively pushes the most marginalized among them into the street where there is a greater risk of violence. Shuttering sites like Backpage—which sex workers have used for meeting clients—harms trafficking victims as well, by impeding law enforcements’ anti-trafficking efforts.
Backpage was forced to close its adult services section in January 2017 as a result of ongoing pressure and scrutinization by Congress. Reacting to the closure, Lois Lee, founder of Children of the Night, a national service provider for trafficked victims, said it was a “sad day for America’s children victimized by prostitution.” Lee described Backpage as a “critical investigative tool” for law enforcement and said that ads for her organization and its 24/7 rescue hotline “were featured prominently on Backpage, and became the highest source of our calls and increased the numbers of children coming to us for rescue.”
FOSTA and SESTA are the latest examples of anti-trafficking legislation vehemently opposed by the people it is purportedly helping. It’s also the latest installment in the exhausting fight between liberals siding with the establishment and more progressive-minded voters demanding change. 
While there were a lot of factors in what happened in the 2016 election, one argued by the Atlantic‘s Molly Ball is that infighting was partly a reason for the Democrats loss. The Democratic presidential nominee, Hillary Clinton failed to get young people and people of color excited about her candidacy, and underestimated the electorate’s commitment to key issues such as criminal justice and police brutality. The campaign assumed progressive voters would set aside their differences with the candidate. Instead, says Ball, “many [voters] refused to fall in line.”
“Protest votes” for third-party candidates were enough to seal Clinton’s fate—and it could happen again in 2020. 
A “liberal hero” and “rising star”  in the Democratic Party, California Sen. Kamala Harris has been named as a probable presidential candidate in 2020. She also has been an active force behind numerous anti-sex worker campaigns. As San Francisco district attorney in 2008, Harris opposed legislation decriminalizing sex work, arguing that decriminalization “conceals the inhumane nature of prostitution” and that it could put trafficked victims at greater risk by placing them “outside the protection of the city’s law enforcement system.” Harris led a charge against the free classifieds website, Backpage, despite years of vocal resistance from sex workers. Just weeks before her election to the U.S. Senate, she filed charges against three Backpage staff members — a move the sex work activist group, the Erotic Service Providers Legal Education Research Project, called a “political stunt.” 
At best, Harris and other Democrats signing on to an anti-sex work agenda are viewed by progressives as well meaning but deeply misguided. At worst, they are written off as willfully ignorant of the complexities of the issue and profiting politically off the violence faced by sex workers. For Injustice Today, author and advocate Melissa Gira Grant spoke with opponents to FOSTA, including survivors of sex trafficking, and surmised that anti-trafficking legislation has less to do with protecting victims as it does abolishing sex work full stop.
Gira Grant suggests that the conflation of sex work and sex trafficking is intentional, noting that the survivor-led organizations that support anti-trafficking legislation of this nature are socially conservative and religiously affiliated, such as the National Center on Sexual Exploitation (formerly known as Morality in Media). On Twitter, Grant also noted that the bill is specific to sex trafficking and prostitution versus other industries with workers vulnerable to exploitation, such as domestic workers. “It does not, say, allow domestic workers who have been trafficked to bring civil suits against Craigslist or Handy dot com … or any other website where their services were advertised.”
Sex workers across the spectrum rely on online services and peer networks for safety information and harm reduction techniques, which FOSTA will undermine. If passed in the Senate, websites that share information on how to screen for violence and “bad date” lists that name individuals who have previously victimized people in the sex trade—not just traffickers—could be charged with “promotion or facilitation of prostitution.”
One organization that could be potentially affected is Lysistrata, an online emergency fund for individuals with experiences in the sex trades. Founded in 2016 after the closure of Backpage’s adult section put people in precarious survival situations, the organization provides financial assistance to sex workers who are struggling due to illness, injury, homelessness, wrongful arrest and incarceration, unstable or abusive working conditions, domestic violence, discrimination, and other factors that affect their ability to make a living.
On Twitter, Lysistrata said, “Two of the most urgent issues sex workers in the U.S. face are arrest and assault (by both police and clients).” FOSTA, it contends, will only increase these types of harmful interactions. In a second tweet, the group reminded representatives that it is vital for sex workers to be included in policy making about safety and the best ways to fight trafficking. 
Progressives (not just sex workers) want progressive candidates—and a great way to recognize them is to look for candidates that support legislation that decriminalizes sex work. In New York City, for example, Mayor Bill DeBlasio listened to sex workers and their allies’ call to end the use of condoms as evidence of a crime (similar policy changes were also enacted in Washington, D.C.). In states like Alaska and Michigan, sex workers are working with lawmakers to propose legislation that would make it illegal for police officers to sleep with sex workers on the job. In San Francisco, sex workers can now report violent crimes against them without facing arrest.
If people want to protect victims, and address the exploitation of vulnerable people, there are smarter laws than FOSTA. Political representatives: Pay attention to sex workers, because sex workers—and their allies—are paying attention to you.

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