With the FOSTA-SESTA bills making things more difficult for sex workers, a potential solution is to legalize — or decriminalize — sex work in America.

In April 2018, two bills were passed in the House and Senate in an effort to minimize sex trafficking. The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and Stop Enabling Sex Traffickers Act (SESTA) bills otherwise known as FOSTA-SESTA created an amendment to Section 230 of the 1996 Communications Decency Act, which was passed to punish people who knowingly transmit “obscene” or “indecent” messages to anyone under the age of 18.

Congresswoman Ann Wagner, a Republican from Missouri who wrote the FOSTA bill, said in a February 2018 press release that “The FOSTA-SESTA legislation will significantly help prosecutors crack down on websites that promote sex trafficking…”

After the FOSTA-SESTA bills passed, things certainly changed. Internet service providers and websites are now held responsible if people use the platform for “assisting, facilitating, or supporting sex trafficking.”  

But according to Mia Action, a professional dominatrix in Philadelphia, FOSTA-SESTA is not working. Not only did the bills just push more sex traffickers to the streets, but it had an unintended consequence: it reduced the online communities that sex workers used to maintain their business and pushed some of them to the streets, too.

“Many platforms that all sex workers use … have been either deleted or heavily censored, or changed in a way that makes using them very difficult,” Action said.

For sex workers who use drugs, this impacts them even more. According to a study published by Harm Reduction International, sex workers who use drugs are at an increased risk of experiencing violence, both from the government and from within the community. And although many sex workers do not use drugs, when those who do are suddenly pushed into street-based sex work, the risk escalates for them, too, according to the same study.

“Many platforms that all sex workers use … have been either deleted or heavily censored, or changed in a way that makes using them very difficult."

— Mia Action, Professional dominatrix

What went wrong

According to “The Social System” by American sociologist Talcott Parsons, communities have largely been determined by who people know and where they are located. With the rise of the internet, that changed. Communities for sex work became more accessible when they went online, information was communicated more efficiently, and client bases were easier to build. Sex workers could vet potential clients, which gave them some more control over their safety during their transactions.

But with the introduction of FOSTA-SESTA, those internet communities began to disappear. Website administrators became nervous that ads on their site could be construed as sex trafficking, so they took them down. Private group chats between workers were deleted by the platform on which they were hosted.

Client lists that workers had built were taken down. Forums and avenues that could have helped to vet clients were gone. Their entire websites disappeared overnight, leaving them with few options, one of which was to go work on the street.

According to Kelly*, a sex worker in Kensington who has experienced addiction, violence is prevalent for people like her who do street-based sex work.

“Of course there’s violence,” said Kelly. “It’s everywhere.”

Advocates and outreach workers agree.  

“[In] street-based sex work, you have very little ability to sort of screen your clients,” said Jordan Holycross, a volunteer at Project SAFE, a harm reduction organization in Philadelphia that works to help sex workers.

According to Sarah Gawricki, the community liaison for the Philadelphia harm reduction organization SOL Collective, the risks of street-based sex work go beyond screening clients.  

“There was that law in New York where if you were caught with condoms you could be arrested for being a prostitute,” Gawricki said. “And they do similar things here in Philly.”

While there isn’t a law specifically stating that condoms can be used as evidence for prostitution-related charges, the vague definition of “possessing instruments of crime” can allow for them to be used as evidence.

According to an analysis completed by the Pittsburgh Tribune-Review, there were 100 cases in 2017 in Allegheny County in which a person was charged with prostitution and the possession of an “instrument of crime.” Fifteen individuals were charged with the possession of an instrument of crime specifically because they had condoms. Fourteen of those cases mentioned that condoms were seized as evidence, but they weren’t noted within the charge.

Now that so many sex workers are being forced to do street-based sex work, they also must choose between not using protection and having a higher risk of getting arrested if they choose to use condoms, Gawricki said.

Because of the dangers of street-based sex work and the lack of resources that are available for sex workers especially those who use drugs and those with substance use disorder harm reduction organizations like SOL Collective and Project SAFE are working to promote safety in sex work. But those organizations are only a band-aid on the bigger issue.

“[In] street-based sex work, you have very little ability to sort of screen your clients."

— Jordan Holycross, Project SAFE volunteer

A possible solution

In areas around the world where sex work has been decriminalized or legalized, the numbers don’t lie it’s safer not only for sex workers but for the population as a whole.

Take Rhode Island for example.

In 1980, sex work was decriminalized when the “prostitution” laws were being amended. It reduced sex work from a felony to a misdemeanor. When the law was being drafted, the section that dealt with committing the act of sex work itself was removed. The legislation — § 11-34-8 of the Rhode Island Code — specified outdoor solicitation. Indoor solicitation wasn’t mentioned at all.

That loophole doesn’t mean that sex work was made legal, but rather that it was decriminalized, meaning that the criminal classification of indoor sex work for the state was removed. It wasn’t legal, but the criminal penalties for it were removed.

The loophole went unnoticed until 2003, when police in Providence raided several spas. The police lost their case in court due to the loophole, which remained in effect until November 2009, when legislation was passed to close it.

The outcomes that occurred during the decriminalization of sex work were considered to be positive ones. According to a study from The Review of Economic Studies, reported female rape offenses went down by 30%, and female gonorrhea incidents went down by 40%. Those numbers aren’t just limited to sex workers, either. The reported rape offenses went down by 30% for the entire female population in the state of Rhode Island.

And Rhode Island isn’t the only place that’s had positive outcomes from decriminalizing sex work.

According to the American Economic Journal, when legal street sex work zones were opened in 25 cities across the Netherlands, reported sexual abuse and rape decreased by 30-40%. In the cities that permitted licensed sex workers to work in those zones, reported rapes dropped by about 40%. In areas where sex workers were not enforced and licensed, the reductions were slightly lower.

The study conducted by the American Economic Journal concluded that opening a sex work zone led to a “decrease in sexual violence on women more generally by providing an anonymous, appealing, and easily accessible outlet for sex to otherwise violent individuals.”

In Nevada, where sex work is legal in some counties with strictly regulated brothels, sex workers are not the only ones to benefit from its legalization — it also benefits the local economy. Dennis Hof, the owner of many brothels in Lyon County, told the Washington Post that between fees, tourism, and taxes, his brothels contribute an estimated $10 million to the local economy.

"If someone who’s engaging in prostitution comes up to law enforcement and needs medical treatment or needs law enforcement intervention — basically is reporting rape or violence — then you may not in any circumstance initiate charges against them."

— Sarah Robinson-Barbera, Justice for Victims Fellow for the Institute to Address Commercial Sexual Exploitation

Why something needs to change

Without legislation and regulation, sex workers are at a higher risk of becoming victims of violence and murder. Not only that, but they face a disproportionate amount of manipulation at the hands of corruption within the police force.

Going to the police can be so dangerous for sex workers that Mark Larson, a prosecuting attorney for King County in Seattle, had to send out a memo to the King County Law Enforcement Agencies in April of 2017, highlighting a change in policy.

According to Sarah Robinson-Barbera, the inaugural Justice for Victims Fellow for the Institute to Address Commercial Sexual Exploitation, this policy is beautifully written.

“If someone who’s engaging in prostitution comes up to law enforcement and needs medical treatment or needs law enforcement intervention — basically is reporting rape or violence — then you may not in any circumstance initiate charges against them,” Robinson-Barbera said.

With the legalization of sex work, there wouldn’t need to be a policy like that in the first place. According to a study by the British Medical Journal, legalizing sex work may reduce violence because sex workers will be more willing to go to the police if they need help. It could also reduce opportunities for police corruption, such as police officers offering sex workers the opportunity to have their charges dropped if they engage in sexual intercourse.

Despite the promising numbers, there are still some limitations to legalizing sex work, the biggest one being that the nature of the industry could change with legalization. A major theory in economics states that illegal activity would decrease if it’s made legal — however, that’s not always the case.

A study conducted in 2018 by the Oregon Research Institute found that when Oregon legalized the recreational use of cannabis, the frequency of use by youth that were already using cannabis before it was legalized increased by 26%.

While it’s not sex work, it’s still indicative that the industry can’t be fully predicted. The numbers do hold promise in legalizing or at the very least, decriminalizing sex work. But it’s not a guaranteed result.

However, it is clear that FOSTA-SESTA has taken away the resources and communities that were necessary for many sex workers to stay safe. Gawricki said that without those resources and communities, sex workers especially those who use drugs are being placed into high-risk situations that they may have little to no control over.

And to make matters worse, FOSTA-SESTA has not yet proven to be successful. Despite Congresswoman Wagner’s claims that the law eliminated 90% of sex-trafficking ads, it hasn’t.

The Washington Post fact-checked her statement and discovered that while there was a large dip in ads in April 2018, that came just after the closing of Backpage.com, a website that had held the majority of ads concerning sex work. But that large decrease in ads wasn’t due to the passing of FOSTA-SESTA. Rather, it was due to the website’s seizure by the federal government on April 5, which occurred because the chief executive of the site had pled guilty to charges of money laundering and conspiracy to facilitate prostitution.

The number of ads may have decreased drastically, but the Washington Post reported that by August, they had risen up to around 75% of the amount that there had been before.

*Names marked with an asterisk are those of people who requested we use their first name only due to the sensitivity of the subject matter.