New Mass bills seek to decriminalize prostitution. For the most part.
Last Wednesday, Mass state Rep. Kay Khan of Newton filed two bills, An Act Relative to Sexually Exploited Individuals and An Act Relative to Codifying Protections for Sexually Exploited Children, that seek to decriminalize the selling of sex. One completely decriminalizes young people involved in sex work by repealing a current statute, while the other attempts to decriminalize adult sex workers by striking certain language and creating a new category of sex workers that would be protected under the law. The two bills evolved from an earlier bill that was initially filed in 2017.
Any step toward decriminalization is a win for sex workers’ rights. Still, though there are some highlights as explained herein, critics say these bills leave statutes, language, funding, and institutional infrastructure in place that undermine the legislation’s goal of reducing criminalization, in part by creating incentives to pursue certain sex workers more aggressively than others.
While current law ensures that courts must go to great lengths to avoid the arraignment of sexually exploited children, loopholes remain through which young people in the sex trade can still be prosecuted. As stated in the Mass General Laws, “If the court finds that the child has failed to substantially comply with the requirements of services or that the child’s welfare or safety so requires, the court may remove the proceeding from file, arraign the child and restore the delinquency or criminal complaint to the docket for trial or further proceedings.” By repealing that section, the act relative to sexually exploited children closes those loopholes and completely decriminalizes young people involved in sex work.
The bill addressing adult sex workers, on the other hand, is much weaker than its counterpart. It partially decriminalizes the selling of sex but leaves in place statutes that criminalize the buying of sex, de facto establishing a model of sex work legislation introduced in Sweden in 1999. Such a model, which criminalizes clients but not sex workers, has created increasingly dangerous working conditions for the sex workers it allegedly aims to protect in the European countries that have adopted it. Global Network of Sex Work Projects (NSWP), an organization that advocates for social services and self-determination for sex workers of all genders, reports, “There is no evidence that levels of sex work have declined as the law [in Sweden] intended. Instead, sex work takes place in increasingly clandestine locations, and sex workers who more immediately need the income from their sex work experience greater danger and difficulty in the context of their sex work.” Ugly Mugs, an organization that collates reports from those working in the sex industry, found that one year after Ireland implemented the Swedish model, Irish sex workers reported a 77 percent increase in violent crime.
According to Caty Simon, a Holyoke-based organizer and co-editor of national sex worker media site Tits and Sass, “When clients are targeted the whole industry is driven underground. To avoid the risk of being caught, clients resist screening processes and opt for more isolated locations for sessions, exposing sex workers to more violence and reducing our access to harm reduction practices such as ID checks.”
Simon explains how criminalization of both clients and sex workers endangers sex workers and complicates their processes: “I can never discuss the conditions of my work with clients if I don’t want to incriminate myself. It’s as absurd as having writing invoices be outlawed, and as deadly as the fact that that omission leaves me vulnerable to rape.”
In Sweden, the sex industry was not outlawed—for workers or clients—prior to 1999. So while its model inaugurated new criminalization, the Mass bill differs in that it amends language that criminalizes sex workers, but simply leaves in place the existing statute that criminalizes clients. Rather than striking the solicitation statute that prohibits the selling of sex entirely, the bill introduces a new category of sex worker called a “Sexually Exploited Individual (SEI)” and creates an exception that states that SEIs shall not be punished by the solicitation law. The new category of SEI is broad and includes people voluntarily engaging in sex work, trafficking survivors, and “common night walkers,” a legal category often used in the arrest of street sex workers.
The decriminalization of SEIs is a huge step toward decriminalizing sex work. But the bill still enables criminalization on some level, creating a tier of privileged sex workers that the law favors over others. While the measure was being drafted, members of the Boston chapter of Sex Workers Outreach Project (SWOP-Boston) and Boston-based Massachusetts Sex Worker Ally Network (MASWAN) advised Rep. Khan that this new category, in tandem with existing language used to target sex workers, may have the unintended effect of creating a “perfect victim” class. In the meantime, other sex workers, whom the criminal justice system is likely to label as non-SEIs—people of color, foreign nationals, those with prior records—may be disproportionately harassed and arrested.
The bill could especially benefit outdoor and survival sex workers because it eliminates punishment for “common night walkers [and] common street walkers.” Sara Kollock from SWOP-Boston/MASWAN says that statue is “not only stigmatizing but has an actual concrete effect on the lives of people who work in street-based markets in that they are frequently targeted by police under this statute.”
While the removal of the “common night walkers” clause is a step in the right direction, the bill leaves in the criminalization of “disorderly persons” and “disturbers of the peace,” language known as “public nuisance” laws. With such language in effect, street-based sex workers will still be at risk of criminalization. Kollock notes, “Once convicted, it goes on their record and compounds their vulnerability to the criminal system. Public nuisance laws have the effect of branding sex workers as disturbers of the peace.”
The act relative to exploited adults makes an effort to provide social services to sex workers, but according to advocates, the source of its funding may actually harm sex workers. SEIs are designated as eligible recipients of the Victims of Human Trafficking Trust Fund (VHTTF). However, the VHTTF is subsidized by wealth seized by the state from traffickers and clients of sex workers through arrests and fines. Because the fund is supported by arrests of clients, it ultimately endangers sex workers. The addition of a new category of eligible recipients might even lead to more intense criminalization of clients.
“[The VHTTF] incentivizes seizure of assets from stings which historically and recently have targeted groups of sex workers who haven’t necessarily [been] trafficked in the way we tend to think,” Kollack says. “They are not kidnapped, they are not working without pay. And if they are foreign national sex workers it can be defined as a trafficking sting. Just because foreign nationals [are] selling sex doesn’t mean there is trafficking.”
The amount of money available in the VHTTF appears to be extremely low. We asked Rep. Khan’s office for an exact amount, but did not hear back. The Boston Herald reported that as of May 2017, the VHTTF had yet to award a single grant and had only $16,000 in it, most of which came from a one-time $15,200 deposit from the Worcester DA’s office.
Despite these flaws, these bills represent a heartening first step toward decriminalizing sex work entirely. Summing up their potential impact, Simon stated, “Elimination of ‘common night walkers’ and the decriminalization of sex work by minors is a huge boon.”
“The whole point of the bill is to reduce criminalization,” Kollock says, but she still remains concerned about the impact on marginalized and low-income sex workers. “SWOP-Boston/MASWAN applaud that, and this is a step forward. On the whole the bill should be really beneficial for indoor markets and escorts. But it leaves in place statutes that can be used to criminalize street-based work, and foreign nationals who are often targeted for trafficking in situations where trafficking is not taking place.”
This article was produced by the Shoestring. For more of its coverage of Commonwealth issues, particularly in Western Mass where it is located, check out theshoestring.org.