Sex for Sale~Prostitution, Pornography and the Sex Industry (7 page)

The success of a policy of nonenforcement toward indoor prostitution would require that it be implemented without fanfare. A public announcement that a city had decided to take a “hands off” approach to this variety of sex work might serve as a magnet drawing legions of indoor workers and clients into the locale. But in cities where it is not already standard practice, an unwritten policy of nonenforcement might be a sensible innovation. It would free up resources for the more pressing problems on the street, and might have the effect of pushing at least some streetwalkers indoors, as one official commission reasoned: “Keeping prostitutes off the streets may be aided by tolerating them off the streets.”130

Does the two-track approach favor the higher class, indoor sector and unfairly target the lower echelon streetwalkers? Inherent in any two-track approach are disparate effects on actors associated with each track, and with respect to prostitution there are legitimate grounds for differential treatment: (1) certain other types of commercial enterprise and individual behavior (e.g.,
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nudity, urination, being drunk and disorderly) are prohibited on the streets and (2) “this kind of policy may not be considered too inequitable if the costs inflicted on society by the street prostitutes are greater . . . than from those working in hotels” and other indoor venues.131 The legal principle on which this proposal rests is that the criminal law should not interfere with the conduct of consenting adults, provided that this conduct does not threaten the legally protected interests of others. Whereas street prostitution is associated with a variety of harms to workers and to host communities, indoor prostitution is in accord with the harm-reduction principle.132 As the San Francisco Committee on Crime flatly concluded, “continued criminalization of private, non-visible prostitution cannot be warranted by fear of associated crime, drug abuse, venereal disease, or protection of minors.”133 A Canadian commission agreed: “The concern with the law is not what takes place in private, but the public manifestation of prostitution.”134 And another Canadian task force determined that “the two objectives of harm reduction and violence prevention could most likely occur if prostitution was conducted indoors.”135 The policy implication is clear: “reassign police priorities to those types of prostitution that inflict the greatest costs,” namely, street prostitution.136

Track Two: Restructuring Street Prostitution Control
One advantage of the two-track model is that resources previously devoted to the control of indoor prostitution can be transferred to where they are most needed: the street-level sex trade. Under this model, the central objective of the police and social service agencies would be to (1) protect workers from violence and (2) assist workers to leave the streets. Some British cities such as Liverpool and Manchester have experimented with this strategy, under a formal “multi-agency partnership” approach to street prostitution.137 It is certainly not the norm in the United States, but the policy was adopted in 2008 in New York State with regard to minors caught soliciting on the street.

Under the new law, persons under age 18 arrested for prostitution will be channeled into services and programs (including safe houses, counseling, vocational training, healthcare) instead of being charged with a crime and prosecuted.138 The police still arrest the youths, which seems necessary in order to compel compliance, but those arrested are not stigmatized by prosecution in court and formal punishment. This policy could be extended to adult street prostitutes as well.

This population has special needs because of their manifold, adverse life experiences—including drug addiction, sexual trauma, emotional problems,
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social stigma, arrest records, and health problems.139 In most American cities, resources are scarce for both the homeless and sex-trading populations. For the latter, the dominant approach is overwhelmingly coercive rather than rehabilitative, yet past experience abundantly shows the failure of narrowly punitive intervention. Without assistance from service providers and meaningful alternatives to prostitution there is little opportunity for a career change. In order to reduce the amount of street prostitution, there is a desperate need for a comprehensive program of temporary housing, job training, drug treatment, healthcare, counseling, education, and other services.

A few blue-ribbon panels have recommended changes consistent with the two-track model. Commissions in Atlanta and San Francisco advocated a dual approach for precisely the reasons just described.140 A landmark Canadian commission argued that abating street prostitution would require legislation allowing prostitutes to work somewhere else, and it recommended permitting one or two prostitutes to work out of their own residence,141 a proposal subsequently endorsed by another Canadian taskforce and by a British government commission.142 Indoor work by one or two prostitutes was seen as preferable to work on the streets or in brothels since it gives the workers maximum autonomy and shields them against exploitation by pimps and other managers. The commission also recommended giving provincial authorities the option of legalizing small, nonresidential brothels, subject to appropriate controls. Government officials rejected the recommendations of all three commissions.

The state of Rhode Island is unique in its dual policy toward street and indoor prostitution. State law criminalizes loitering for the purpose of soliciting sex, but loitering occurs outdoors and indoor solicitation per se is not a crime. Police have busted massage parlors for employing workers lacking a massage license, but not for prostitution.143 Bills recently presented in the state legislature to criminalize all prostitution have failed, as a result of lobbying by the ACLU. Rhode Island thus stands alone in the United States in its formal adoption of the two-track policy. Some other nations also embrace the two-track approach—decriminalizing brothels or escort agencies and retaining enforcement against street prostitution. The legislature in Western Australia passed a bill of this nature in 2008.144

In 2007, the Hawaii State Legislature considered a bill that would decriminalize the indoor track and zone street prostitution. The bill stipulates the following:

A person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person for a fee in a public
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place that is likely to be observed by others who would be affronted or alarmed. For purposes of this section, a “public place” means any street, sidewalk, bridge, alley or alleyway, plaza, driveway, parking lot, or transportation facility, or the doorways and entrance ways to any building that fronts on any of these places, or a motor vehicle in or on any such place except areas that are designated as exceptions to this section. . . . The legislature and counties shall designate areas within their jurisdiction as exempt from the penalty provisions. . . . Designated areas shall include portions of geographic areas that have a history of this offense. The designated areas may be described both by geographic boundaries and by time of day limitations.145

The first part of the bill decriminalizes indoor prostitution, and the second part limits street prostitution to certain areas. The latter therefore departs from the two-track policy because it does not provide resources to help street workers get off the streets. The bill was supported by the ACLU, but it failed to pass in the legislature. One of the sponsors of the bill, Rep. Bob Herkes, saw the bill as a strategic stepping stone: “It’s one of those bills you do it for public dialogue instead of trying to get it passed,” and the bill’s advocates hope to gain support for a similar bill in the future.146

Cracking Down on Clients

A major shift in enforcement policy over the past 15 years has been the targeting of prostitutes’ customers. Traditionally, the act of patronizing a prostitute was not a crime in the United States, but it is now criminalized in all 50 states. In most areas, however, law enforcement falls most heavily on the prostitute. In 2002, for example, only 9% of all prostitution-related arrests in Phoenix were of men, 12% in Boston, and 14% in Las Vegas.147 However, some cities specifically target the customers. In 2002, men accounted for 61%

of all prostitution-related arrests in Kansas City, 72% in Detroit, and 75% in San Francisco.148

Customers are targeted in different ways. Police decoys walk the streets and make arrests when they are solicited. Public humiliation is another common approach, and it can be used after an arrest, as an added sanction, or instead of an arrest. One common tactic is publishing the names of alleged clients in local newspapers or on television. Kansas City created “John TV”—

a weekly cable TV show displaying the names, addresses, and pictures of men arrested for attempting to solicit a prostitute.149 Kansas City activists also created a “hooker hotline,” a recorded list of the names of persons arrested for soliciting a prostitute. The hotline received several hundred calls every month.

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In New Haven, Connecticut, posters naming a “John of the Week” were stapled to trees and telephone polls in one prostitution stroll. Posters provided the name and address of men observed soliciting a prostitute, with the warning, “Johns! Stay out of our neighborhood or your name will be here next week.”150 In Miami, freeway billboards have been used to announce the names of convicted johns. Americans are divided on the idea of shaming johns in these ways. A 1995 poll found that 50% of the public endorsed punishing men convicted of soliciting prostitutes by placing their names and pictures in the news.151 At least 280 American cities are using some kind of shaming tactic against johns.152

A second tactic is a novel form of rehabilitation—the “john school” for arrested customers. San Francisco launched its First Offenders Prostitution Program in 1995, and between 1995 and early 2008, more than 5700 men had attended the program.153 As of 2008, 39 other cities in America (as well as cities in Canada and Britain) have created similar schools. The programs are a joint effort by the district attorney’s office, the police department, the public health department, community leaders, and former prostitutes. The men avoid an arrest record and court appearance by paying a $1000 fee, attending the school, and not recidivating for 1 year after the arrest.

Every aspect of the 8-hour course is designed to
shame
,
educate
, and
deter
the men from future contact with prostitutes. The content and tone of the lectures are designed for maximum shock value. During my observations at the San Francisco school, the men were frequently asked how they would feel if their mothers, wives, or daughters were “prostituted,” and why they were

“using” and “violating” prostitutes by patronizing them. The audience was also exposed to a graphic slideshow on the dangers of sexually transmitted diseases, horror stories about the wretched lives of prostitutes and their oppression by pimps, and information about the harmful effects of street prostitution on the host neighborhoods. My review of responses to a questionnaire completed by the men at the end of the day found that many seem to experience “consciousness raising” about the negative aspects of street prostitution and pledge to never again contact a prostitute, but others expressed cynicism or resentment at getting caught, at having to take the class, at being “talked down to” by the lecturers, and being otherwise demeaned. Some men insisted that they were innocent victims of police entrapment.

The growing targeting of customers in the U.S. is part of a larger, international trend toward criminalizing clients. The focus of antiprostitution groups has increasingly been one of ending “the demand” for paid sex. In 1999, Sweden passed a law exclusively punishing the customers of prostitutes,
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based on the assumption that they are the root of all evil in the sex industry.

Since then, some other nations have either adopted or are considering adopting the Swedish system.

Policy changes are often driven by activists who hold a narrow view of sex work. Over the past 30 years, prohibitionists and liberals have been locked in battle, two sides that have clashing views regarding prostitution, pornography, and other sex work, and over government policies in this sphere.

Prohibitionists adopt the oppression paradigm described earlier in the chapter, and actively promote it when they lobby public officials or appear in the media. Conservative prohibitionists are disturbed by the danger sex work poses to the family and moral fabric of society. Feminist prohibitionists denounce all sex work as the ultimate expression of gender oppression, violence against women, or “sexual slavery.” The other, liberal side argues that commercial sex services are legitimate or valuable occupations, that pornography is protected under the Constitution (the right to free speech), or that prohibition only drives the sex trade underground and exposes workers to greater harms. This side tends to favor legalization or decriminalization as policies best suited to harm reduction for prostitutes. These are fundamentally different paradigms, turning on different images of the workers involved:
sex
objects
vs.
sex workers
, quintessential
victims
of male domination vs.
agents
who actively construct their work lives. These are not abstract debates. Quite the contrary. A sex war is raging in the public square in many nations around the world, reflected in growing media attention and political debates in Australia, Britain, South Africa, and the United States—to name just a few. Theoretical perspectives have real-world consequences insofar as they are used by policymakers as a basis for new laws or new enforcement tools. As indicated earlier, over the past decade, some nations, such as the United States, have embraced the oppression paradigm and increased penalties and enforcement against those involved in sex work. Some other nations have legalized prostitution and some of these states have explicitly embraced the polymorphous perspective by treating street and (all or certain types of) indoor prostitution quite differently.154