Getting Screwed: Sex Workers and the Law

by Alison Bass

  Julie spent the next three months in a cell on Rikers Island, wondering if she was going to survive. She says she saw some “pretty horrible things,” such as inmates having sex with the correctional officers and unwarranted violence. “I saw a captain kick a girl because she wouldn’t have sex with him,” she says.

  A friend of Julie’s snuck her some opioid pills in a makeup container, and the knowledge that she could swallow them was the only thing that kept Julie sane. “I knew I could check out if I had to,” she says.

  Finally, in late May, the District Attorney’s Office offered Julie a plea bargain. If she would plead guilty to one count of promoting prostitution, they would dismiss the other fifty-five charges. She agreed, and on July 27, she was sentenced to two and a half to five years in prison, including time served. (Although she was convicted only of a misdemeanor, because she had been convicted of an earlier drug charge, the state was able to ramp up her prison time.) The Daily News headline screamed, “Madam on Hook for 5 Yrs.” The story went on to say, “In addition to prison time, Moya was ordered to forfeit her Freeport, L.I. [Long Island], home, two cars, a boat and all the money in her bank account, which attorneys say is down to $3,500.”2

  Julie Moya, ironically, is one of very few sex workers in the United States who has done significant time. Like Heidi Fleiss, the Hollywood madam who gained notoriety in the 1990s for her celebrity clientele, Julie ended up doing prison time because she refused to divulge client names. (Fleiss’s original conviction for prostitution was overturned by an appeals court in 1996, but she eventually served twenty months of a seven-year federal sentence for tax evasion.)

  What happened to Julie Moya and Heidi Fleiss is highly unusual. The overwhelming majority of sex workers who have been arrested in recent years are not held for prosecution or convicted; most are released within hours after their arrest, research shows. (Cook County, Illinois, is a notable exception to this rule, because in recent years its police department has hewed to a strict interpretation of an old law, allowing a repeat prostitution misdemeanor to be upgraded to a felony, which often carries jail time.)

  The most comprehensive study on the efficacy of U.S. prostitution laws was done by Julie Pearl, a graduate student at the University of California’s Hastings College of the Law in San Francisco. Pearl compiled crime data from the FBI Uniform Crime Reports and the Bureau of Justice between 1985 and 1987 and then conducted extensive interviews with police officials in twenty of the twenty-two U.S. cities with populations greater than 300,000. She found that approximately 80 percent of those arrested for prostitution were not held for prosecution, and only half of those held were found guilty as charged. That essentially means that 90 percent of arrested prostitutes escaped judicial sanction, Pearl concluded in her study, published in the Hastings Law Journal in April 1987.3

  A decade later, the San Francisco Task Force on Prostitution, which also examined local criminal justice records, found much the same thing: the vast majority of arrests made in that city in 1994 were never prosecuted. After spending several hours in jail, the women, mostly streetwalkers, were typically dismissed. They would immediately catch a cab back to the strip to try and make up for their lost earnings. Yet that didn’t stop police from doing repeated sweeps. In her field study of San Francisco streetwalkers in 1995, Bernstein found that the same streetwalker “might go to jail as often as four times a week,” particularly if she was on the stroll in the city’s fashionable shopping and tourism district.4

  A similar pattern holds true today in many large cities. Of a total of 3,645 arrests for prostitution-related offenses in New York City in 2013, only 403, or 11 percent, resulted in charges with served time, according to the New York State Division of Criminal Justice Statistics.5

  Arrest statistics in San Francisco and New York also reveal larger societal biases at work. Nationwide, female sex workers are arrested four times as often as male sex workers and are much more likely to be subject to prosecution, despite evidence suggesting that there are roughly as many male as female sex workers.6 Arrest patterns also reflect an inherent racist bias on the part of law enforcement. Although women of color constitute 40 percent of streetwalkers, they make up 55 percent of those arrested and 85 percent of those incarcerated, according to one 1993 study.7 Consider New York City for a more recent example. Even though whites make up 47 percent of the city’s population, blacks 13 percent, and Hispanics 26 percent, police in 2013 arrested 1,567 blacks and 1,007 Hispanics for prostitution-related charges, as compared with only 397 whites.8 A 2014 study found that nearly 70 percent of defendants facing prostitution charges in Brooklyn are black, and 94 percent of those arrested for loitering are black.9

  The U.S. criminal justice system’s strikingly uneven enforcement of prostitution laws may also have something to do with the laws themselves. While there is a federal law prohibiting the interstate movement of people for the purpose of prostitution — the Mann Act — the legal status of prostitution is largely determined on the state level, and states have different laws governing the sex industry and they enforce them differently.

  While certain forms of sex work, such as child pornography, pimping, pandering (procuring a prostitute for someone else), and exchanging sexual acts for pay, are prohibited in most states, other types of commercial sex, such as phone sex, stripping, erotic dancing, and adult pornography, are permitted (and regulated to some degree.) In California and many other states, the pimping law prohibits people from living off the earnings of a prostitute, essentially criminalizing all domestic partners of sex workers, including roommates.

  While most states consider the act of selling sex a misdemeanor, in several states (such as Illinois), repeat prostitution misdemeanors are often upgraded to felonies. Promoting prostitution in the second degree (compelling someone by force or intimidation to engage in prostitution) is also a felony, as are trafficking and profiting from underage prostitution. Many states, including New York, New Jersey, California, Colorado, and the District of Columbia, also regulate prostitution through vagrancy and loitering statutes, which chiefly target streetwalkers.

  In many states, police are allowed to use condoms as evidence of prostitution. Service organizations have long opposed that policy on the grounds that it discourages sex workers from practicing safe sex. In 2012, the group Human Rights Watch interviewed 197 sex workers in New York, Washington, D.C., Los Angeles, and San Francisco and found that many limited the number of condoms they carried because they feared being arrested by police.10 “Because of this policy, people are afraid of carrying condoms around,” says Cyndee Clay, executive director of HIPS (Helping Individual Prostitutes Survive), the nonprofit organization that does outreach to streetwalkers in Washington, D.C. “So workers are at greater risk of their health. If you can’t make a case with or without a condom, I question whether you can make a case at all. Is the impact on public health worth it?”

  In May 2014, advocates for the Urban Justice Center, a nonprofit organization that provides legal services to marginalized populations in New York, were finally able to convince New York City police and prosecutors not to use condoms as evidence in building cases against persons charged with prostitution and loitering. However, condoms can still be used as evidence against johns and in charges of facilitating prostitution. “Many of our clients are arrested for that because they work with other sex workers or share space,” said Sienna Baskin, codirector of the Sex Workers Project for the Urban Justice Center, in a June 2014 interview. “So we’re pushing for something more comprehensive. We have a state bill we’re trying to get passed.”

  The states also define illegal sexual activity in starkly different ways. For instance, North Carolina requires sexual intercourse for the definition, while other states include fellatio, assisted masturbation, and any physical contact of the genital areas, buttocks, and breasts as sexual activity for the purposes of prostitution.11

  State laws also differ on when police can make a binding arrest. Some state
s require that sexual activity or contact actually take place, while in most states, including New York and Massachusetts, the mere offer or agreement to perform acts is sufficient. Some states also require proof of compensation in addition to the agreement to sell sex, but most do not.12 Jillian, the Jewish escort from western Massachusetts, was arrested minutes after she accepted some cash and verbally agreed to give an undercover police informant a blow job in a Springfield motel.

  For Jillian, that sultry August day in 2004 had begun auspiciously enough. Before she met with two scheduled clients, Jillian and Jack, her lover, security guard, and driver, stopped by a friend’s house to shoot up. Jillian, then twenty-three, was a heroin user, “a junkie ho,” as she sardonically described herself in her blog.

  That afternoon, Jillian remembers flying down Interstate 91 on the way to her first assignation, Jack at the wheel, both of them high and singing along to oldies on the radio. Her first assignation is with a new client who has seen her ad in the local weekly, the Valley Advocate, and wants a half-hour with her. But when Jillian and Jack pull into the parking lot of the River Inn in West Springfield, something doesn’t feel right. The two-story motel looks seedy; Jack mentions that he used to bag dope in a room here. Oh, Jillian thinks, that kind of place. She gets out of the car and notices that someone is watching her from the balcony. Alarm bells go off, but she ignores them. It’s just her paranoia, she thinks. The caller said he would pay $150 for a half-hour, and she needs the bucks. When she started doing heroin, the other call girls were angry with her. She was giving them a bad name, they said; they wanted her to be this wholesome all-American girl who just happened to have sex for money. They saw her as a smart, articulate activist who could speak for them all. She is all of that, she knows. But right now, she’s coming off a heroin high and she needs some quick cold cash.

  Inside, she is greeted by a skinny, sloppily dressed black man who starts asking her questions, the kind of what-do-I-get-for-this questions that an undercover cop would ask in an effort to get a hooker to admit she is being paid for sex. But the guy’s eyes are red-rimmed, and he seems too jumpy and drug-addled to be a cop. At first, Jillian answers his insistent queries with her usual response: “I can’t answer that question for obvious reasons, but I think if you call a service like this you know what it’s about. . . .” But he keeps nattering on. “Will I get a blow job, will I?” Jillian doesn’t like his tone, so she starts walking toward the door, and the man suddenly changes tactics. “Whoa, whoa, you’re getting frustrated.” He hands her $160, which she takes. Mistake number one. “I got to go get you change,” she says and starts walking back to the car. But then she remembers, we don’t keep change in the car, so she goes back into the room. The man asks her again, “Will I get a blow job?” and in exasperation, she growls under her teeth, “Yes, you will get a blow job.”

  He asks her to take off her clothes, which she does, slowly, seductively, draping her heart-patterned dress over a chair. Then, he tells her to turn around and show him her ass, and at that moment, two detectives walk in and flash their badges. Stunned, Jillian looks at her Judas client, who simply shrugs, as if to say, “Who me?”

  The cops tell her to dress, and as soon as she does, they cuff her and lead her out the door, commenting on the track marks on her arms. Jillian wishes she had thought to slather foundation on her arms, which she usually does before going on a call. And then it dawns on her: her heroin habit has gotten the best of her. If she hadn’t been so high and greedy to make more dough, she might have seen and heeded the warning signs. Shoulda, woulda, coulda. She is furious with herself and with the cops, especially the one who has radioed in, “We think she just used.”

  The police, she knows, couldn’t care less that she first started shooting up two years ago for fun. It was a social activity, and it had nothing to do with being an escort. But then her boyfriend, Peter, broke up with her — for the last time — and her best friends blew town. Jillian felt abandoned, and she started shooting up every day, to forget the pain, forget Peter and her loneliness. Before long she was hooked. And this is where her addiction has landed her, handcuffed and defenseless in a stinking motel room, flanked by smirking cops.

  Outside, several other cops have surrounded Jack, who is still sitting in the car, his window down. They put a gun to his head, and he tells them to put it down before they hurt somebody. They bark at him to get out of the car, keep his hands up, he’s under arrest. “What for?” he asks. “Oh you know,” one cop replies.

  Jillian can’t hear the rest because she is shoved into the police cruiser, where her two guards start asking questions. Jillian tells them she won’t talk until she sees a lawyer. But as they drive off, she can’t resist one little dig. “Wow,” she says, “it must feel so productive arresting people for nonviolent crimes. Right now, someone could actually be getting hurt.” The cop in the passenger’s seat turns around and snaps, “You asked for a lawyer to be present, so just shut up.”

  Jillian keeps her mouth closed for the rest of the ride, but having read a shelf-load of books on sex work, she knows she has statistics on her side. And she does, to a large extent. Research shows that U.S. laws criminalizing prostitution are counterproductive and a huge waste of resources. In her study, Julie Pearl found that each of the cities she surveyed in 1985 spent an average of $7.5 million enforcing prostitution laws, more than some of these cities, such as Los Angeles, Dallas, Phoenix, and San Diego, spent on municipally funded health services the same year. Half the city governments studied spent more on prostitution control than on either education or public welfare.13 In 1985 alone, sixteen of America’s largest cities spent more than $120 million on prostitution arrests.14 That translated into an average of almost $2,000 ($1,989) to bust just one sex worker, Pearl found.15

  Over the last three decades, from 1980 to 2012 (the most recent numbers available online are for 2012), total prostitution arrests in the United States have fluctuated widely, reaching a high of 111,400 in 1990 and dropping to a low of 55,374 in 1999. In 2000, total arrests shot up again, to 87,620 (largely in response to the federal antitrafficking law passed that year), but by 2012, they were back down again, to 56,575, according to the federal Bureau of Justice Statistics. If you multiply 56,575 arrests by $2,000, the total amounts to more than $113 million in taxpayer money spent each year on arresting prostitutes, most of whom are never prosecuted.

  Pearl also discovered that law enforcement agencies in America’s largest cities spend more time and resources arresting prostitutes than they do pursuing and solving violent crimes. On average, she found, police in these cities made as many arrests for prostitution as they did for all violent offenses combined. In 1986, police in Boston, Cleveland, and Houston arrested twice as many people for prostitution as they did for all homicides, rapes, robberies, and assaults combined. In Dallas, residents and visitors reported over 15,000 violent crimes in 1985, only 2,665 of which resulted in arrest. The same year, Dallas police made 7,280 prostitution arrests, which cost local taxpayers over $10 million.16

  Police in these cities spend most of their time indoors trying to entrap sex workers like Jillian and Joi Love. For example, vice officers typically spent thirty to forty minutes in massage parlors before making an arrest, Pearl found. Yet such efforts provide no additional protection for the public.17

  Indeed, dozens of researchers in recent years have criticized enforcement of prostitution laws on the grounds that it diverts the attention of law enforcement agencies from more serious crimes. Most police officers who arrest streetwalkers are not out there patrolling for other types of crime. As Pearl found in her interviews with law enforcement in the nation’s largest cities, undercover vice officers who make most of the prostitution arrests “have neither the time nor responsibility to search for and arrest perpetrators of violent and property crimes.”18

  And that remains true today. Melvin Scott, the commander of the Narcotics and Special Investigations Division of the Metropolitan Police Dep
artment in Washington, D.C., says the members of his vice squad focus on arresting prostitutes and traffickers, not other kinds of criminals.

  HIPS’s Cyndee Clay says that arresting sex workers does not help them get out of prostitution or improve the communities in which they stroll. “It’s a massive waste of resources,” Clay says. “If we weren’t spending this much money on law enforcement, we could spend more resources to help people get to the point where sex work becomes a choice, one of many options, as opposed to an economic necessity.”

  Many researchers agree that refocusing law enforcement efforts on violent crime, property theft, and underage prostitution would be a much more effective use of taxpayer dollars. Ronald Weitzer, the George Washington University sociologist and longtime scholar of the sex industry, notes that the United States has been arresting sex workers and clients for decades, yet prostitution continues to flourish. Indeed, it is on the rise in the United States, as it is globally. In an essay he wrote for the Annual Review of Sociology in 2009, Weitzer argues that it is time to recognize that law enforcement is not an effective solution to what is essentially a socioeconomic problem.19 As he and others note, criminalization is a failed strategy that clearly harms sex workers and lets violent predators off the hook.

  “What we’re doing is fueling a law enforcement machine,” Clay agrees. “I would rather use that money stopping violent crime and arresting people who actually hurt others.” Clay says the same holds true for arrests of clients, known in the trade as johns. When police spend a lot of time setting up stings to arrest johns in hotels, brothels, or even on the street, she notes, they are usually “arresting regulars who are not violent and have good jobs.” HIPS, she says, compiles a list of clients reported by street workers to be violent, and the organization shares that information with other sex workers. “If sex workers were able to talk to police, we could get violent people off the street,” she says. “That’s where our resources should be going, not toward arresting adults involved in consensual sex.”