Getting Screwed: Sex Workers and the Law

by Alison Bass

  Joy Smith, the conservative MP (member of Parliament) who cosponsored the new legislation, says the law is designed to curb the demand for commercial sex by criminalizing buyers and penalizing pimps and traffickers. “I’m against criminalizing the prostitutes,” she said in a July 2014 phone interview. “This bill recognizes that prostitution is an unsafe and violent thing, and it requires that $20 million be put in place to help with exit services.”

  Smith contended that more than 98 percent of Canadians involved in prostitution are victims and only 1 percent are doing it by choice. However, a number of Canadian studies contradict her claim and suggest that, for many sex workers, the decision to do sex work is a rational economic decision.17 Many of these women choose sex work over minimum-wage jobs in the service sector and see themselves not as victims but as entrepreneurs.

  In our interview, Smith also claimed that the majority of Canadian prostitutes begin sex work when they are underage. Her assertion is undercut by several studies showing that the average age of entry among both street and indoor prostitutes in British Columbia is between eighteen and twenty-two.18

  Smith is certain the new legislation will withstand a court challenge. Some researchers and sex worker advocates, however, say it simply reproduces all the safety and security problems for sex workers that caused the Supreme Court to strike down the previous laws. And the ban on the purchase of sex will violate Canada’s Charter of Rights and Freedoms in a completely new way as well. “Section 15 of the charter guarantees equality, but when you have two consenting adults involved in a sexual transaction in which only one of them will be penalized, you have a classic case of inequality and discrimination,” Lowman says.

  Advocates for sex workers agree that the new law will simply force sex workers from the relative safety of their homes or brothels into spaces that are less safe. “They will go where the clients are, but because they are being criminalized, the clients will want to be less visible. So sex workers will be forced into those clandestine, in-the-shadow spaces where sex work is less safe,” says Jenn Clamen, thirty-eight, a community mobilizer for Stella, a Montreal-based sex worker advocacy group run for and by sex workers. Clamen, a longtime advocate for sex workers’ rights, also teaches part-time at the Simone de Beauvoir Institute, a college of Concordia University that studies feminism and issues of social justice. Clamen says the new law will inevitably expose Canada’s sex workers to more violence. “It means they will have to deal with the same kind of thing that was demonstrated with the Pickton [murders],” she says.

  Alan Young agrees. “By criminalizing the purchase of sex, the government will make it impossible for sex workers to move indoors. Johns are not going to go indoors and be sitting ducks for law enforcement. They’re going to circle around with their cars in the dark,” he says. “So the new law will create more problems, more violence, and result in the one outcome that not one Canadian wants, which is a burgeoning street prostitution problem.”

  Advocates say the conservative government is deluded if it thinks that prostitution can be eradicated by criminalizing buyers; this didn’t work in Sweden and it won’t work in Canada. “Women decide to work in the sex industry for a variety of reasons, whether it is to pay their bills, support their children, get an education, or support their drug habit,” Clamen says. “These women will continue to work in the industry, but they will be more likely to be involved in unsafe situations.” The new legislation ignores all the reasons why women and men work in the sex industry, she says. “If they were really concerned about prostitution, the government should be targeting issues like poverty, lack of education, drug use,” Clamen says. “But the new law doesn’t do any of that.”

  Clamen says Canada’s sex worker community is disheartened by the new legislation but determined to fight it. At some point, someone will challenge the constitutionality of the new law in court, she says, and Canada’s disparate sex work community will band together to support that challenge.

  “People are very disheartened, and it’s just going to have to be that way,” Clamen says. “Keep in mind the Bedford case was a seven-year process. So we will have to go through that all over again or wait until a government with a more human rights approach comes into office and starts addressing the real issues. You can’t just force people to get out of the sex industry, just like you can’t force them to stop taking drugs.”

  California

  EPICENTER OF THE SEX WORKERS’ RIGHTS MOVEMENT

  Maxine Doogan doesn’t really want to be on the stage of this arid, windowless ballroom at 8 p.m., taking part in a panel on trafficking. For most of the day, the San Francisco sex worker has been on the phone in her Las Vegas hotel room with defense attorneys from around the country, helping them prepare motions to dismiss charges against the sex workers they represent. The San Francisco labor rights organization that Doogan founded, the Erotic Service Provider Legal, Educational and Research (ESPLER) Project, has developed a standard motion to dismiss charges, and attorneys are always calling her for help in fine-tuning it. Maxine, who works as a dominatrix, also spent part of the afternoon partying with a client, a younger man who had called after seeing her online ad. So by this hour, Doogan, a divorced mother of three in her fifties, is ready to call it a day. But because she agreed at the last minute to organize the trafficking panel for the Desiree Alliance conference, here she is, scheduled to speak last in the panel’s four-person lineup.

  Perusing the crowd from her perch on the stage, Doogan has to admit she’s more than a little surprised that so many people have shown up at this hour — as many as forty women and men are clumped around tables strategically spaced to fill the cavernous room. It’s the third day of the conference, and the collective energy is starting to ebb. Making matters worse, in less than an hour, conference organizers will kick off a demonstration on Las Vegas’s tourist-packed Strip to protest the recent murder of two sex workers. Doogan seriously doubts anyone will stick around long enough to hear her speak.

  To her relief, the first three people on the panel don’t talk long. The first speaker, a staff attorney with the Sex Workers Project of the Urban Justice Center, has just come from presenting research on how bad-client lists can be a useful safety tool for sex workers, and she seems tired and somewhat scattered as she throws out a few facts about the negative impact of trafficking laws in New York state. The audience perks up a bit for the next speaker, if only because she is holding a tiny shih tzu in her arms. Emi Koyama is a transsexual sex worker and activist from Portland, Oregon, and she talks about how the wave of new antitrafficking laws are making it harder to help teenage runaways and homeless youth obtain the services they need.

  “The human trafficking task force is under the gang unit at the FBI. They believe it is Mexican drug cartels that are trying to import young people into the U.S. to sell them. And that’s not true,” Koyama says, and the little dog in her arms squirms at the frustration in her voice. “The antitrafficking movement calls for criminalization; it doesn’t call for more complete responses that deal with the factors that cause runaways and youth homelessness.”

  Finally, it is Doogan’s turn, and before any more people can drift away, she leans forward and starts speaking in a firm, no-nonsense voice that carries to the farthest table in the room. “I’m a prostitute of twenty-two years, and I expect to be working for twenty-two more years,” she says, and the audience erupts in applause. At last, someone with some energy.

  Doogan, who wears her blonde farm-girl hair in a midlength bob, goes on to explain that she and the ESPLER Project worked hard to defeat the latest antitrafficking statute in California, the CASE (Californians against Sexual Exploitation) Act, also known as Proposition 35. The ballot measure was designed to increase the criminal penalties for sex trafficking, but many advocates believe it will only harm the people it is intended to help (that is, prostitutes). The measure, opposed by the American Civil Liberties Union and even a few antitrafficking groups, imposes heftier fines
and prison sentences for anyone convicted of sex trafficking. The CASE Act also expands the definition of traffickers to include sex workers who may be working together for safety and psychological support, according to a report prepared by the San Francisco Human Rights Commission. For example, two sex workers who band together to provide referrals to each other for reliable clients could be viewed as encouraging each other to prostitute and thus be prosecuted for a crime. The CASE Act, the report concluded, creates a disincentive for collaboration and makes sex workers more likely to be exploited by a pimp.1

  Doogan informs her audience that since the passage of the CASE Act in 2012, it has been employed mostly to punish and harass prostitutes. “One of our members was traveling for work, and she was the target of a sting operation of the antitrafficking task force,” Doogan says, her voice rising in anger. “She was a thirty-nine-year-old woman in a hotel room with a naked client who turned out to be an FBI agent. She was arrested for prostitution and put in handcuffs for three hours. The antitrafficking people spoke to her as if she was a twelve-year-old girl who had been forced into trafficking. She obviously wasn’t, but if she had been a real victim, this is how she would have been treated. They are violating people’s human rights under the guise of antitrafficking.”

  Doogan tells a few more horror stories about the effects of antitrafficking laws in California and throughout the United States, and then she delivers her denouement. “Our solution is to decriminalize prostitution. We are bringing a federal court case against district attorneys, alleging that antitrafficking laws are violating our civil rights, the right to free speech and the right to privacy,” Doogan says. “We have plaintiffs, and we’re raising money to file the suit. We need your help. So when I email you, I want you to respond to me, even if it’s only to say, ‘Fuck you, Maxine.’ But I want you to respond. With everyone in this room working together, we can get this thing done. We will get it done.” When Doogan stops to catch her breath, the audience erupts into wild applause.

  If the crowd’s reaction is any guide, Doogan has just picked up the mantle laid down by earlier charismatic leaders of the sex workers’ rights movement, such as Margo St. James. In fact, Doogan and the ESPLER Project are really only the latest incarnation of what many people have known for a long time: California is the epicenter of the sex workers’ rights movement, and if prostitution is going to be decriminalized, it will be decriminalized first in California and specifically in San Francisco, the golden gate to all things possible.

  San Francisco, after all, was the first city in the nation to assemble an official task force on prostitution, in the 1990s, to examine its municipal laws against prostitution. The thirty-person task force included Margo St. James, recently returned from her sojourns in Europe (where she worked with sex workers’ rights groups in France, Belgium, and the Netherlands). St. James says she came back to the States to marry Paul Avery, a San Francisco Bay area reporter best known for his coverage of the Zodiac killer, the infamous serial killer who stalked San Francisco in the 1970s. St. James had known Avery since the ’60s, when the then-married reporter would wander into Pierre’s bar, where she worked. Avery finally proposed to St. James on a visit to the south of France in the mid-’80s. “I was driving him back to the train, and he said, ‘I’m not going to bug you about getting married,’ and I said, ‘Okay, I’ll do it,’ ” St. James recalls. “We were married in 1992 in my favorite café, Malvena’s in North Beach.”

  In 1996, the task force, which included other sex worker advocates, city officials, and representatives from San Francisco’s neighborhoods, issued an in-depth report on prostitution in the Bay area. The task force unanimously recommended that the city stop enforcing and prosecuting prostitution laws and instead redirect the estimated $7.6 million it spent annually on the enforcement of those laws toward services for needy constituencies. (As examples of programs that should be more fully funded, the task force cited services for battered women, the homeless, youth runaways, and immigrants.) The task force also recommended that instead of arresting streetwalkers, city officials use existing municipal codes against littering, noise, and trespassing to resolve the quality-of-life problems that neighborhood residents often blamed on street prostitution. Its report noted that despite the millions of dollars spent every year on enforcing antiprostitution laws, these quality-of-life problems had not been ameliorated. Nor had prostitution in San Francisco decreased over time.

  In 1996, largely to draw attention to the task force’s recommendations, Margo St. James ran for a supervisor’s seat on the six-person San Francisco Board of Supervisors. She came in seventh, barely out of the running, and when one of the supervisors stepped down a month later, she applied for the vacant seat. But Willy Brown, the city’s mayor at the time, refused to appoint her to the board and instead chose a wealthy and well-connected young man by the name of Gavin Newsom,2 who would go on to become the city’s mayor in 2003 and the state’s lieutenant governor in 2010. In 1998, St. James filed to run again, this time for assessor, and as she tells it, Brown was so worried that she would win that in exchange for her not running, he agreed to provide Department of Public Health funding for the St. James Infirmary, the new health clinic she had recently founded for sex workers in San Francisco. (The St. James Infirmary continues to provide free HIV testing and other health services for sex workers in partnership with the city’s public health department.)

  “Willy didn’t want me to have a seat because he couldn’t control me,” St. James said in a phone interview. “By that time, my crime reporter husband Paul Avery was sick, and I brought him to Orcas Island,” a ferry ride from Bellingham, Washington, where her family had a cottage. (Avery, a longtime smoker, died of emphysema in 2000.)

  Despite Margo St. James’s considerable popularity, city officials never did act on the task force’s recommendations to decriminalize prostitution. In 2004, activists in Berkeley brought a measure to the ballot calling for decriminalization there, but only 36 percent of Berkeley residents voted for it. A similar measure made it onto the ballot in San Francisco in 2008, and that one did better (41 percent of the city’s residents voted for decriminalization), but it also failed.

  Six years later, I caught up with one of the lead writers on the original San Francisco Task Force on Prostitution: Carol Leigh, a longtime sex worker, poet, writer, and aspiring actress who had coined the term sex work. In 2002, Leigh published a collection of her essays and poems, titled The Unrepentant Whore and adorned with a voluptuous cover shot of Leigh splayed naked on a bed of rose petals. Since then, she has reinvented herself as a videographer and now makes her living as a video producer and IT guru for several sex education and erotic websites. She is mostly retired from sex work. “I’m sixty-three,” she says laughing. “I might need to go back to it, but it’s been awhile.”

  Leigh believes that implementing change at the ballot box would be an uphill battle right now, given the current frenzy over trafficking. Police departments and nonprofit groups in California and throughout the United States that receive funding from the federal antitrafficking task forces have kept up a drumbeat of publicity about the problem of sex trafficking and their efforts to fight it. In the process, much of the American public has become convinced that prostitution is intrinsically linked with exploitation. “There’s so much bad publicity about prostitution in the context of antitrafficking,” Leigh says. “So much damage has been done.”

  When I spoke to her by phone, Leigh had just released the trailer for a short film that she made showing how antitrafficking laws are leading to the deportation of immigrants and the violation of sex workers’ rights. Instead of being treated as victims and given the services they need, many prostitutes around the world, both adults and minors, are being arrested, charged with trafficking, and if they are illegal immigrants, deported. A twenty-minute version of the movie, called Collateral Damage, has been screened in Japan, Austria, Denmark, Germany and India, and Leigh is still working on turning it i
nto a feature-length film.

  In a phone interview around the same time, Maxine Doogan spelled out a less obvious form of collateral damage from the antitrafficking movement. The new fines imposed by Proposition 35 on people arrested for trafficking (which can total up to $1 million per case) are slated to be administered by the California Emergency Management Agency, which is supposed to disperse the money to police, prosecutors, and nonprofit groups that work with trafficking victims. Although a system to keep track of and disperse these monies has yet to be set up, sex worker advocates fear that the hefty new fines might create an incentive for law enforcement to inflate trafficking statistics and make the problem look worse than it really is — in order to keep the money flowing in. “We call this profiting from the criminalization of prostitution,” Doogan says.

  The report by the San Francisco Human Rights Commission, a city-funded group that examines local human rights issues, raised similar concerns. That draft report noted that the way the measure’s fines are being dispersed might create an incentive for law enforcement to focus on sex trafficking and ignore other types of labor trafficking, which are actually more common in California and everywhere else. According to a 2012 International Labor Organization study, labor trafficking constitutes 68 percent of trafficking, whereas forced sexual exploitation constitutes 22 percent of the 90 percent of forced labor situations that occur in the private economy. But since Proposition 35 imposes stricter penalties and much higher fines on convicted sex traffickers than on labor traffickers, it may be detrimental to the “victims of labor trafficking, as they can potentially be ignored or given less attention,” the commission concluded in its report.3