Sex is considered by many to be uniquely private—but that aura of privacy can unintentionally foster misinformation and fear in the absence of facts and evidence-based arguments. Many (but not all!) Americans would say that their government has little business regulating the private intimate relations of consenting adults. But what about when sex combines with labor—a well-defined focus of law and policy? Squeamishness around sex has translated into a shortage of well-informed public conversations and sensible research-based policies about sex work. Before we can create sensible policies that prioritize individual safety and public health, we must dispel myths about sex workers and untangle poorly constructed laws that criminalize laborers at the expense of their safety.
What is Sex Work and Who are Sex Workers?
When asked to define “sex worker,” many think of a woman who performs sexual services for a male client. This leaves out important realities—facts about the diverse gender and orientations of people who perform and pay for sexual services, about the economic circumstances under which such labor is performed, and even about the types of labor that qualify as sex work in this digital age. All kinds of people, from a wide variety of social classes, races, genders and walks of life, sell sexual services. For example, found nearly 5% worked in the sex industry. Some consider sex work as their primary occupation; others spend some part of their lives doing sex work and others in different occupations; and still others do sex work to supplement other work. Sex work not only entails providing sexual services; it can also include performances (like recordings or live shows or interactions on the internet) or selling items (like photos or clothing.) Most fundamentally, the traditional images of women allowing their bodies to be acted upon sexually by men are misleading and too narrow a frame upon which to build law and policy.
One of the most pernicious myths about sex work is that most sex workers are victims of human trafficking because no one would ever voluntarily choose this type of labor. Research findings are actually quite clear: The vast majority of people involved in the sex trade are working by choice or because they must earn a living and find this preferable to other options for supporting themselves and their families. Sex work by force, coercion, or trafficking is rare.
Effects of Criminalization on Sex Work
Influenced by public misunderstandings and discomfort, policymakers often approach sex work through a frame of criminality. The direct sale of sex is illegal in every U.S. state except Nevada, where I teach and where I have conducted qualitative and quantitative research. In Nevada, permissible forms of sex work are heavily regulated and relegated to certain counties. Nationwide, by contrast, most policymakers either advocate punishment for clients or those who support sex workers. Or they target sex workers, their clients, and supporters for arrest, fines, and prison sentences. Policymakers also see criminalizing advertising or sexualized content online as a way to punish those coercing sex workers. None of these approaches achieves the goals of lawmakers who want to discourage sex work—nor do these approaches address the needs of sex workers to earn a living safely or the concerns of advocates who want to protect children and others from coercive labor. Arresting sex workers, their clients, or those who provide support to sex workers does not address the concerns of any of these divergent stakeholders.
In fact, this frame of criminality increases the risks of sex work and may push sex workers into trafficking situations. Workers who view the police as adversaries, who need to protect themselves from crime, and who must pay their own bail if arrested and jailed need assistance and support from others. Workers need to reach clients to earn an income, and the more difficult it is to advertise online the more they must turn to alternative or underground methods of finding them. Workers lose power when they lose legal options for help. The poorest and most vulnerable, seeking help to advertise, to evade arrest, to pay for their release if detained, and to avoid other crime may enter relationships that can all too easily leave them less free to set their own rules about clients, services, or wages. If criminal records affect the ability of sex workers to seek traditional jobs, receive government benefits, and fully participate in civil society, those who have been jailed or imprisoned will only see fewer options to make a living and shape their own futures.
Focusing on criminalizing sex work also obscures real problems that, if addressed through policy, would improve lives and health and allow those who prefer to engage in other types of labor to do so. Kids selling sex on the streets tell researchers that it is not pimps that worry them; it is food, housing, shelter. When sex work is the simplest way to provide for oneself, people will seek it out regardless of health and safety concerns. Evidence shows that removing criminal penalties for sex work (decriminalization) allows people to get help when they need it. Removing criminal penalties:
- gives sex workers legal options to control their safety and terms of work
- allows those who experience violence or coercion to engage with authorities who can help them
- lets authorities focus on the real crimes and dangers
- allows sex workers greater access to preventative health care and treatment
For instance, a finding that decriminalizing sex work is the best way to fight HIV/AIDS.
Decriminalization is a Research-Backed Solution
So clear is the evidence I have summarized, that from the United States and around the world recently called for federal and state legislators to decriminalize sex work as part of efforts to reform the criminal justice system. The market for sex work is alluring—and profitable—for different reasons to different people, and sex workers are a diverse group engaging in a variety of activities with varying degrees of safety. Some individuals enjoy sex work and the careers they have made from it; for others, it will remain a viable occupation as long as other occupations are less profitable. Any attempts to eradicate sex trafficking must be pursued apart from the business of regulating consensual, adult sex work.
Just as with other highly polarizing topics like abortion, policymakers can and do hold deeply emotional, personal values and ideas about sex work. But without meaningful, rigorously sourced evidence about the populations they are regulating, policymakers often produce more harm than good—even in terms of their own values. Regulations and laws based on emotions alone fail to address real concerns and improve public health and safety.