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Sex Workers Suffer the Unintended Consequences of Trafficking Laws

Sex Workers Suffer the Unintended Consequences of Trafficking Laws: © Patrick Chauvel / Corbis

© Patrick Chauvel / Corbis

The first righteous fight scene in the first episode of the acclaimed Daredevil Netflix series shows our hero beating the tar out of a gang of human traffickers. The traffickers are led by a black man, and they have kidnapped three white women. The women scream as they’re loaded into a shipping container, and they continue to whimper and scream throughout the fight. When Daredevil has defeated the bad guys, he tells the women authoritatively to go find a police officer. When they hesitate, he shouts at them and hits the side of the container. They scurry away in a final flurry of (you guessed it) screams and whimpers. Who they are, or why they might be unwilling to go to the cops, is never explored. Their only function is to express terror, highlight the evil of their captors and be saved. They have no other story, and they never speak.

Daredevil’s version of trafficking is obviously fanciful and hyperbolic. But it’s also telling. Trafficking is often discussed as an absolute evil visited upon utterly debased and helpless victims. Trafficking is seen as insidious—we need Daredevils to stop it, because normal law enforcement and current laws are unable to cope.

“It is hard to solve this problem under the criminal code,” as real-world former federal prosecutor Jeffrey Cramer insists.

Cramer is talking about Cook County Sheriff Tom Dart’s efforts to prevent supposed traffickers from advertising on Internet adult services sites like Backpage.com. But his remarks have a more general application. There are, obviously, laws on the books against kidnapping, against slavery and against rape. But these are increasingly seen as providing insufficient protection. Daredevil, Tom Dart and other crusaders need better tools to protect the innocent.

These tools often take the form of new laws meant to address trafficking and help victims. In theory, such laws would allow police to round up traffickers and release the hundreds of thousands of victims that activist groups such as Polaris claim are kidnapped for sex and other purposes in this country.

In practice, though, things are a bit more complicated. In the first place, the scale of trafficking appears to be wildly overstated. Glenn Kessler at the Washington Post has explained at length how federal and international estimates of trafficking worldwide are based on vague data, wild estimates and fuzzy definitions.

Among other things, anyone who is under 18 and sells sex is considered a trafficking victim under federal law, even if they are not being coerced by a trafficker. A 2011 study of underage prostitutes in Atlanta found that 86 percent did not have a pimp; an earlier study of underage New York prostitutes found that 90 percent of them didn’t have a pimp either.

“Policymakers should rethink the incursion of the sex trafficking model into the policies and practices governing prostitution,” the study authors conclude drily.

Policymakers have not followed that advice, however. Trafficking laws are used more and more not to arrest pimps and traffickers but to reclassify and police sex workers.

The most high profile example is in New York, where new trafficking courts were established in 2013 to help those in the sex trade who are “victims of coercion, neglect, and abuse.” What this means is that “Anyone who is arrested for prostitution they call ‘trafficked,’ according to Alison Bass, professor of journalism at West Virginia University and author of the forthcoming book Getting Screwed: Sex Workers and the Law.

"The police are going after women and men who are selling sex by choice,” Bass told me. “It’s much easier [to arrest them]—because they’re out in the open, they’re advertising on the Internet, they’re on the street.”

Traffickers, on the other hand, are very careful. And, Bass adds, there aren’t very many of them.

The Red Umbrella Project, a peer-led sex worker advocacy organization, provides evidence that the NYPD is mostly concerned not with rescuing victims but with ease of arrest. Red Umbrella Project published a study in 2014 that suggested that New York police are using racial profiling to fill their trafficking courts.

In Brooklyn, where black people are a third of the population, a full 94 percent of those arrested for "loitering for the purposes of prostitution” are black women. Those arrested are then sent to trafficking courts and on to an array of services that are supposedly designed for trafficking victims — like “mandatory yoga.” Through its miraculous new approach to law enforcement, New York has essentially redefined “arresting black women” as “fighting trafficking.”

Trafficking laws in other venues work somewhat differently. Often, they don’t seem to work at all. Michigan recently reported that its much-ballyhooed anti-trafficking initiative managed to net only three reports of human trafficking in all of 2014.

Michigan’s experience is in line with what writer and researcher Tara Burns found in her extensive study of trafficking laws and convictions in Alaska. In the period she studied, from 2012-2013, only six people were charged with trafficking. Those charged were either people who were also charged with prostitution or people maintaining brothels, or in one case, the husband of a sex worker who was allegedly helping with the business. One woman was charged with trafficking herself; another sex worker was charged for trafficking because she shared space with other sex workers after she booked a duo with another worker and an undercover police officer. Burns found that no one has been charged with trafficking a minor in Alaska since 2010.

Alaska officials blamed the paucity of arrests and convictions on the fact that human trafficking victims are reluctant to go to law enforcement. Like those victims in the container that Daredevil rescues, trafficking victims are supposed to be so traumatized they can barely function, much less bring their abusers to justice.

The truth is perhaps more mundane. As Alison Bass told me, “Sex workers are afraid to report violent crimes or abusive pimps or traffickers for fear of being arrested themselves. So they don’t come forward when there’s a guy who’s hurting or killing sex workers.”

Tara Burns, a former sex worker herself, agreed. “I can’t say whether anyone has or hasn’t been trafficked in Alaska, because I’m not everywhere,” she told me. “But I think that the way that they’ve gone after these laws has been unhelpful. Instead of treating people with basic respect and human dignity when they are trying to report things like trafficking, they’ve been really coercive and have behaved abusively towards people who have identified as victims.”

Burns told me that she “was talking just the other day to somebody who was considering coming forward to talk to the police” to report an ex-partner who was extorting her. “So I texted the Deputy Commissioner of the Department of Public Safety,” Burns said, "and I asked, can this person report this without being threatened by your officers, and without becoming the subject of a future investigation and losing her business? And he basically said no.”

Given the evidence that trafficking laws do not in fact catch many traffickers, you’d think that law enforcement would pursue different tactics. But again, as Bass pointed out, arresting sex workers is easier — and it has other benefits as well.

As Lt. Bill Young of the Las Vegas Metro police said in an interview with FFF, “You get up in a penthouse at Caesar’s Palace with six naked women frolicking in the room and then say: ‘Hey, baby, you’re busted!’ That’s fun.”

Burns added that in many jurisdictions, there’s no rule against police having sex with a prostitute and then arresting her. She has been lobbying the legislature in Juno to draft laws to make it illegal for police to have sexual contact with people involved in active investigations.

Burns is also currently working to chart “every prostitution and sex trafficking and promoting prostitution charge that has been filed in the country.” (She has a Patreon funding her effort, to which I’ve contributed.) Hard data is necessary, she says, because “Everybody on both sides of the issue needs to be better informed. We need to have numbers and to know exactly what is happening in the court system.”

A better understanding of how trafficking laws work, and who is actually being arrested for trafficking, might help us recognize, among other things, that we’re not in a superhero narrative. The woman, and for that matter the men, involved in sex work don’t need dashing heroes leaping down from the skies to save them. They need, first of all, to not be arrested. And rather than being herded towards the police station, they need all those swaggering heroes to stop a moment and let them speak.


Noah Berlatsky edits the comics and culture site the Hooded Utilitarian and is the author of Wonder Woman: Bondage and Feminism in the Marston/Peter Comics 1941-1948.


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