A Step Toward Decriminalization

New Massachusetts house bills seek to decriminalize the selling of sex

by Jules Marsh

Last Wednesday, Rep Kay Khan of the 11th Middlesex District filed two bills, An Act Relative To Sexually Exploited Individuals (House Docket 1679), and An Act Relative To Codifying Protections For Sexually Exploited Children (House Docket 1681), in the Massachusetts State House. These two bills both seek to decriminalize the selling of sex. One completely decriminalizes young people involved in sex work by repealing a current statute, the other attempts to decriminalize adult sex workers by striking certain language and creating a new category of sex workers that would be protected under the law. The two bills evolved from an earlier bill, HB 3499, which was submitted to to the Massachusetts House and Senate in early 2017 and then sent to the judiciary committee for study.

Any step towards decriminalization is a win for sex workers’ rights. But unfortunately, these bills leave in place statutes, language, funding, and institutional infrastructure which undermine the legislation’s goal of reducing criminalization, creating incentives to more aggressively pursue certain sex workers over others.

While current law ensures that courts must go to great lengths to avoid the arraignment of sexually exploited children, loopholes remain which the criminal justice system can still use to prosecute young people in the sex trade. For instance, as stated in Section 39L in Title XVII Chapter 119, “If the court finds that the child has failed to substantially comply with the requirements of services or that the child’s welfare or safety so requires, the court may remove the proceeding from file, arraign the child and restore the delinquency or criminal complaint to the docket for trial or further proceedings.” By repealing all of Section 39L, HD 1681 closes those loopholes and completely decriminalizes young people involved in sex work.  

HD 1679, the bill addressing adult sex workers, is much weaker than its counterpart. It partially decriminalizes the selling of sex but leaves in place statutes that criminalize the buying of sex, de facto establishing the Swedish model of sex work legislation introduced in Sweden in 1999. The Swedish model, which criminalizes clients but not sex workers, has created increasingly dangerous working conditions for the sex workers it claims to protect in the European countries which have adopted it. Global Network of Sex Work Projects (NSWP), an organization which advocates for social services and self-determination for sex workers of all genders, reports in The Real Impact of The Swedish Model on Sex Workers,There is no evidence that levels of sex work have declined as the law [in Sweden] intended. Instead, sex work takes place in increasingly clandestine locations, and sex workers who more immediately need the income from their sex work experience greater danger and difficulty in the context of their sex work.Ugly Mugs, an organization that collates reports from those working in the sex industry, found that one year after Ireland implemented the Swedish model, Irish sex workers reported a 77% increase in violent crime.

According to Caty Simon, a Holyoke-based organizer and co-editor of national sex worker media site Tits and Sass, “When clients are targeted the whole industry is driven underground. To avoid the risk of being caught, clients resist screening processes and opt for more isolated locations for sessions,exposing sex workers to more violence and reducing our access to harm reduction practices such as ID checks.”

Simon describes how criminalization of both clients and sex workers endangers sex workers and complicates their work processes: “I can never discuss the conditions of my work with clients if I don’t want to incriminate myself. It’s as absurd as having writing invoices be outlawed, and as deadly as the fact that that omission leaves me vulnerable to rape.”

Prior to 1999, the sex industry, including both workers and clients, was not outlawed in Sweden. Therefore, while the Swedish model inaugurated new criminalization, HD 1679  differs in that it amends language that criminalizes sex workers but simply leaves in place the existing statute that criminalizes clients.

Rather than striking the solicitation statute which prohibits the selling of sex entirely, the bill introduces a new category of sex worker called a “Sexually Exploited Individual (SEI),” and creates an exception which states that SEIs shall not be punished by the solicitation law. In Chapter 272 Section 8, the bill reads, “Whoever solicits or receives compensation for soliciting for a prostitute except a sexually exploited Individual whose body is solicited, shall be punished by imprisonment in a house of correction for not more than 2 and one-half years, or by a fine of not less than $1,000 and not more than $5,000 or by both such imprisonment and fine.” The new category of SEI is broad, including people voluntarily engaging in sex work as well as trafficking survivors. SEI also includes “common night walkers,” a legal category used to arrest street sex-workers.

The decriminalization of SEIs is a huge step toward decriminalizing sex work. But the bill still enables criminalization on some level, creating a tier of privileged sex workers that the law favors over others. While the bill was being drafted, members of the Boston chapter of Sex Workers Outreach Project (SWOP-Boston) and Boston-based Massachusetts Sex Worker Ally Network (MASWAN) advised Rep Khan that this new category in tandem with existing language used to target sex workers may have the unintended effect of creating a “perfect victim” class. In the meantime, other sex workers which the criminal justice system is likely to label as non-SEIs, such as people of color, foreign nationals, and those with prior records may be disproportionately harassed and arrested.

The bill could particularly benefit outdoor and survival sex workers because it eliminates punishment for “common night walkers [and] common street walkers,” a statute that requires a low burden of proof which is regularly used to fine and imprison street sex workers, as reported in our 2018 interview with Simon. Sara Kallock from SWOP-Boston/MASWAN told The Shoestring that the common nightwalking statue is “not only stigmatizing but has an actual concrete effect on the lives of people who work in street based markets in that they are frequently targeted by police under this statute.”

Marginalized sex workers who inject drugs report that recently common nightwalking arrests have sometimes been paired with Massachusetts’ Section 35 statue which involuntarily confines  people if their alcohol or drug use is believed to be a danger to themselves or others. However, any withdrawal symptoms that occur while people are held are used to justify the Section 35 holds in the first place. Even without being combined with a Section 35 hold, common night walking arrests occur as often as every week for street-based workers, leaving those who use opioids vulnerable to overdose after tolerance is lowered by a night to a weekend of withdrawing in lockup.

While the removal of the “common night walkers” clause is a step in the right direction, the bill leaves in the criminalization of “disorderly persons” and “disturbers of the peace,” language known as “public nuisance” laws, which is aimed at street based sex workers in particular and houseless people in general. With such language still in effect, street-based sex workers are still at risk of criminalization. And as Kallock notes, “Once convicted, it goes on their record and compounds their vulnerability to the criminal system. Public nuisance laws have the effect of branding sex workers as disturbers of the peace.”

HD 1679 does make an effort to provide social services to sex workers, but the source of its funding actually harms sex workers. SEIs are designated as eligible recipients of the Victims of Human Trafficking Trust Fund (VHTTF). However, the VHTTF is subsidized by wealth seized by the state from traffickers and clients of sex workers through arrests and fines. Because the fund is supported by arrests of clients, it ultimately endangers sex workers. The addition of a new category of eligible recipients might even lead to more intense criminalization of clients.

Kallock observed, “[The VHTF] incentivizes seizure of assets from stings which historically and recently have targeted groups of sex workers who haven’t necessarily [been] trafficked in the way we tend to think. They are not kidnapped, they are not working without pay. And if they are foreign national sex workers it can be defined as a trafficking sting. Just because foreign nationals [are] selling sex doesn’t mean there is trafficking.”

According to the sex workers we spoke to, the actual amount of money available in the VHTTF is extremely low. We asked Rep Khan’s office how much is in the fund, but have not yet heard back. The Boston Herald reported that as of  May 2017, the VHTTF had yet to award a single grant and had only $16,000 in it, most of which came from a one-time $15,200 deposit from Worcester’s DA office. As Simon notes, “Our Attorney General uses anti-trafficking rhetoric to create task forces, but there are no actual resources for trafficking survivors.” While lobbying legislative staffers during the writing of the bill, members of SWOP-Boston/MASWAN suggested that more sustainable funding for VHTTF could be provided by “divesting funds used for policing, raids/arrests, and corrections and reinvesting the proceeds in community development and service programs.”

Despite these flaws, HD 1679 and HD 1681 represent a heartening first step toward decriminalizing sex work entirely. Summing up the bills’ impact, Simon stated, “Elimination of ‘common night walkers’ and the decriminalization of sex work by minors is a huge boon.” However, ultimately Simon and the global sex workers’ rights movement advocate for the complete decriminalization of sex work. Simon proposed, “Treat it like any other business.”

Kallock concluded, “The whole point of the bill is to reduce criminalization. SWOP-Boston/MASWAN applaud that, and this is a step forward.” However, she remained concerned about the effect the bill will have on marginalized and low-income sex workers: “On the whole the bill should be really beneficial for indoor markets and escorts. But it leaves in place statutes that can be used to criminalize street-based work, and foreign nationals who are often targeted for trafficking in situations where trafficking is not taking place.”

From now until February 1st, legislators will have the opportunity to sign on as co-sponsors of newly filed bills before they get assigned to committees and receive official bill status. Each bill will have a public hearing by February of 2020. We reached out to Rep Khan for comment on her inspiration for the bills and her choice to leave the criminalization of clients in place, but have not yet heard back.

Jules Marsh is a co-editor of The Shoestring. They are alive in Massachusetts. 

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