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A political fight over decriminalizing sex workers

A demonstration at the recent state Democratic convention in San Francisco in support of decriminalizing sex workers. (Photo: Sheila Fitzgerald, via Shutterstock)

Veronica Loveall, a Sacramento sex worker, isn’t a fan of Kamala Harris.

Loveall has been involved in sex work for about 10 years. She participated in what she calls “erotic companionship” when www.Backpage.com – formerly a popular website for sex workers to advertise – was active. She watched as Congress passed legislation that crippled sites like Backpage.com, dismantling what Loveall considered a safety net for people who engage in sex work.

And she lays plenty of blame for that on former state attorney general and current U.S. Sen. Kamala Harris who, with a number of other law enforcement officials across the country, fought Backpage.

“When they took it from us, it hurt us,” said Loveall, a name she uses in her work. “We are human. We do deserve to be safe.”

“We should not be criminalizing women who are engaged in consensual opportunities for employment.” — Kamala Harris

Harris, a Democratic candidate for president,  told The Root in February that she had an open mind about decriminalizing sex work.

In her interview, she said people should understand it’s not a simple issue.

“But when you’re talking about consenting adults, I think that, yes, we should really consider that we can’t criminalize consensual behavior, as long as no one is being harmed,” Harris said.

She made similar comments at a number of events, including an April 23 town hall meeting sponsored by CNN. “We should not be criminalizing women who are engaged in consensual opportunities for employment.”

But that appears to be at odds with positions Harris took as a law enforcement official, a point Kristen DiAngelo – cofounder and executive director of the Sex Workers Outreach Project, Sacramento – is quick to point out.

According to DiAngelo, Harris fought hard to gut Backpage.com – an action that Harris alluded to at the town hall. Harris said she attacked Backpage.com both in the courts and through legislation.

But DiAngelo contends that did nothing to decriminalize prostitution, and she notes that Harris throughout her career has fought against sex work.

In Sacramento, a state senator is pushing a bill that would prohibit the arrest of someone for certain sex work crimes.

Harris couldn’t be reached for comment for this story, despite multiple attempts.

Legalization
The legalization of prostitution would bring a sea-change to a state the size of California.

Currently, it is allowed in only sparsely populated Nevada counties.

An attempt to legalize sex work failed before the Ninth Circuit Court of Appeals, though its supporters say they’re not through.

In Sacramento, a state senator is pushing a bill that would prohibit the arrest of someone for certain sex work crimes, if the person is making an accusation of sexual assault, human trafficking or a handful of other crimes. It also would prohibit introducing the possession of condoms as evidence when prosecuting someone for prostitution.

“If sex workers fear they will be arrested when they report a violent crime, they’ll simply not come forward.” — Scott Wiener

That legislation, Senate Bill 233, was introduced by state Sen. Scott Wiener, a Bay Area Democrat. It passed the state Senate on May 2 and currently is in the state Assembly.

“Our laws should actually keep people safe, and these practices undermine public safety,” Wiener said in an email. “If sex workers fear they will be arrested when they report a violent crime, they’ll simply not come forward.”

Wiener called sex work a fact of life, adding it should be safe and healthy instead of criminalized.

Sex workers who fear condoms will provide evidence in a criminal case might not carry them, endangering themselves, their customers and the community.

“If we’re carrying condoms, it’s not going to get us in trouble,” Loveall said. “You get caught with more than three condoms in an area with high traffic, you’re going to jail.”

Safety
Websites like Backpage.com gave sex workers not only a method to advertise their services, but also a level of safety that Loveall said is now missing.

Sex workers could screen people before meeting them. Walking the streets removes that buffer and increases danger, Loveall said.

“Trafficking’s going to occur whether that website’s there or that website’s not there.” — Kristin DiAngelo

The Stop Enabling Sex Traffickers Act and the Allow States and Victims to Fight Online Sex Trafficking Act (SESTA and FOSTA, respectively) did just that. Making online publishers responsible for others who post ads for prostitution on websites, SESTA and FOSTA crippled websites like Backpage.com after its 2018 passage.

The legislation intended to make it easier for law enforcement to stop sex trafficking.

Decriminalization advocates like DiAngelo strongly disagree.

“Trafficking’s going to occur whether that website’s there or that website’s not there,” she said.

DiAngelo said she knows a woman who was trafficked. Websites like Backpage.com enabled her to use hotel rooms, an option that could have saved her life. When the websites went down, the woman was forced to work the streets. Police arrested her seven times over nine months. The woman couldn’t tell her story to officers because she’d admit to committing a crime.

Harris in 2008 fought against Prop K – which would have stopped police from providing resources toward investigating and prosecuting prostitution.

Attacking resources like Backpage.com, which keep people being sex trafficked alive until they can escape, only makes their lives worse, DiAngelo said.

A group called the Erotic Service Providers Legal Education and Research Project (ESPLERP) slams Harris for what it said is her role in making SESTA and FOSTA law.

Then San Francisco’s district attorney, Harris in 2008 fought against Prop K – a measure that would have stopped the city’s police department from providing resources toward investigating and prosecuting prostitution. The measure failed.

Harris as the state’s attorney general attacked Backpage.com twice through the courts, and made the legal move part of her campaign for the U.S. Senate, the ESPLERP states.

Harris “used her elected positions as (San Francisco) D.A., (attorney general) and now U.S. senator to pass laws that re-criminalize all of what would be normal business activities to further her political career…,” wrote  the ESPLERP’s Maxine Doogan in an email.

Her group opted against pursuing an appeal to the U.S. Supreme Court, saying it would instead look to the California Supreme Court.

The ESPLERP sought to have prostitution decriminalized and declared unconstitutional in California courts – the legal move that ultimately failed in the Ninth Circuit.

It was a case Harris opposed as the state’s attorney general — a stance the ESPLERP hasn’t forgotten.

The law that Harris defended  “violates our constitutional rights to negotiate for our own labor and our own safe work conditions, our right to substantive due process and our right to be in association with our clients,” Doogan wrote.

Her group opted against pursuing an appeal to the U.S. Supreme Court, saying it would instead look to the California Supreme Court. It cited the 2018 retirement of Justice Anthony Kennedy, and the expectation a conservative would take his place on the high court, as one reason for changing tactics.

“We really believe in the principle that people have the right to do this (sex work).” — Louis Sirkin

Cincinnati-based attorney Louis Sirkin, who represented the ESPLERP at the Ninth Circuit, said a “liberty interest” exists in sex for hire.

Sirkin has argued the government must have an interest in banning something that isn’t based on morality. Previous court decisions opened the door to allowing explicit material in your own home. Courts also have struck down sodomy laws.

If someone wants to engage in sex for hire, and another person is willing to pay them, that right should exist in a free society, Sirkin said.

“We really believe in the principle that people have the right to do this,” Sirkin said.

Sirkin compared that interest to someone who wants to smoke a cigarette. That person has a right to smoke, despite knowing it could cause cancer. If that right exists, someone should be able to exchange money for sex with a willing participant.

“That’s the fundamental interest that’s involved in it,” he said.

Sirkin emphasized he’s arguing for the rights of people who chose to engage in sex work, not trafficking victims. Sex trafficking would remain a crime if prostitution were legalized, he said.

Decriminalization DiAngelo said, “is a fight for equal rights.

“You have to decide what side of history you want to be on.”

Editor’s Note: Uses term “decriminalization” in the headline instead of “legalization” to accurately describe advocacy efforts.


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