De-Facto Decrim and How It Would Work

An author friend of mine has a series of books primarily set in a fictional city where the police chief, made painfully aware of the problems created by criminalizing sex work, has come up with the solution of having his department operate as though commercial sex work was already decriminalized, even establishing a “special district” where street-based sex workers are able to operate with relative safety.

In fact, such a policy has been in place in the Canadian cities of Victoria and Vancouver for some time, resulting in significant improvements in sex worker safety in those locations. Here in the United States, Democratic candidate for Queens District Attorney Tiffany Cabán has pledged not to prosecute sex workers or their clients if elected – a similar policy of de-facto decriminalization

Such a pragmatic approach is not without precedent, and is rooted in the discretionary authority given to law enforcement. Usually such “selective enforcement” is done on a case-by-case basis – such as when a police officer gives a driver a warning for a minor violation rather than write a ticket – but there are also cases where an organization determines that strict (or any) enforcement of a particular law does not serve the public interest.

I would argue that a local-level policy of de-facto decrim is just such a case, and should be a goal for advocates of sex worker rights to pursue as an interim step towards actual full decriminalization. Such a policy not only assures greater safety for sex workers and those associated with them, but better serves the public by allowing more resources to be dedicated towards addressing acts of violence and other major crimes, including and especially police corruption and abuse.

This raises two general questions:

  1. What exactly would “de-facto decrim” (or DFD) look like?
  2. How would it be implemented?

As mentioned before, DFD could be implemented simply as a standing policy of a municipal police department, as in Victoria and Vancouver. Similarly, a local prosecutor’s office could implement a policy of not pursuing prostitution charges when there is no evidence of violence, coercion or fraud. The only issue here is when police and prosecutors are not in sync, so even if a prosecutor refuses to pursue certain charges, police may continue to make arrests. Both of these agencies may also be hesitant to implement any such policy if local government is not supportive. Ideally, then, a synchrony of these organizations would make sense, but it would still be feasible for DFD to begin with one of these groups implementing it in whole or in part, and the rest establishing concurrent policies and practices later on.

Returning to the first question, the simplest start for DFD would be to institute a moratorium on arrests for prostitution-related charges, whether of sex workers or their clients – a position which the Massachusetts Pirate Party is petitioning the Boston Police Department to implement. On a broader scale, this would mean non-enforcement of any laws against the consensual exchange of sexual services for pay, so long as no violence, coercion or fraud has taken place. A more detailed delineation of how this would be put into practice would include:

  • No arrests, investigations or sting operations against sex workers, their clients or third-party associates regarding any consensual activities between them.
  • Laws against brothel-keeping, which are too often used against sex workers who operate out of a shared space to ensure greater safety, would also not be enforced; in the event of a third party forcing two or more people to provide commercial sex from a given location, charges of false imprisonment and involuntary servitude could and should be employed instead.
  • Laws against “pimping” – already so vaguely worded that any individual who receives money from a sex worker could be arrested – would likewise not be enforced against any third-party facilitator, so long as the sex workers involved have no problem with how said facilitators operate. If there were problems of fraud or abuse, then again the police and prosecutors should enforce other laws to provide recourse for the workers involved.
  • Sex workers, sex work clients and third-party associates would be assured blanket immunity when reporting crimes to police and prosecutors, whether against themselves or another member of the community.
  • Police would work with sex worker organizations to address violence against sex workers, using proven community policing strategies. This would include addressing abuses by police officers, through changes in departmental policies and practices.
  • Complaints from residents about sex work activity would be addressed through conflict resolution involving sex worker organizations and social service agencies, with a goal of finding a resolution which best addresses the needs of all parties involved.
  • Police may establish a “tolerance zone” for street-based sex work, in consultation with sex worker organizations, with officers specifically trained to address the issues faced by sex workers, based on a community policing model. This would also include police providing information on “bad tricks” to sex workers operating in said area.
  • Incall and outcall sex work would likewise be allowed to operate without interference, so long as the activities engaged in are consensual.

Naturally, this is not a complete list, and certainly different localities would address specific needs in their implementation. But the common pattern is that police and other municipal agencies would start from the premise of what sex workers want in order to improve their lives, and resort to arrest only when violence or other abuses have taken place.

Aside from the practical benefits of increasing sex worker safety and well-being – as seen in Victoria and Vancouver – well-executed DFD models would also provide further evidence of the need for actually changing the laws to full decriminalization and the recognition of sex workers’ rights. Thus while it is not a complete solution, it is an applicable step towards developing and implementing more permanent ones in the areas of law, public policy, and community policing practices.

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