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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Taking Sex Workers for a Ride

Here in Boston, there is an organization for homeless and at-risk youth called Bridge Over Troubled Waters. They began in the 1960s as a group of women offering sandwiches and a supportive ear to runaway, throwaway and neglected teens in Boston Common and Harvard Square. Over the decades, they grew into a model organization, with a mobile medical van as part of its street outreach, and the first emergency shelter for homeless youth in the country.

One of the reasons they have been as effective as they are is that they take the time to build rapport with street youth. They don’t impose their will on them; they meet them where they are, or wait for them to come.

That, I have learned, is vastly different from the vision of those who seek to “rescue” people from sex work, especially street-based sex work. Seattle is one example of this, where police don’t simply refrain from arresting street-based sex workers, they take them for a ride to members of the city’s “Organization for Prostitution Survivors,” which touts itself as offering “counseling and advice” to sex workers.

If that’s anything like the “counseling and advice” given by Peter Qualliotine in Seattle’s “john school” program, then sex workers in that city would be wise to steer clear. Qualliotine – an art college dropout whose only qualifications for running such a program is that he worked for prohibitionist fanatic Melissa Farley – attempts to indoctrinate members of his “STOP Exploitation” classes in a noxious hodgepodge of extremist ideology and shame-filled pseudoscience, all wrapped up with a speech reminiscent of an evangelical preacher’s temperance sermon abjuring the faithful to swear off liquor.

Of course, I would expect Peter Qualliotine, Alisa Bernard, and others at OPS to scoff at my description, denouncing me as a “sex trafficking apologist” or member of their mythic “pimp lobby” for daring to question their dogma. Let me pose a couple of important questions for them: If commercial sex is so universally terrible, and if you are offering such beneficial services, why do you need undercover police officers to bring street-based sex workers to you under false pretenses? If you’re so convinced that no one really consents to selling sex, how is using the police to deceive and intimidate women into listening to you any better?

Frankly, I don’t expect an answer from them. But for anyone else reading, think about the use of such disingenuous means to achieve their ends. And remember that this is being done on the taxpayer’s dime.

Tea, Consent, and Commercial Sex

You may have heard about the video which explains sexual consent by making an analogy with tea:

I like the use of analogies and metaphors to get a point across. I also enjoy tea better than the average American, some acquaintances saying my love of tea could rival that of the British and Irish. With that in mind,…

Let’s say that someone has heard about my knowledge and skill regarding tea, and would not only like me to brew and serve some tea for them, but would be willing to pay me for it. I give it a moment’s thought, and agree. The table is set, the tea is brewed and served with suitable edibles, the whole experience enjoyed by my guest, who pays the agreed-upon remuneration plus a gratuity.

Not bad.

So, why not make this a business? I spread the word about my willingness to make and serve tea to paying customers, from word-of-mouth to the World Wide Web, and build a customer base. I set some limits on what I will and won’t do, establish a schedule of fees for different levels of service, and build a base of regular and occasional clientele. Sometimes I enjoy it, sometimes it’s tedious or even annoying – but so long as no one uses force or deceit to get me to make them tea, or doesn’t pay the agreed-upon fee, I’m good.

Now imagine that I run into people who have a problem with this. Some argue that, to “protect” me and/or my clients, I need to be licensed – not the same kind of licensure that a restaurant or catering company goes through, but special licensing through the police, along with excessive and intrusive health checks, severe limits on advertising and location, and constant political and social scrutiny. Others would argue that, while there’s nothing wrong with serving tea for free, as soon as you exchange it for money, some nefarious force robs tea-service-sellers of consent, and all tea-service-buyers are selfish and abusive, not to mention the people who run those filthy teahouses, so let’s “rescue” the poor tea-service-sellers and punish those nasty buyers and bosses by making it a crime to pay for tea service, or living off the avails of tea-service-selling, because you should only consent to making or having tea when you truly love the other person.

What about if a tea-service-seller argues they’re not being forced, they don’t hate what they do, the majority of their clients are not abusive assholes, and they don’t need the police or anyone else interfering in their business? Well, the ones who argue that all tea-service-selling is a form of modern-day slavery dismissively argue that those poor sellers are “not representative” and deluded by “false consciousness,” so no one should listen to them. The stigmatizing narrative of the “anti-sellers” even begins to negatively affect the sellers’ community, yet still they persist and protest, based on the basic premise that the only people who get to decide who has tea with whom, and under what terms, are the people themselves.

Money is not magic. It doesn’t have any mysterious power to erode or negate consent. And if it’s possible to give and receive something consensually, then it’s also possible to buy and sell it consensually.

Seattle Prosecutor Val Richey’s Warped Idea of Consent

The basic argument for decriminalizing sex work is rooted in the basic premise that government should not interfere in the private interactions of consenting adults. Ironically, prohibitionists like King County prosecutor Val Richey would claim to agree. The problem, they assert, is that money somehow erases consent.

“What you have is someone paying this person essentially to turn a ‘no’ into a ‘yes,'” Richey recently told the Seattle Times. Interviewed about the massive bust in that city last year, he insists that, because the women were “doing it for the money” and not “as a leisure activity,” they must have been coerced.

Elizabeth Nolan Brown, in her recent blog post for Reason magazine, summed it up with a priceless gem of a quote:

By that logic, anyone who wouldn’t perform their job without remuneration is a victim of labor trafficking!

The simplest definition of consent is “voluntary agreement or permission” – one person wishes to engage in an activity with another, and the second person willingly agrees and permits. This also implies that the person being asked has the option to refuse. Most importantly, the principle of consent recognizes that each of us places various conditions on whether or when we agree to a given action.

Let me give some examples based on my love and knowledge of tea (and yes, the Youtube “Tea and Consent” video springs to mind). I will gladly accept a cup of tea from a friend, but not without certain conditions – no milk (given my dairy allergy), little if any sugar, and definitely not any from the Charleston Tea Plantation (which, quite frankly, is indistinguishable from having boiled three year old balls of lint). I will also gladly share stories and opinions about tea in casual conversation. But let’s say that someone asks me to taste the results of their tea-blending experiments, or to make a special blend and serve it at a special event, or to write a paper or deliver a talk. Yes, I’d enjoy doing so, but that doesn’t mean that I’m going to abrogate my right to be compensated for such work. My requiring payment for the time and effort required says nothing about whether I would enjoy doing so. It is a condition to my agreeing to do so, just as much as any other condition I might impose.

The same holds true with sex work. Payment does not negate consent; it is a condition of consent, just like other limits that sex workers place on their participation. As Liz Brown rightly points out, to argue that being paid automatically equals being forced is to regard all paid labor as a form of slavery. Granted, people frequently take jobs they would rather not do. But limited choice is not the same as having no choices at all – and to tell those who enter sex work that you will limit their choices further “for their own good” is both paternalistic and hypocritical.

This is also the case with sex work clients. Their choices are often framed by circumstances beyond their control, from physical or psychological disability, to the sudden loss of an intimate relationship. They establish certain conditions, and must abide by the conditions of prospective providers. To reduce the interaction simply to money, and reduce money further into an instrument of coercion, is to ignore the full context in which client-provider interactions take place.

Money is not the instrument of coercion here. It is the archaic and inhumane laws against consenting adults agreeing to their own conditions for sexual expression. It is the enforcement of these laws which hamstring the ability of sex workers to assure their safety through screening and other measures, and to seek recourse whenever consent is violated. It is the paternalistic ideology of prohibitionism that is to blame for unduly limiting the choices available to both clients and providers. Whenever government shackles the power of individuals to consent with one another, it is tyranny.