ENDING PROSTITUTION EXPLOITATION: HOW NEW YORK STATE CAN BETTER SUPPORT SURVIVORS OF THE SEX TRADE THROUGH LEGISLATIVE REFORM.

• Author: Rigal, Julia

INTRODUCTION

Linda grew up in Queens, with her parents and brothers. (1) When she was a teenager, she ran away from home with her boyfriend. (2) A month later, he brought her to Manhattan and soon started prostituting her. (3) While she was in prostitution, Linda was arrested many times; she had no credit or place of her own. (4) She stayed in prostitution until she was twenty-eight years old. (5)

Linda Oluch's story is in no way exceptional. Melanie Thompson, who also survived the New York sex trade, asserts that the overwhelming majority of people in prostitution "are in it by force, fraud, or coercion, or lack of choice." (6) Jessica Raven states that she was one of thousands of youth in New York City who traded sex for a place to sleep. (7) Further, New York is the state with the fifth most human trafficking cases in the country, (8) the majority of which involve sexual exploitation. (9) Current New York law criminalizes (10) people in prostitution, (11) thereby exacerbating their exploitation. (12) Many activist groups argue that the New York legislature should amend the Penal Law so that people in prostitution are no longer criminalized. (13)

On June 10, 2019, New York State legislators introduced the "Stop Violence in the Sex Trades Act" (hereinafter "Gottfried-Salazar bill"). (14) Decrim NY, the coalition that pushed for the bill, states that it aims to "decarcerate" the sex trade (15) and to decriminalize "consenting adults who trade sex, collaborate with or support sex working peers, or patronize adult sex workers." (16) Sponsors of the bill also seek to reduce violence and abuse in the sex trade. (17)

In recent years, various countries chose to modify their legislative approach to prostitution with the objective of ending the abuse of people in prostitution. (18) While some countries made the sex trade legal, others chose to decriminalize and support people in prostitution and to penalize prostitution buyers, (19) pimps, (20) and brothels. (21)

In the coming years, regardless of whether the Gottfried-Salazar bill is passed, many state legislatures will likely consider how they should update their prostitution laws. (22) This Note aims to determine the best legislative approach for states to adopt. Specifically, this Note analyzes the likely effects of implementing the Gottfried-Salazar bill. The author shares the bill's overarching objective of improving the lives of people in prostitution and, therefore, agrees that they should not be criminalized. While most scholarship has focused either on making the sex trade legal, (23) on penalizing pimps and prostitution buyers more harshly, (24) or on creating services for people in prostitution, (25) this Note argues for a legislative model that prioritizes the needs of survivors and addresses the root causes of the system of prostitution in order to dismantle it.

Part I explains the different legislative approaches to prostitution adopted in various countries in recent years and details the ways in which the Gottfried-Salazar bill seeks to amend New York's current prostitution laws. Part 11 analyzes whether the Gottfried-Salazar bill will accomplish some of its stated goals based on the results of similar prostitution legislation adopted in other countries. Part III proposes an alternative solution to the Gottfried-Salazar bill based on the Equality Model and principles of transformative justice.

1. Background on Legislative Approaches to Prostitution and the Gottfried-Salazar Bill

   This Part explores various theories of what prostitution is and the different legal approaches to the sex trade adopted by other countries, U.S. states, and the Gottfried-Salazar bill. Section A explains the tenets of three theoretical conceptions of prostitution which have led to different legal frameworks. Section B details the legal regimes relating to prostitution that various countries have adopted in the twenty-first century, either by making the sex trade legal or by adopting the Equality Model. Section C provides background on prostitution law and policy in the United States and examines key provisions of the Gottfried-Salazar bill.

   1. Theoretical Approaches to Prostitution Policy

      Scholars have identified three main theoretical views of prostitution, which have led to distinct policy approaches. (26) These three theories can be categorized as the prostitution-as-sin position, the prostitution-as-work position, and the prostitution-as-exploitation position. (27)

      1. Prostitution as Sin

         The prostitution-as-sin position maintains that prostitution is immoral and caused by the sinful nature of women. (28) Proponents of this position advocate for the full criminalization of prostitution, which includes the criminalization of being paid for sex, of paying for sex, and of advancing or profiting from the prostitution of others. (29) Under a full criminalization regime, prostitution is traditionally considered to be a "victimless crime." (30) However, the overwhelming majority of people in prostitution are forced into it by another person, (31) end up in the sex trade as a consequence of trauma, (32) or sell their bodies because it is their best means of survival. (33) The majority of people who have been involved in prostitution report being sexually abused in their childhood. (34) Studies have further shown that approximately 90% of people in prostitution wish to exit prostitution. (35) Prohibitionist regimes therefore criminalize people who engage in prostitution due to trauma or economic need.

         Further, the system of prostitution both emerges from and perpetuates various forms of structural oppression such as racism, sexism, and classism. (36) It is estimated that at least 80% of the people who are prostituted throughout the world are female and most of them are between the ages of thirteen and twenty-five. (37) The quasi-totality of prostitution buyers are men. (38) Women of color and transgender women are vastly overrepresented in the sex trade (39) and are more likely to get arrested on prostitution charges. (40) Studies have shown that the majority of prostitution buyers are middle- to upper-class white men. (41) Prostitution is therefore not only an issue of gender inequality, but also one of white supremacy and class-based injustice. Predominantly white, middle-class men with disposable income are able to demand sexual access to the most vulnerable members of society. Moreover, people in prostitution have historically been arrested and prosecuted at vastly higher rates than prostitution buyers. (42) This unequal enforcement of the law can be explained in part by a sexist double standard that vilifies women in prostitution as sexual deviants incapable of redemption and excuses men who buy prostitution as normal people attempting to satisfy their naturally irrepressible desires. (43)

         Today, some scholars adopt a utilitarian defense of full criminalization arguing that it gives law enforcement more tools to intervene in the lives of prostituted people and protect them from exploiters. (44) However, it does not make sense to criminalize people that the law seeks to protect from exploitation. (45) Criminalization tends to make prostituted women wary of asking law enforcement for help, for fear of being arrested or victimized by the police. (46) Moreover, forcing services on prostituted people runs the risk of further traumatizing them. (47)

      2. Prostitution as Work

         Proponents of the prostitution-as-work position maintain that people should have the right to prostitute themselves. (48) They prefer the term "sex work," do not consider sex work to be inherently harmful, and assert that there is a clear distinction between human trafficking, which is coercive, and consensual commercial sex, which is not. (49) Understandings of prostitution as work range from the view that prostitution is a conscious choice to work in a high-risk profession to the position that it is a job like any other. (50)

         Generally, defenders of the prostitution-as-work position argue for the legalization or full decriminalization of the sex trade. (51) Supporters of full decriminalization often purport that there is a clear distinction between legalization and decriminalization schemes. (52) They argue that, while legalization places the sex trade under state control through regulation, a decriminalization regime simply "removes all laws related to sex work." (53) They criticize regulation for requiring state resources, putting people at risk by making them register as sex workers or obtain a license to engage in prostitution, and failing to end the illegal sex trade. (54) Nevertheless, legalization and full decriminalization regimes both regulate prostitution as a form of work either through specific provisions (55) or through general labor laws. (56) They aim to end the stigma surrounding prostitution, improve the working conditions in which people are prostituted, and reduce violence in the sex trade. (57)

      3. Prostitution as Exploitation

         Advocates for the prostitution-as-exploitation position see prostitution as a form of institutionalized gender-based violence (58) that most often occurs at the intersection of sexism, racism, classism, child abuse, and violence. (59) In their view, those who are exploited should not be criminalized. (60) They support a partial decriminalization model, known as the "Nordic Model" (61) or the "Equality Model," (62) which focuses on education about the issues surrounding prostitution, the creation of services for people in or exiting prostitution, and the need to hold pimps and prostitution buyers accountable for their role as exploiters. (63)

         Some supporters of the prostitution-as-exploitation framework see paid sex as necessarily coerced by the money. (64) Others argue that there likely is a certain number of "willing sex workers," but that, if necessary, the rights of those who are harmed by traffickers should be prioritized over the freedom to sell sexual...