Sex Work

• Author: Neelam Patel, Sophia Blake, Sarah Finley, and Rachel Hutton
• Pages: 325-360

SEX WORK

EDITED BY NEELAM PATEL, SOPHIA BLAKE, SARAH FINLEY, AND

RACHEL HUTTON

INTRODUCTION .............................................. 326

I. DEFINITION OF PROSTITUTION UNDER STATE LAWS ............... . 330

A. SEXUAL ACTIVITY OR CONDUCT ......................... 330

B. COMPENSATION .................................... 332

C. INTENT .......................................... 332

II. CRIMES RELATED TO PROSTITUTION .......................... 333

A. PATRONIZING A PROSTITUTE............ ................ 333

B. PANDERING AND PROCURING ........................... 334

C. HEALTH AND SEXUALLY TRANSMITTED DISEASES ............. 335

III. DEFENSES TO PROSTITUTION CHARGES ........................ 337

A. RECOGNIZED DEFENSES ............................... 337

B. DEFENSES NOT RECOGNIZED ........................... 339

IV. LEGAL MODELS OF REGULATION AND DECRIMINALIZATION .......... 339

A. PROSTITUTION IN NEVADA ............................. 339

B. PROSTITUTION IN RHODE ISLAND ........................ 341

C. OTHER LOCAL REGULATORY EFFORTS . . . . . . . . . . . . . . . . . . . . . 343

V. FEDERAL REGULATION OF PROSTITUTION ....................... 345

VI. CONSTITUTIONAL ISSUES .................................. 349

A. FREEDOM OF SPEECH ................................ . 350

B. DUE PROCESS ..................................... . 350

C. EQUAL PROTECTION ................................. 351

VII. ARGUMENTS AND EFFORTS FOR DECRIMINALIZATION ............... 353

A. DEBATE OVER DECRIMINALIZATION ...................... 353

B. LEGAL EFFORTS TO ACHIEVE DECRIMINALIZATION ............ 356

C. SEX WORK IN THE LGBTQ COMMUNITY .................. 358

CONCLUSION ............................................... 359

325

INTRODUCTION

Sex work

1

has a long and lucrative history in the United States and around the

world. Today, the multi-billion-dollar commercial sex industry encompasses a

wide range of sexual services—some legal and others not—including pornogra-

phy, stripping, phone and internet sex, and sexual services obtained in brothels,

massage parlors, through escort services, or on the street.

2

Until the nineteenth century, prostitution was generally legal in the United

States and flourished in large cities.

3

In the late nineteenth century, groups con-

cerned with social morality—especially religious groups and women’s societies

—crusaded against prostitution, leading some states to regulate and eventually

ban prostitution.

4

In 1910, Congress passed the Mann Act, which outlawed the

transportation of individuals across state lines for the purpose of prostitution, and

also ordered the deportation of undocumented immigrant sex workers.

5

After var-

ious attempts to regulate prostitution, the federal government enacted the

Standard Vice Repression Act in 1919, which prohibited the buying and selling

of sexual acts.

6

Sex work remains criminalized in nearly every state,

7

though it continues to

have an entrenched and visible presence throughout the country. In the past quar-

ter century, the United States has witnessed a dramatic growth in the commercial

1. “Sex work” is preferable to the term “prostitution,” which both “describes and condemns.” Sylvia

A. Law, Commercial Sex: Beyond Decriminalization, 73 S. CAL. L. REV. 523, 525 (2000) (“The primary

meaning of the word [prostitute] has a sexual connotation, historically describing women who offer

sexual services on an indiscriminate basis, whether or not for money, and more recently, the offer of sex

for money . . . . Further, the term ‘prostitute’ conflates work and identity. Women who sell sex for

money typically have other identities, that is, daughter, mother, athlete, musician, et cetera.”) (internal

citations omitted). Here, when referring to individual actors, the term “sex worker” will be used except

where “prostitute” is required for legal or historical accuracy. “Prostitution” and “sex work” will refer to

the exchange of sexual acts for pay, as opposed to the “sex work industry” which refers to a broad range

of sexual services including pornography, phone, and Internet sex.

2. See generally SEX FOR SALE: PROSTITUTION, PORNOGRAPHY, AND THE SEX INDUSTRY (Ronald

Weitzer, ed., 2d ed. 2010) (providing an overview of the sex industry including chapters dedicated to

pornography, stripping, strip clubs, telephone sex work, legal prostitution, customers of prostitutes, sex

tourism, and sex trafficking).

3. Timothy J. Gilfoyle, Prostitution, in THE READER’S COMPANION TO AMERICAN HISTORY 875, 875–

77 (Eric Foner & John A. Garraty eds., 1991).

4. Id. at 876. The movement toward regulation and criminalization of prostitution had many sources:

moral, religious, familial, political, and gendered discourses all played an important part. However,

Gilfoyle argues that the overarching reason that prostitution was regulated and criminalized was

economic: “market forces, epitomized by the ‘popularization’ or ‘sexualization’ of commercial sex,”

caused a restructuring of perceptions of prostitution—from the view that prostitution was an institution

that provided both social and sexual services, to one in which prostitution offered only carnal or sexual

satisfaction. See Timothy J. Gilfoyle, Prostitutes in History: From Parables of Pornography to

Metaphors of Modernity, 104 AM. HIST. REV. 117, 130 (1999).

5. White-Slave Traffic (Mann) Act, ch. 395, 36 Stat. 825 (1910) (codified as amended at 18 U.S.C. §§

2421–2424). See Nicole A. Hough, Sodomy and Prostitution: Laws Protecting the “Fabric of Society,”

3 PIERCE L. REV. 101, 113 (2004).

6. Hough, supra note 5, at 113.

7. Nicloe Bingham, Nevada Sex Trade: A Gamble for the Workers, 10 YALE L.J. & FEMINISM 69, 69

(1998).

326 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. XXIII:325

sex industry, with an increase in the privatization of commercial sex services.

8

Internet technology has proliferated a rise in phone sex, Internet sex, and escort

services, allowing more Americans to purchase pornography and sexual services

within the private spheres of their homes or motel rooms.

9

Id.; see also Michael Chan, Catherine Leung, Chloe Ng & Cathy Chow, Regulating the Oldest

Profession in the New Economy: A Study of Online and Cyberprostitution in the Netherlands, the United

States, China, and Hong Kong, ONLINE CYBER L. (2004), https://web.archive.org/web/20170612

071305/http://newmedia.cityu.edu.hk/cyberlaw/gp22/intro.html.

However, while

increased privatization shields customers from police surveillance and arrest, it

has not led to safer working conditions for all sex workers.

Often, police do not consistently enforce prostitution laws except against the

most visible sex workers—street sex workers, women of color, transgender work-

ers, and immigrants.

10

See S.F. Task Force on Prostitution, Final Report (1996), http://www.bayswan.org/1TF.html (last

visited Oct. 31, 2021) (analyzing twelve months of prostitution-related arrest reports in San Francisco,

California, in the Law and Law Enforcement section); see also Juhu Thukral & Melissa Ditmore,

Revolving Door: An Analysis of Street Based Prostitution in New York City, URBAN JUST. CTR., 34–47

(2003), http://sexworkersproject.org/downloads/RevolvingDoor.pdf (last visited Oct. 31, 2021). For a

discussion of how criminalization and disparate enforcement affects sex workers, see Janet Halley et al.,

From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and

Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 HARV. J. L. & GENDER 335,

337–38 (2006). See also Mary Joe Frug, A Postmodern Feminist Legal Manifesto (an Unfinished Draft),

105 HARV. L. REV. 1045, 1054 (1992) (explaining how the “legal terrorization” resulting from a lack of

legal protection for sex workers contributes to their control and exploitation by pimps).

Sex workers who solicit customers on the street, as

opposed to other types of sex workers, typically have the lowest social status; are

disproportionately low-income; and are among the most vulnerable in the sex

industry to robbery, rape, murder, arrest, criminal prosecution, and police harass-

ment and brutality.

11

Weitzer, supra note 2, at 4; see also Alliance for a Safe and Diverse DC, Move Along: Policing

Sex Work in Washington, D.C. 17 (2008), https://dctranscoalition.files.wordpress.com/2010/05/

movealongreport.pdf (last visited Oct. 31, 2021) (citing a survey of street sex workers, among whom

90% had experienced violence such as rape, kidnapping or attempted kidnapping, assault, or robbery,

and almost 50% had been treated badly when attempting to obtain help); Anna-Louise Crago, Our Lives

Matter: Sex Workers United for Health and Rights, OPEN SOC’Y INST. 61 (2008), https://www.

opensocietyfoundations.org/publications/our-lives-matter-sex-workers-unite-health-and-rights) (citing a

study of New York City sex workers among whom 27% had experienced physical violence by the

police). For a discussion of the unique vulnerabilities to violence of sex workers at the intersection of

race, class, sexuality, and gender, see Darren Lenard Hutchinson, Out Yet Unseen: A Racial Critique of

Gay and Lesbian Legal Theory and Political Discourse, 29 CONN. L. REV. 561 (1997).

Some indoor sex workers—including low-income workers

of brothels and massage parlors—also face grave concerns, including isolation,

fear of police raids, and lack of support services.

12

The sex work industry is com-

plex and diverse, necessitating intersectional analysis on human rights, workers’

rights, criminal justice issues, public health priorities, and oppression related to

race, class, sex, gender identity, and sexual orientation. This complexity reveals

the inadequacy of analyzing sex work strictly within a legal paradigm.

Considered broadly, the sex industry includes legal and illegal activities.

Certain forms of sex work, such as child pornography, pimping, pandering, and

8. Weitzer, supra note 2, at 1.

9.

10.

11.

12. See Thukral & Ditmore, supra note 10, at 37–43.

2022] SEX WORK 327