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Student Blog Series: Restructuring the Prosecution of Prostitution

Posted: March 21, 2022

Across the United States, criminal justice stakeholders have historically viewed sexually exploited persons as criminals as opposed to victims. Consequently, persons in prostitution feel that they are unable to turn to law enforcement for help out of fear of arrest and prosecution. Therefore, many are left with few resources to escape their continued exploitation.

Testimonials by survivors depicted in The Life Story portray the large gender disparities that exist in the arrests and prosecution of those in the sex trade. Unfortunately, it is common for law enforcement to arrest exploited women and girls while sex buyers walk free. This disparity is even larger for women of color and transgender women. Women and girls, however, are not the only ones victimized by the sex trade, all genders can be victims of trafficking.

The sex trade is a market-based system that relies on the forces of supply and demand. A primary issue in the prosecution of those within the sex trade lies in the overcriminalization of supply, rather than focusing on the demand. Prostitution would not occur without buyers of sex, which is the demand that drives the market. Although all US state’s laws criminalize both supply and demand in the sex trade, they are discriminatory in practice. Individuals exploited in in the sex trade are arrested for an intent to sell, while buyers must overtly discuss the exchange of money for a sex act in order to be arrested. These laws have made it easier and more cost-efficient for police officers to focus those being bought and sold for sex acts, leading to monumental disparities between the number of sex buyers and victims of the sex trade being prosecuted.

Traffickers often target vulnerable populations, who have access to few resources to begin with. These vulnerable populations may have recently experienced migration, substance abuse, or homelessness. Victims of the sex trade should not be criminalized for their exploitation, however they are being prosecuted and convicted, leading to a criminal record. For a victim of the sex trade, a criminal record can be debilitating. Housing, employment, and child-care become nearly impossible to acquire, pushing victims back into the sex trade. Additionally, with few repercussions from law enforcement, buyers are not deterred from buying sex and the demand remains consistent.

Although improved legislation, such as the adoption of Safe Harbor and Vacatur laws, can help address the overcriminalization of persons exploited in the sex trade, states still have a long way to go to address inequality, starting with the adoption of Equality Model inspired legislation. The Equality Model is based on a law passed in Sweden in 1999.  As such, the Equality Model centers on restructuring the criminal justice system by decriminalizing those who are bought and sold for sex, and focuses on the criminalization of sex buyers and sex traffickers. The Equality Model consists of four key elements: (1) decriminalization of the prostituted person, (2) criminalization of sex buyers and facilitators with a commitment to treating buying sex as a serious crime, (3) a public education campaign about the inherent harms of prostitution, and (4) funded, robust, holistic exit services for victims of commercial sexual exploitation.  The Equality Model also aims to provide support and resources to victims by focusing on rehabilitation and social services.

Those who have been sexually exploited should not be criminalized for their exploitation, and the adoption of Equality Model guided legislation is only the first step. Below are several ways in which you can bring awareness to this issue and help to take steps toward positive change:

  1. Listen to survivors’ stories: Hearing first-hand accounts of the impact the sex trade can increase awareness for the best ways to help and support sexually exploited persons.
  2. Volunteer: Ask local or national anti-trafficking organizations how you can best support them. The CSE Institute is one of many organizations that conducts research, educates individuals and groups with the skills and knowledge that they need to improve the legal system’s responses to sexual exploitation, and engages with the survivor community. The institute promotes victim-centered, trauma-informed multidisciplinary collaboration and education and technical assistance to trafficking responders.
  3. Use your voice: Reach out to representatives in your community and ask what they are doing to address these issues.

This piece is part of our first-year law student blog series. Congratulations to author Michaela Kelly on being chosen!

All views expressed herein are personal to the author and do not necessarily reflect the views of the Villanova University Charles Widger School of Law or of Villanova University.

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