Criminalizing Sex Work to Combat Trafficking: Rhode Island Considers the Wrong Solution to the Wrong Problem

The State of Rhode Island seems poised to take a significant step backwards on its legal treatment of both sex work and trafficking when legislators resume their session this fall. Local advocates expect that lawmakers will reconcile two bills, House Bill 5044A and Senate Bill 0986A, both of which would institute criminal penalties for consensual commercial sexual exchanges which take place indoors. Failing that, the Mayor of Providence, David N. Cicilline, wants to issue an Executive Order that would do the same when the City Council reconvenes in September.

 

In the early 1980s, Rhode Island criminalized virtually all sex outside of marriage. That changed when a lawsuit was filed by the sex workers’ rights organization COYOTE (Call Off Your Old Tired Ethics), on the grounds that the statute was overbroad and discriminatorily enforced against women engaged in sex work. In their haste to amend the statute to bring it into compliance with the federal Constitution, Rhode Island legislators inadvertently cut out provisions specifically criminalizing solicitation, leaving only the language criminalizing street-based prostitution. No one noticed for about 20 years, while arrests, prosecutions, and convictions for indoor prostitution continued.

A few years ago an enterprising defense attorney started successfully moving to dismiss charges relating to consensual commercial sexual exchanges taking place indoors, on the grounds that such conduct was not, in fact, illegal under the Rhode Island law. Since then, there have been increasingly vocal calls to recriminalize indoor prostitution.  Up until recently, such efforts were largely unsuccessful. This year, the issue gained traction following an assault of a Rhode Island woman by Phillip Markoff, dubbed the “Craigslist killer.” Before breaking for the summer, the state House and Senate passed two different bills, both of which would criminalize all forms of prostitution, regardless of where it takes place.

Advocates for the legislation claimed that it is absolutely necessary to criminalize all forms of prostitution in order to fight trafficking in persons. 

“Criminalization of those you seek to help is not the answer,” responded Dr. Penelope Saunders of the Best Practices Policy Project in a letter opposing the legislation.  The letter went on to state:

 

 In our experience, the criminalization of prostitution forces women, men and transgender [people] who engage in commercial sex to the margins, away from service providers and advocates who could help them. The Move Along report released in 2008 [by D.C. based organization Different Avenues] http://www.differentavenues.org/MoveAlongReport.pdf found that laws against prostitution prevented these communities from accessing assistance from the police even in extreme situations of rape and physical violence. Unfortunately when sex workers went to the police to receive help, the pervasive stigma and discrimination bolstered by laws prohibiting prostitution meant that police officers often dismissed these calls for help, failed to respond appropriately or at times arrested those in need of assistance.

 

The Sex Workers Project http://www.sexworkersproject.org, a New York City based organization which has provided legal and social services to scores of trafficking victims over the past seven years, concurred in a memorandum submitted to the Rhode Island Senate:

The reality is that such a measure is likely to cause severe harm to victims of human trafficking by subjecting them to repeated arrest, incarceration, and retraumatization, without increasing the likelihood of locating, identifying, or assisting trafficking victims.

Proponents of the legislation repeatedly claimed that, in the absence of a state law criminalizing indoor prostitution in Rhode Island, law enforcement’s hands are tied, and they are denied the tools they need to fight trafficking or protect minors in prostitution. In reality, existing federal and state anti-trafficking laws, as well as existing criminal provisions against kidnapping, extortion, assault, rape, and indentured servitude, give state and federal law enforcement and prosecutors a panoply of tools to pursue those who harm people who are engaged in prostitution without collateral damage to victims of trafficking.

After all, labor trafficking can be - and is - prosecuted without criminalizing picking tomatoes, domestic work, or waiting tables in a restaurant. Federal anti-trafficking law also prohibits and severely punishes inducing a minor into prostitution, even where no force, fraud or coercion is used, regardless of the status of state laws.

Some claimed that police need to be able to arrest trafficking victims in order to be able to get them away from traffickers and help them. Law professor Ann Jordan, Director of the Program on Human Trafficking and Forced Labor at American University Washington College of Law points out that blanket arrests of people engaged in prostitution in the hopes of encouraging trafficking victims to come forward and testify against their traffickers has the effect of using a blunt instrument where careful, well-informed surgical strikes are needed.

"It is a weapon we wouldn’t dream of using against any other victim – for instance, we would never argue that we need legislation that allows us to arrest victims in order to stop domestic violence."  The purpose of the criminal law, Jordan says, is to prosecute criminals, not to twist victims’ arms into recognizing their victimization. Steven Brown, legislative counsel of the ACLU of Rhode Island agrees: “It is a cruel public policy that forces trafficked women to trade one set of bars for another,” he says.

In his article Sex Trafficking: Identifying Cases and Victims, published by the National Institutes of Justice Journal, Robert Moossy, Director of the Human Trafficking Prosecution Unit in the Civil Rights Division of the United States Department of Justice, advocates focused, in-depth investigations of suspected trafficking operations, not indiscriminate arrests of potential victims. According to Moossy, the fight against human trafficking requires the voluntary cooperation of victims, obtained by building trust over the long term and offering much needed support to overcome fear of retaliation by traffickers, and by addressing the circumstances that render victims vulnerable to coercion.

The findings of SWP’s most recent human rights documentation project, Kicking Down the Door: The Use of Raids to Fight Trafficking in Persons, are consistent with these trafficking experts’ experiences. One of the primary findings of our report was that focusing on enforcement of prostitution statutes to address human trafficking has led to the identification of very few victims of trafficking into prostitution. Even more disturbingly, it can contribute to further traumatizing and isolating them. Trafficked women reported that they were repeatedly arrested, in some cases up to ten times, in police raids on brothels and other sex work venues, convicted of prostitution, and even sentenced to jail without ever being identified as trafficked. Their experiences were corroborated by interviews with service providers who had worked with hundreds of trafficking victims over the years.

Law enforcement personnel interviewed for SWP’s report described difficulties gaining the trust of people arrested as part of anti-prostitution efforts, and noted that they were often not good witnesses in the prosecution of their traffickers. This is certainly consistent with the experience of the Providence Mayor’s “outreach” team, which has not successfully identified or assisted a single trafficking victim during raids on spas and brothels. As one law enforcement agent put it:  “The nature of the crime and the nature of the victims make raids not effective. What level of evidence do you need? You need a victim to be willing to open up and tell you.”

A service provider made the point more bluntly, “it’s incongruous to think that you would open up after being handcuffed.” SWP’s experience, and that of other service providers, is that trafficking victims are identified after months of building trust in the offices of social service agencies providing supportive counseling, not immediately following arrest in a police station under interrogation and the threat of criminal charges, deportation, or both.

Much has been made of the fact that the House Bill would allow people who have been trafficked to assert an affirmative defense to prostitution charges. However, Jordan points out that the availability of an affirmative defense is not a suitable answer to the concern that the proposed legislation would lead to arrests of trafficking victims:

 

Proving trafficking or another crime would become the woman's responsibility, which she would have to assume right after she is arrested…[when] she is most likely to be afraid, unsure and unable to speak clearly and honestly. Who would help these women collect this evidence? The vast majority of the women will be represented by public defenders who have very limited capacity and time and little funding to mount a lengthy and complicated defense based on trafficking. Most prostitution cases are moved quickly through the system and most public defenders spend very little time with their clients and build the kind of trust required for a victim of trafficking to disclose her situation. Thus, it is highly probable that the overwhelming majority of victims of trafficking would be arrested and prosecuted multiple times for prostitution under the proposed bill without ever being recognized as victims.

The Senate bill, while not as draconian as the house bill, still imposes hefty fines, ranging from $250 to $1,000 – which, as the Brennan Center for Justice at NYU points out, creates additional obstacles for people trying to move past a criminal conviction.

Once the notion that legislation criminalizing indoor prostitution was required to address trafficking in persons was largely debunked in the media, the real motivation behind the bills, and particularly the House legislation, became apparent – punishing women who engage in prostitution. However, in the end, neither piece of legislation is likely to have much of an impact on the incidence of prostitution. As Jordan says:

 

Many women who engage in prostitution do so for reasons of economic insecurity or substance abuse. They would not legally qualify as trafficking victims but may qualify as victims of any number of other crimes. The bill would saddle these women with a criminal record, cause them to forfeit their limited assets, and go into debt to the state, all of which would have the effect of making it even more difficult for them to leave prostitution and find alternate employment. Women in prostitution need nonjudgmental support and assistance, not arrest detention and prosecution.

 

The Rhode Island Chapter of the National Organization of Women agrees, emphasizing that prostitution is “a complex, social and political issue that cannot be solved by increasing rates of incarceration for the prostitutes.” Josephine Martell, RI NOW’s legislative chairperson explained

 

We wish to reduce the unnecessary incarceration of sex workers that this bill proposes, because we believe that this actually increases the likelihood that they will return to prostitution.

 

There is little question that criminalization of prostitution decreases choices available to people engaged in sex work rather than increasing their options to leave the industry or a trafficking situation. SWP’s research indicates that the vast majority of individuals engaged in prostitution do so for survival or to meet economic needs.

Fines and asset forfeitures only further entrap women in the very dire economic straits that so often motivate them to voluntarily engage in prostitution or which render them vulnerable to trafficking or coercion in the first place. As the ACLU of Rhode Island notes, under the asset forfeiture provisions of the proposed legislation:

 

…women are likely to lose whatever little money or property they have if they are arrested, making any efforts to turn their lives around even more difficult.

 

Additionally, once saddled with a criminal record, sex workers have fewer options for legal employment, and can be shut out of public housing, evicted from private housing, lose custody of their children or be denied immigration status, further increasing their vulnerability to abuse and trafficking. In short, being arrested for prostitution increases the likelihood that people will be pushed by circumstance or coerced into continuing to engage in prostitution as their only option for survival.

Currently, 25% of women incarcerated at the state correctional facility for misdemeanor offenses are there on prostitution-related charges. According to the Family Life Center of Rhode Island, reforming RI’s prostitution laws would reduce the RI female prison population by at least 15 percent. A report released by the FLC last month concluded that “the state could save half a million dollars in law enforcement and incarceration costs by not arresting and incarcerating people for working as prostitutes.” Groups like Rhode Island NOW argue that these funds could be used much more effectively for social services and education that increase the options available to women currently engaged in sex work. “The idea is by taking a different stance instead of a purely punitive one that costs lots of money and is essentially throwing money down the drain, that you can invest that money in social programs that would address all the different problems that people are talking about,” said Mimi Budnick of the advocacy group Direct Action for Rights and Equality.  Brown concludes:

If the legislature wants to seriously address prostitution, it should address poverty, cuts in the education budget, a lack of affordable housing and a shortage of mental health and addiction treatment services…

Much of the impetus for the bill has arisen from a concern that Rhode Island is the only place in the U.S. “outside of a few counties in Nevada” to have eliminated criminal penalties for some forms of prostitution. However, in this respect, Rhode Island finds itself on the cutting edge of a growing trend towards recognition that arrests of sex workers ultimately help no one. As Ronald Weitzer, a Professor of Sociology at George Washington University in Washington, D.C. and author of Sex for Sale: Prostitution, Pornography, and the Sex Industry (Routledge Press) puts it in an op-ed published in the Providence Journal,  “increased criminalization is not the answer.” In fact, Dr. Weitzer states:

 

Rhode Island’s two-track policy regarding street and indoor workers — where those indoors are not subject to arrest — is a model for other states, and many police departments already follow this policy informally. 

By continuing with this enlightened approach, Rhode Island would by no means stand alone. For instance, New Zealand decriminalized prostitution in 2003.

 

Nor would maintaining the status quo turn Rhode Island into a haven for sex trafficking. A government commission in New Zealand found no link between the decriminalization of the sex industry and human trafficking. 

In fact, the United Nations Human Rights Commission Trafficking in Persons report for 2008 notes that the incidence of international trafficking in New Zealand is “modest.”

Rhode Island legislators’ concern for victims of trafficking is laudable. But they should examine successful approaches to human trafficking rather than repeat the mistakes of the past by penalizing its victims. If Rhode Island is serious about combating trafficking in persons, Jordan makes the following recommendations:

A more cost-effective, targeted approach to the issue would be to ensure that state law includes (1) trafficking into forced labor, slavery, servitude and debt bondage in order to ensure that people trafficked into farms, factories, homes, streets, brothels and other sites are protected, (2) state-funded services for victims so that NGOs can provide the type of support discussed by Moossy for safe and healthy survivors, and (3) ample funding and training for law enforcement to be able to carry out the type of investigations recommended by Moossy.

 

Hopefully, when Rhode Island legislators come back in session after the summer break they will find the courage to go forward, not backward, in the fight against human trafficking by strengthening state anti-trafficking legislation rather than rushing to judgment and enacting legislation that would expand penalties for prostitution that will ultimately have the effect of punishing victims of trafficking and other crimes, and pushing them further from help.