Around the country, the tide is turning on criminal justice issues, and Americans are demanding that we take a smarter approach to criminal justice. Eighty-five percent of voters agree that the main goal of the criminal justice system should be rehabilitation. Ninety-one percent of voters state that prosecutors should prioritize reducing unequal treatment within the criminal justice system. Locking people up, asking for more penalties and prosecuting behind a closed curtain is simply not going to work anymore.
That’s why the race for San Diego County district attorney is so important, and why the traditional approach to prosecution deserves closer scrutiny. Interim DA Summer Stephan, who’s running for election in June, doesn’t see any meaningful difference between sex work, or prostitution, and sex trafficking. In doing so, she and other prosecutors in California conflate sex trafficking with sex work and are confusing the public in what seems an attempt to inspire moral outrage.
Sex trafficking involves the involuntary or coerced involvement in the sex trade, and failing to acknowledge the differences between the two can lead to dire consequences for trafficking victims and sex workers alike. Anti-trafficking laws that conflate sex work with sex trafficking have forced sex workers into “safe houses” and rehabilitation programs against their will. These initiatives have prevented sex workers from seeking safe working conditions because they are forced underground to avoid the trafficking label. That, in turn, forces already desperate sex workers into even more desperate economic conditions when they are prevented from working.
During a two-year study with sex workers, I observed that sex workers felt comfortable working cooperatively with police officers when the police opted not to arrest sex workers and to treat sex work as if it were decriminalized. Similar findings have been observed in New Zealand, where sex work is decriminalized.
While treating all sex work like sex trafficking is well-intended, it diverts resources from human trafficking prevention efforts and funnels resources into securing low-level prostitution prosecutions. It increases the stigmatization of actual sex workers and makes them less likely to go to law enforcement when they have encountered a violent client. It is a signal that there is always something wrong with sex work, and sex workers will be less likely to work with the district attorney’s office if they fear prosecution because they do not fit into the trafficking victim narrative.
The conflation of sex work and sex trafficking also reduces individuals, often women, into a victim status in order to comply with a notion of womanhood tied to sexual purity that is compliant with dominant morality. A woman who chooses to take an alternative, often difficult path, for her family by becoming a sex worker is dismissed as a victim incapable of the choice. Many sex workers enter the industry because they face limited economic options and difficult life circumstances. Yet many of them are able to provide for their families and live a lifestyle that would otherwise be unavailable to them. Like many women who enter the workplace, they face difficult choices and risky situations. But they do the best that they can, and to paternalistically label them as victims with no regard for their own voices about whether they chose to enter their line of work or not is damaging. It creates a psychic harm that disempowers women.
The distinction between sex work and sex trafficking is important because confusing the two has led to the misinterpretation of data. An often-cited study by the University of San Diego and Point Loma Nazarene University indicates that the average age of entry into “sex trafficking” in San Diego is 16. This study is often misinterpreted to mean the average of entry into the sex trade in San Diego is 16. The difference is importance because sex trafficking is going to skew younger because underage prostitution is by definition considered “sex trafficking.” So the average age of entry into prostitution in general may be 22, while the average age of entry into sex trafficking is 16.
Moreover, the results of conflating sex trafficking with sex work can be perverse. I’ve seen instances in which a woman recommends that a newly homeless friend join her on a prostitution transaction. When caught, that woman can be charged as a sex trafficker. If they live together, she can be charged as a sex trafficker who operates a brothel. This can create a revolving door of arresting sex workers for minor prostitution transactions when law enforcement should instead be focused on eliminating sex trafficking syndicates.
Stephan has said she would “very rarely” prosecute a sex worker, but the point remains: Women, in the law enforcement worldview she shares, are being held at the mercy of a prosecutor’s label. Neither sex workers nor sex trafficking victims should have to fear the threat of prosecution and multiple arrests.
We need a district attorney who would build partnerships with sex workers so they feel comfortable coming forward to the district attorney’s office when they observe genuine human trafficking without fearing more prosecutions, not one who judges their choices. Getting “tough” on prostitution means more jail, more prison time and more of the same. It’s time to start doing what works. It’s time for change.
I. India Thusi is an assistant professor at California Western School of Law who combines anthropological methodology and legal analysis to examine the policing of sexuality and gender. See anything in there we should fact check? Tell us what to check out here.