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COMMENTARY
Might decriminalizing sex work have
unintended consequences on children?
Whatever one’s opinion regarding legalizing prostitution might be, and however
well-intentioned the two pieces of proposed legislation are, might they
inadvertently force sex work further into the shadows and thereby expose
children to exploitation?
Daniel Pollack, Helene M. Weiss and Amy Mathieu | January 4, 2022
Two different bills regarding decriminalizing aspects of sex work and sex
workers are winding their way through the New York State Legislature:
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the Stop the Violence in the Sex Trades Act, and the Sex Trade Survivors
Justice and Equality Act. Sex work, i.e., prostitution, is the exchange of
money or something else of value for sexual services. The exact New
York state definition can be found in Article 230 of the Penal Law. In
contrast, human trafficking can be defined as sex workers who are
coerced or forced to engage in sex work.
The U.S. Supreme Court, in Lawrence v. Texas, 539 U.S. 558 (2003), held
that consensual sexual conduct was part of the “personal and private life
of the individual” and protected by the Constitution. Years later, in Erotic
Serv. Provider Legal Educ. & Research Project v. Gascon, 880 F.3d 450, 454
(9th Cir. 2018), amended, 881 F.3d 792 (9th Cir. 2018), Judge Carlos Bea,
one of the judges on the panel hearing the California case, is quoted as
asking, “Why should it be illegal to sell something that it’s legal to give
away?”
Whatever one’s opinion regarding legalizing prostitution might be, and
however well-intentioned the two pieces of proposed legislation are,
might they inadvertently force sex work further into the shadows and
thereby expose children to exploitation?
The Data
According to the New York State Interagency Task Force on Human
Trafficking 2019 Annual Report, between 2007 and 2019 there were
1,541 confirmed victims of human trafficking. Of those, 1,377 were
female, 164 were male, 1,149 were 18 years or older, and 392 were
younger than 18 years old. Regarding arrests for prostitution, according
to data from the Federal Bureau of Investigation, in 2016, there were 627
arrests in New York state.
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The Proposed Legislation
Although the two pieces of legislation address the same topic, the bills
are markedly different. Both the Stop the Violence in Sex Trades Act and
the Sex Trade Survivors Justice and Equality Act are currently in the New
York Senate committee and have not yet reached the Senate floor.
Stop the Violence in Sex Trades Act (Senate Bill S6419). Julia Salazar
introduced the bill, while Robert Jackson, Velmanette Montgomery,
Zellnor Myrie, and Jessica Ramos co-sponsored it. This proposed
legislation would repeal §230, the part of the Penal Code that makes
prostitution illegal in New York. However, the bill does maintain criminal
charges for prostitution within a school zone, patronizing a person for
prostitution when the actor patronizes someone under the age of 18, and
permitting prostitution on an actor’s premises when it is committed in a
school zone or against a minor.
The Stop the Violence in Sex Trades Act would also facilitate the
elimination of prior criminal records for conduct that would have been
an offense under Section 230 of the New York Penal Code but would no
longer classify as an offense under the Stop the Violence in Sex Trades
bill. This Act proposes to decriminalize prostitution for any consenting
adult—the worker, the client, and the manager.
Sex Trade Survivors Justice and Equality Act (Senate Bill S6040). Liz
Krueger introduced this legislation, while Neil Breslin and Diane Savino
co-sponsored it. The Sex Trade Survivors Justice and Equality Act
proposes decriminalization of prostitution for those engaging in sexual
conduct with another person in return for a something of value, but does
not de-criminalize the other offenses related to prostitution (e.g., paying
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a fee to another person for engaging in sexual conduct or soliciting
another person to engage in sexual conduct for a fee).
The proposed legislation also adds a fine for any violation of the still
intact prostitution charges. The fine is based on the defendant’s net
taxable income and ranges from $50 to $1,000 for a first offense, and
$10,000 for a third offense. The bill proposes that these fines would be
split between the victim exploitation fund and an interagency task force
on human trafficking. Additionally, the bill provides that, for any person
who has been convicted of a prostitution violation that has since been
repealed by this act, the judge shall automatically vacate, dismiss, and
expunge the prior conviction.
Additionally, the Sex Trade Survivors Justice and Equality Act aims to
expand upon a statute passed by the New York Assembly in 2008—The
Safe Harbor for Exploited Children Act (Safe Harbor Act). The Safe
Harbor Act defines an exploited child as any person under the age of 18
who has been subject to sexual exploitation because he or she has been
the victim of sex trafficking or has engaged in prostitution. This law
provides that in any criminal proceeding against a minor for prostitution,
that minor is presumed to be an exploited child and subject to
supervision rather than delinquency. The Sex Trades Survivors Justice
and Equality Act proposes to raise the age in the Safe Harbor Act to 24
rather than 18.
Inadvertent Effects on Children
When reflecting on the considerations for new laws relating to the
legalization of sex work, consideration must give given to the collateral
impacts such legislation would have on children. One of the most
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concerning side effects of the legalization of prostitution is the potential
for human trafficking crimes to become easier for perpetrators to
commit against children.
In 2012, researchers for the London School of Economics and Political
Science analyzed data from 116 countries to determine what effects
legalized prostitution may have on the inflow of human trafficking. The
results were clear. Countries with legalized prostitution are directly
associated with higher human trafficking inflows than countries where
prostitution is outlawed. Researchers further found that the scale effect
of legalizing prostitution undoubtedly outweighed the substitution
effect—in which legal sex workers are favored over illegal workers. On
the whole, countries with legalized prostitution were found to report a
greater incidence of human trafficking inflows.
Since the human trafficking “black market” is largely compromised of
women and children forced, coerced, or manipulated into prostitution,
these statistics obviously present a troubling reality for legislators in
New York and other states who are seeking to do good, but may actually
be creating a black hole of opportunity for nefarious criminals.
Indeed, models of decriminalization and legalization of prostitution see
an obvious rise the inflows of sex trafficking as the market fosters a
demand for the sexual exploitation of children. Although
decriminalization of prostitution is often justified by policymakers as a
way to deter organized crime in the sex trafficking industry, empirical
evidence suggests that legalization escalates the flow of children
trafficked and imparts a legitimate cover for criminal syndicates, while
simultaneously decreasing surveillance by law enforcement.
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Marci Hamilton, founder and CEO of CHILD USA, an interdisciplinary
think tank to prevent child abuse and neglect comments, “CHILD USA is
deeply concerned that the decriminalization of sex work will create even
more danger of sex abuse for adolescents and teens. As we know from
recent sex trafficking schemes, traffickers traveled with female victims of
abuse from ages thirteen to mid-twenties.” Hamilton continues: “Some of
the girls looked older than their age, but others did not. No one
questioned these traffickers regarding the presence of young girls, and
victims have suffered. Decriminalization would add a layer of proof
problems for prosecutors fighting child sex abuse. Consider a scenario
where child sex traffickers could claim they thought the victims were all
sex workers over 18. They could then claim they had no intent to
sexually abuse a child and, therefore, avoid liability. The same scenario
could occur with a single perpetrator as well: ‘She looks over eighteen,
and I gave her money and gifts in exchange for sex.’ If sex for pay with an
adult is decriminalized, child abusers who lure children with money and
gifts, could raise issues that cast doubt on the accused’s intent to commit
a crime against a child. Such prosecutions could be reduced to two facts:
The survivor’s appearance and the payments, instead of validation for
the child victim bravely coming forward.”
While the legislature is focused on passing laws, local district attorneys’
offices and police precincts must be prepared for the swift consequences
of decisions being made in Albany. Indeed, no systemic progress can be
made towards curing the issue of decriminalizing sex work without
discussing the inextricably interwoven world of human trafficking and
the unintended consequences this may have on our children.
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Daniel Pollack, MSW, JD is a professor at Yeshiva University’s School of
Social Work in New York. Contact: dpollack@yu.edu. Helene M. Weiss is
an associate at the Marsh Law Firm in New York, and special professor of
law, Maurice A. Deane School of Law, Hofstra University.
Contact: heleneweiss@marsh.law. Amy Mathieu is an associate at the
Marsh Law Firm in Pennsylvania. Contact: amymathieu@marsh.law.