Sex worker activists (who want the sex trade to be treated like any other work) and prostitution abolitionists (who want to see it disappear entirely) don’t agree on much, but they do on this: Giving people charged with prostitution a felony also gives them a criminal record that makes other work almost impossible to find, thus trapping them into selling sex in perpetuity.
And now, with eight states handing down felony charges for prostitution -- where nonviolent, mostly female prostitution offenders are serving in state prison – a battle to lessen criminal penalties has been joined by an unlikely ally. Conservative lawmakers, looking at price tags, are also receptive to changing the way we see – and treat -- people working in prostitution.
The latest example of this shift to view people in prostitution as victims rather than criminals is last week’s passage of a bill removing the felony penalty in Illinois -- which has some of the harshest prostitution laws in the country. The legislation sailed through the Illinois Legislature, after a decade of work by End Demand Illinois, a coalition that wants to see prostitution eliminated. The highest penalty for selling sex in the state will now be a Class A misdemeanor.
“There are very, very few crimes, in my view, that exist in the criminal code, that you can truly say in this instance, the perpetrator is likely as much a victim as they are a perpetrator,” said Illinois state Sen. Dale Righter, a Republican and former prosecutor, when the bill was being debated. “People who would disagree with that would say, ‘there’s a notion of personal responsibility here. They decided to do it.’ And you know, in the strictest of legal terms, there’s no doubt that that’s true. But the situations that most of these young ladies find themselves in are unlike any situations that I bet any of us have encountered, and I hope none of us ever have to encounter.”
Texas, not exactly known for its leniency to offenders, also came close to eliminating its felony penalty this year. (A bill made it out of committee but wasn’t voted on, and there is still felony prostitution in Arizona, Florida, Idaho, Indiana, Michigan and Missouri.) "It's nuts that we've got this many prostitutes in prison, people that we're not afraid of, but we're just mad at," the state’s Senate Criminal Justice Committee Chairman John Whitmire told the Austin American Statesman last year. "By locking them up, we're not fixing the problem — we're just spending a lot of money incarcerating them, warehousing them, when we could be spending a lot less getting them treatment so they can get out and stay out of this business."
Prostitution remains the only crime in which more women are arrested than men. (That includes both arrests for selling sex and for purchasing it.) Prostitution arrests happen on the streets -- in sweeps or in response to neighborhood complaints -- in raids on establishments thought to be promoting prostitution, and through sting operations conducted through sites like Backpage. Sex worker advocates have criticized such “end demand” campaigns for partnering with the criminal justice system, which they argue further marginalizes people in the sex trade, but Lynne Johnson, policy and advocacy director at the Chicago Alliance Against Sexual Exploitation, said the alliance had been key to removing the felony penalty.
“Both police and prosecutors are on the front lines of watching prostitution, how it works on the street. They see the desperation of the people in prostitution, they came to recognize that the practice of habitual arrest and rearrest was not working, and that folks are in need of specialized services and are in need of more intelligent responses,” Johnson told Salon.
It’s slowly becoming the consensus that prostitution arrests are a revolving door rather than a deterrent. A 2007 study conducted by the Illinois Criminal Justice Information Authority found that women who were released from the Illinois Department of Corrections with sex offenses, the vast majority of them with prostitution charges, were the likeliest to be arrested again.
There is no felony upgrade for men who are arrested for soliciting sex. Illinois does have a felony patronizing prostitution charge on the books, but convictions under it in the two years it’s existed numbered in the double digits. At the same time, 127 people were admitted to the Illinois Department of Corrections in 2012 on felony prostitution convictions, and hundreds more were in local custody on lesser charges.
End Demand campaigns take their inspiration from Sweden, which in 1999 banned the purchase of sexual services, but not their sale, arguing that prostitution was essentially violence against women. In other words, arrest men who buy sex, not whoever they're buying it from. But unlike in the United States, prostitution was never criminalized in Sweden and the handful of other Nordic countries that followed its example, and those countries have a robust suite of social services to offer people leaving prostitution. Eliminating the felony penalty for prostitution in one state doesn't exactly make a Swedish model, but it's that much closer.