On October 19, the U.S. Ninth Circuit Court of Appeals began hearing oral arguments on a constitutional challenge to California’s anti-prostitution law 647(b). The case, ESPLERP v Gascon, challenges the criminalization of sex work in California. If things go according to the plaintiff's plan, the case has the potential to protect the health and safety of many vulnerable sex workers in the state.
ESPLERP argues that California’s anti-prostitution law “unfairly deprives adults of the right to private consensual activity, criminalizes the discussion of such activity, and unconstitutionally places prohibitions on individuals’ right to freely associate.” The case’s plaintiff is the San Francisco-based group ESPLERP, or the Erotic Service Provider Legal, Educational and Research Project, whose stated mission is to "empower the erotic community and advance sexual privacy rights through legal advocacy, education, and research.”
As Carol Leigh, a sex worker and longtime advocate, once told SF Gate, “The real issue is, the more prostitution is criminalized, the less recourse prostitutes have, and the more they are forced to rely on an exploitative underground, on people who are basically capitalizing on their vulnerability.”
At present, with no due law to protect sex workers from violence, workers in the industry are physically vulnerable to both unknown clients and aggressive police targeting and intimidation (such as the sex trafficking scandal in nearby Oakland, Calif.). Police are also more likely to arrest underage boys engaged in sex work, even when there exists the opportunity to refer these youths to social services.
Leigh started working as a sex worker in the late '70s. But her advocacy in the community became even more personal in 1979, after she was raped by two men. In Leigh’s case and many others, the criminalization of her profession meant she had no ability either to turn in the two men or to seek other legal recourse. Stories like Leigh’s pose foundational questions to whose safety is being protected under the criminalization of prostitution.
In 1996, Leigh contributed to a San Francisco task force charged with studying prostitution, which recommended social and legal reforms. The task force argued that the "current prosecutorial response does a great deal of harm but little good. It has not solved the quality of life concerns voiced by neighborhood residents; it has cost the city millions of dollars;” and, “it deprives residents of positive services which would ameliorate the problems.” The task force argued for the establishment of sex worker food and drug treatment programs and for law enforcement to take seriously the crimes committed against sex workers.
Meanwhile, research on legalized sex work outside the U.S. could offer new perceptions and windows into the industry of consensual erotic services, as well as the economies and spaces it navigates.
Marlene Spanger’s work is one of the few ESPLERP espouses on its website. Her research follows the working lives of 14 Thai sex workers in Denmark, where prostitution is legal. She argues that mainstream representations of women she knows have been divided between gross subjugation and illusions of an uncompromised feminism, while their experience doesn’t corroborate either.
As she says, “Some of [the women] prefer to work at a massage parlor rather than cleaning corporate buildings at four in the morning. The massage parlor offers better working hours as well as a sense of community.”
Spanger’s work highlights the economic systems that are just as exploitative as the massage parlor itself, and perhaps gives another reason for their legalization in the U.S. As ESPLERP states, “Every person, including erotic service providers [...] must be enfranchised to basic human rights such as the right to legally work in the profession of one’s choice.”
Some experts fear that decriminalizing sex work could lead to an increase in sex trafficking. In some cases, however, the criminalization of consensual sex has allowed the court to prosecute trafficked victims, and trafficked children have been treated as criminals despite federal law classifying anyone under 18 years of age a victim.
In all, the criminalization of sex work in California has resulted in misdirected money on expanded police power and forcing sex work into unsafe secrecy. Until recently, the carrying of condoms could be used as evidence of prostitution, transforming safe sex into a legal risk and putting sex workers’ lives and health at risk.
While consensual sex work has remained discursively and physically omitted in much of the U.S., many countries outside of the U.S. have legalized it or changed criminal responsibility to clients of sex work. As of 2016, 49 countries have legalized prostitution and 12 have limited legal rights in law. Countries like the Netherlands and Australia have become lauded models, lifting bans on brothels, implementing mandatory health and safety inspections, and arguing that the criminalization of sex work puts the public health at risk.
Already ESPLERP’s case has left progressive groups polarized, with all sides claiming to protect victims of the sex industry. Congresswoman Kamala Harris is a co-defendant in the case, while human rights groups like the ACLU and Lambda have each filed an amicus on behalf of ESPLERP. In 2015, Amnesty International put forward a resolution to decriminalize sex work.
Each debate should not undermine the experiences and lived realities of sex workers, a portion of which ESPLERP effectively represents. One could also hope that the representation includes the voices of those who have been victims of sexual trafficking, demystifying and clarifying the relationship between the legalization of sex work and cases of trafficking. Undoubtedly elements of the case could be rightly contested, especially by some victims and families forced into the dehumanizing world of sex trafficking. Though every account gives equal reason for better, not outdated, litigation. If so, advocates should give nuanced weight to the word consensual. In all cases, it is certain that all audiences will be listening to the ESPLERP case results.