Decriminalizing the sex trade

Human rights advocates are in general agreement that sex workers and sex work should not be criminalized. Criminalizing sex work marginalizes sex workers and others involved in the trade and prevents them from seeking or providing help when they might need it. It also makes sex workers vulnerable to abuse by police and other criminal justice actors, who often exploit the illegality of their work for their personal benefit. The over-policing of sex workers and their customers only exposes sex workers to potential victimization, pushing them into further secrecy by pushing them into the criminal justice system. Decriminalizing sex work should be a priority to ensure the safety and wellbeing of sex workers. Where many forms of sex work, especially prostitution, remain criminalized, it need not remain a police priority.

The Department of Justice (DOJ) and the Centers for Disease Control and Prevention (CDC) should:

• “Develop, disseminate, publicize, and promote guidance to state lawmakers and prosecutors to adopt legislation and policies that would eliminate the practice of using possession or presence of condoms as the basis of criminal prosecutions or sentence enhancement,” consistent with the resolution of the Presidential Advisory Council on HIV/AIDS, DOJ and CDC.

Local and state legislatures should pass legislation that:

• Decriminalizes all aspects of sex work.
• Provides a “comprehensive ban on confiscation, use, or mere possession or presence of condoms as evidence of any prostitution-related offense.”
• Prohibits the profiling of people suspected of engaging in sex work including LGBTQ persons.
• Creates heightened accountability for police officers who abuse their authority to engage in sexual harassment and sexual assault.
• Prohibits the arrest of individuals who are survivors of trafficking.
• Eliminates the use of condoms as proof of intent to solicit or engage in prostitution.
• Grants a vacatur remedy for sex workers as well as survivors of human trafficking, which adheres to the following model guidelines:
  • Ensure that “[o]fficial documentation” of trafficking creates a presumption but is not required;
  • Ensure that the remedy does not require the survivor to undergo “rehabilitation” to receive the remedy;
  • Require confidentiality provisions that protect the survivor’s identity;
  • “Be the most complete remedy possible under the law” eliminating any possible negative legal consequences of the conviction;
  • “State that the Court must vacate the convictions and dismiss the accusatory instrument if an individual meets the elements;”
  • Permit court to take appropriate action to institute the remedy;
  • Be retroactive and allow for a remedy for older convictions;
  • Provide funding for “legal services attorneys to bring these motions;” and
• Ensure that all trafficking-related offenses include an element that requires coercion in order to find a party guilty of trafficking.
• Grant a similar vacatur remedy for prostitution offenses not involving trafficking.

Local police departments should:

• De-prioritize the policing of sex work;
• Avoid arresting individuals who may be survivors of trafficking;
• Implement reporting structures that allow sex workers to comfortably report police officer sexual harassment.