You can’t just decriminalize sex work without regulations

In June 2019, state Sen. Julia Salazar proposed the first piece of legislation in New York history to completely decriminalize sex work.

If this bill – developed in consultation with sex worker advocacy organizations and progressive legal groups – becomes law, it will no longer be a crime for consenting adults to exchange sex for money in New York. Nor will it be illegal to manage, promote sex workers or support them in their work – as long the business relationship is voluntary. Child prostitution and human trafficking would remain illegal, as would soliciting sex in a school zone.

While this would remove a number of sources of harm to sex workers, it would leave a system that is ripe for capitalist exploitation by mostly male business owners and risk turning New York into a sex tourism mecca.

Instead, learning the lessons of other states and countries that have experimented with decriminalizing sex work, the bill should be amended or supplemented with strict regulations that would determine the contours of a safe, decriminalized sex market that empowers sex workers and lets them keep the proceeds of their labor.

Women overwhelmingly bear the brunt of criminalization: 98% of the 1,413 people charged with prostitution-related offenses in New York City over a one-year period were cisgender or transgender women, according to a recent study.

Salazar said that the objective is to protect sex workers from criminalization, trafficking and exploitation. “The best way to address those problems comprehensively is to decriminalize sex work,” Salazar said in an interview with City & State. “What that means as far as our bill is removing anything in the criminal code that is related to prostitution.”

There are a number of reasons why decriminalization would help sex workers. The illegality of sex work puts sex workers at risk. They can’t go to the police for help if a client beats or robs them. In fact, many sex workers report being victimized by the police. Women who have been sexually trafficked may continue working against their will because they’re afraid of being charged as prostitutes. A criminal record from sex work can make it harder to leave the industry and pursue employment or education. Finally, sex workers could organize and advocate for themselves more effectively if they didn’t fear being arrested.

Salazar and her supporters are clear: They want decriminalization rather than legalization. Decriminalization means removing criminal and civil penalties for sex work. The sex industry would be subject to the generally applicable laws, but there would be no sex work-specific regulatory framework.

By contrast, legalization means decriminalization and implementing sex industry-specific regulations. The regulatory frameworks at play are as diverse as the jurisdictions that have legalized sex work. Regulations might call for licensing and inspections, impose limits on when or where sex work can take place, or guarantee certain rights and protections specific to sex workers. For example, prostitution is legal in parts of Nevada, but it’s not an unrestricted free market. Legal sex work is limited to registered sex workers operating out of licensed brothels in counties that have a population of less than 700,000, and those counties must also allow the practice.

Salazar and her allies oppose regulations because they worry that it will become a kind of shadow criminalization in which sex workers are penalized for failing to follow the regulations, rather than for selling sex per se. “Legalization that establishes licensing or regulations is often harmful and exclusionary to the people who are most vulnerable in the sex industry,” Salazar said.

The state senator has a point. Nevada’s legalized brothels do nothing to help sex workers on the streets of Las Vegas, most of whom couldn’t get a job at the Moonlite Bunny Ranch even if they wanted to. One of the biggest problems facing New York is the fate of undocumented sex workers. A Nevada-like system wouldn’t help people who aren’t legally allowed to work.

Nevada’s illicit sex industry dwarfs its brothel industry. Chuck Muth, government affairs counsel for the Nevada Brothel Association, estimates that there are about 300 women working out of legal brothels on any given day. State officials estimate there are 30,000 full-service sex workers in Las Vegas alone, where prostitution remains illegal. Sex workers who ply their trade outside of a brothel still face arrest and prosecution. The Las Vegas Metropolitan Police Department made more than 2,700 prostitution arrests in 2016.

Legalization does not necessarily empower women. In Nevada, sex workers have to submit to the stringent rules of a brothel if they want to sell sex legally. Women are usually confined to the brothel for weeks or months at a time, even when they’re not working. They’re forced to pay for their rent and food at rates set by the brothel owner, and required to hand over a large chunk of their earnings to the house. The women are independent contractors. There’s no sex workers union and no collective bargaining. While all of Nevada’s brothel-based sex workers are women, 13 of the state’s 15 brothel owners are men, according to Muth.

If Salazar's bill becomes law, what's to stop a Times Square strip club owner from blacklisting dancers who refuse to expand their job description to include intercourse?

And there’s a risk that the wrong kind of regulations empower management over employees in other ways. Heavily regulated industries tend to favor big businesses that have the wherewithal to navigate complex regulatory frameworks. Licenses and attorneys fees alone can cost tens of thousands of dollars. In Germany, the trend has been toward large brothels with low-cost, high-volume business models, including “all-you-can-fuck” package deals that instill a sense of entitlement in the clients and exhaustion in the sex workers. German corporate brothels have repeatedly been caughttrafficking people. Why would they resort to trafficking if sex work is legal? Brothels traffic women for the same reason farmers exploit undocumented migrants: because the jobs are so bad that many people won’t do them.

While the existing regulatory schemes sound bad, it could be worse if there were no limits at all. If all the laws against prostitution were simply wiped off the books, we could start seeing sex work hedge funds that specialize in investing in New York sex-based businesses, just like we’ve seen cannabis hedge funds crop up as more states decriminalize marijuana.

If Salazar’s bill becomes law, what’s to stop a Times Square strip club owner from announcing that, from now on, his establishment is offering much more than lap dances in the VIP room? Can he blacklist dancers who refuse to expand their job description to include intercourse? Salazar’s bill would amend the multiple dwelling law that currently prohibits brothels. Could New York see megabrothels like the 12-story Pascha in Cologne, Germany? Do we want to deal with an influx of boorish sex tourists, like the ones who have exhausted the patience of famously tolerant Amsterdam? How about losing housing units not only to Airbnb but to pop-up brothels?

Former sex crimes prosecutors Alexi Ashe Meyers and Rebecca Zipkin wrote in City Limits that full-scale decriminalization “means allowing pimping, brothel-owning, and the buying of sexual services to become big business in New York City, at the expense of some of the most marginalized members of our community.”

Salazar, who frequently speaks to the exploitation of workers in the legal economy, acknowledged this risk. “There is definitely a risk of sex workers being exploited … whether it’s venture capitalists, corporate business owners or just by a boss who isn’t legally accountable to the employee,” Salazar said. “That’s the risk that we are concerned about with legalization.”

So New York needs a law that both legalizes sex work and prevents exploitative corporate dominance of the sex industry. Not a heavy-handed regime like Nevada’s that primarily benefits wealthy brothel owners, but a flexible, locally crafted set of regulations that serves the needs of New York’s sex workers.

New Zealand’s regulatory framework provides a model. New Zealand didn’t just strike out the laws against prostitution and hope for the best; it actively planned what kind of legal sex industry it wanted to have.

For example, the nation’s historic Prostitution Reform Act required licenses for larger brothels and mandated safer sex practices. However, New Zealand’s law also carved out a zone free of red tape for ordinary sex workers: Up to four women can work together out of the same premises, with no need for a license, provided that each controls her own income.

Legalizing commercial sex raises thorny issues about consent, which must be anticipated and addressed. New Zealand’s law codifies a sex worker’s right not to perform unwanted sex acts and that a sex worker can still change her mind even after she and a client agree to a particular sex act. The client can’t force himself on her and claim she consented because she initially agreed to it. The law also guarantees that no one will lose public benefits for refusing to take a job in the sex industry. It’s also a crime to force someone to engage in sex work, not just by force or the threat of force, but also by withholding drugs or threatening to accuse someone of being in the country illegally.

New York should definitely include those kinds of provisions as well.

However, New Zealand’s system is far from perfect. Decriminalization allowed investors with capital to form large brothels that compete mercilessly with independent sex workers on price and the range of sexual services offered.

Sabrinna Valisce was a sex worker in New Zealand during prohibition and after decriminalization. She has since become an anti-decriminalization activist. Her grim first-person account of the degrading conditions in large corporate brothels provides a blueprint of what New York’s regulatory framework should seek to avoid. According to her, corporate brothel workers are independent contractors who pay for the privilege of using the facility, but they are also micromanaged in their demeanor and self-presentation with an endless series of fines for infractions ranging from heels that are too short to running behind schedule. Sex workers are constantly pressured to perform sex acts outside their comfort zone, she recalled. The profit motive rules all.

New York’s regulations should be crafted in consultation with sex workers and public policy experts. A first step would be to eliminate the laws against prostitution and loitering for the purpose of prostitution, but leave in place the law that criminalizes profiting from another person’s prostitution. This change would give sex workers the freedom to negotiate paid sex with consenting adults, but keep out third parties who want to profit from their labor and prevent the creation of corporate brothels.

A later step might be to usher in a legal structure for sex worker-owned cooperatives. The state Legislature should legalize brothels only if they are owned by the people who provide the sex. The law should include safeguards to make sure that every sex worker retains control over her own rates and working conditions, and membership should be open to all, regardless of immigration status. The law would not force sex workers to operate out of cooperative brothels – but the benefits, including security and profit-sharing, would be attractive to many.

Nevada’s brothels are a $50 million-a-year business. New York’s legal sex trade would likely be worth many times that amount. The majority of that wealth should go to the women who do the work, not the rich investors of some sex work hedge fund. Making sex work a well-paid occupation would sever the link between trafficking and prostitution. Sex work should not become another crappy McJob.

If New York is to decriminalize or legalize sex work, it should be based on a model that keeps big business out of the sex industry and safeguards the dignity and independence of sex workers.