What exactly is “consensual” sex work?
Why Sex Workers Say FOSTA Is Dangerous and Counterproductive
Workers tell RealClearLife the new law makes their job less safe and will increase sex trafficking.
Even before President Donald Trump signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), a new law that makes websites liable for their users’ speech, some were warning that it will only exacerbate the very problems it purports to solve.
“This legislation is a literal death warrant for many of the most vulnerable people in the sex trade,” Liara Roux, a sex worker and activist, told RealClearLife.
The intent behind the FOSTA bill was to combat sex trafficking, but some of the loudest critics of the legislation have been sex workers who say the bill is a clear sign that they are being misunderstood, misrepresented, and discriminated against.
Before and since the signing of the bill on April 11, the sex worker community has voiced its concerns that the law will not only affect workers’ livelihoods by shutting down websites where sex work was arranged—like the now-shuttered Backpage.com—but will put them in dangerous, or even deadly positions by forcing them back out onto the streets. And, they add, FOSTA will not actually address the underlying issues that cause sex trafficking because it relies on outdated stereotypes about trafficking and prostitution.
What is FOSTA?
The recently passed law proceeded through the House as FOSTA and through the Senate as SESTA. But both bills amended Section 230 of the Communications Decency Act (CDA) by placing legal responsibility for sex-work interactions upon online platform holders, rather than individual users. The bills passed as a package, so RealClearLife will refer to it as “the law” or FOSTA.
“What will be targeted, we hope if the law is implemented correctly, is bad-actor websites that profit from sex trafficking online,” said Taina Bien-Aime, the executive director of the Coalition Against Trafficking in Women, which supported the passage of FOSTA. She explained, “It didn’t matter how many times victims or nonprofits went to the police, they would say ‘Oops, sorry, Section 230 of the CDA.'”
The law passed with overwhelming support in the Senate, 97-2, and had the backing of well-known celebrities, like Amy Schumer and Seth Meyers, who starred in a PSA asking people to call their Congressperson and ask them to amend Section 230. The PSA said that the law should be changed so that children who are trafficked online “are protected with the same vigor the websites are protected with.”
Lisa L. Thompson, the vice president of policy and research at the National Center On Sexual Exploitation in Washington, D.C, said that there was a boom in the sex trafficking industry because sites like Backpage or the Craigslist personal section were protected by the CDA, and that the law is “about access to justice.”
“Despite a myriad of efforts to target these bad-actor websites, nothing was working because entities like Backpage could hide under the shield of the CDA,” Thompson told RealClearLife. “But at long last, you have a situation where trafficking victims will be able to sue those responsible for facilitating their exploitation, that was something that wasn’t happening.”
But some sex workers say the bill could have fatal consequences. Juliana Piccillo, a sex worker activist, filmmaker and writer, told RealClearLife that the law will force workers to move back to the streets, where they will “have to make snap, intuition-based judgments” on people they see. For more privileged workers, they may be tempted to dial back their own safety protocols to compensate for an expected dip in the number of clients.
“Whenever clients are scared and there are fewer of them, workers are required to adapt to survive—less screening, less ability to negotiate boundaries like safe sex, for instance,” Piccillo said in an email interview.
Roux made a similar point. She explained that, previously, online sex worker sites allowed people like her to choose how they would like to present themselves and allowed them to vet new clients to some degree, which they cannot do at a bar or on the street. Roux said that when clients reached out online, she could look for red flags, such as fake names, fake references, or if they get too pushy during the initial interactions. Sex workers have also used online platforms to share “bad dates” lists to help other workers avoid harm.
“Right now, everyone in the sex trade is being made less safe as our online advertising is removed, making it so we may have to see more dangerous clients without being able to tell if they are safe based on their initial communication,” said Roux.
Maxine Holloway, a Bay Area sex worker, artist, community organizer and sexual health educator, echoed that sentiment, saying that people don’t talk about how the Internet made sex work safer.
“It was a really big deal, being able to work online and screen your clients online, it really enabled workers to be independent and not rely on a third party for safety or screening or the facilitation of it all,” Holloway said to RealClearLife.
Historical ties between discrimination and sex trafficking
Concerns about human trafficking started with anti-slavery and anti-prostitution movements in the 1880s. These concerns have had a racialized and class-based history since the very beginning. Anna Szörényi, a professor of sociology, criminology and gender studies at the University of Adelaide in Australia, writes that the “white slavery” panic, or the “fear for middle-class women’s innocence and place in society,” is directly involved in the discourse surrounding human trafficking today.
“There is racial bias in the country where it skews towards the innocence
and naivety of white girls and the inherent promiscuity of girls of color, especially Black girls,” said Mx Raani Begum, who started doing sex work two years ago.
Black youth account for 62 percent of minors arrested for prostitution offenses. Ian Thompson, an ACLU legislative representative who focuses primarily on issues impacting the LGBTQ community, told RealClearLife that in his organization’s view, FOSTA “poses a threat to the lives and safety of sex workers, and, of course, sex workers are disproportionately LGBTQ and people of color.”
Most sex workers who spoke to RealClearLife for this story made a point to mention that black women, LGBTQ youth and other “young people living in economically underserved neighborhoods,” as Begum put it, are most at risk.
“A lot of people turn to sex work because they are pushed out of formal economies,” said Begum. “These folks often find themselves at the intersection of race, gender disparity, marginalized queer identities, economic disparities, disability, and health disparity. They turn to the informal economy such as sex work because it is accessible to them as a means of survival.”
In addition, Piccillo noted that most sex workers and sex trafficking victims end up with arrest records since prostitution is currently illegal in the United States. This criminal history, in turn, limits options for the rest of their lives.
“Most underage workers are runaways or throwaways [or are] living in homes where mental illness, violence and or poverty are issues,” Piccillo said. “It breaks my heart to see this happening now, because teens who might be apprehended in a trafficking bust aren’t getting what they need: safe living situations, shelter, food, et cetera—higher education and, most importantly, autonomy.”
Will FOSTA really fulfill its promise?
Lola, a community organizer with Survivors Against SESTA who wished to be identified only by her first name, says that the law will do the exact opposite of its stated goal.
“It has already directly led to trafficking,” she said. “SESTA took away the platforms that people trading sex used to survive and stay safe. Pimps have been texting and calling sex workers since SESTA passed, recruiting them because they know sex workers no longer have access to the sites that allowed them to work independently. And it’s working.”
Lola went on to say that effective anti-trafficking service providers, those that offer nonjudgmental, trauma-informed counseling, housing and other social services, are “woefully under-sourced.” Lola also said that courts in the justice system “need to do a better job of ordering restitution to trafficking victims.”
Alexandra Levy, who is currently an adjunct professor at Notre Dame law school but was previously an attorney in the anti-trafficking field, said that FOSTA is a “disaster” and said that shutting down websites is not actually good from an anti-trafficking standpoint.
“Those sites create more visibility and allow law enforcement, the good guys, to go and find victims and hopefully recover them,” she said to RealClearLife during a phone interview. She also says that contrary to what some believe, there is no credible evidence that the internet has caused an explosion in sex trafficking.
Levy said that the law also gives the impression that we have done something to fix the problem, and will therefore distract from real efforts to stop sex trafficking. In a post on Technology & Marketing Law Blog, Levy cites a study that suggests shuttering websites like Backpage might actually do more harm than good. The study, “Craigslist’s Effect on Violence Against Women,” performed by economists Scott Cunningham and Gregory DeAngelo and systems expert John Tripp, links online commercial sex markets with decreased murder rates, concluding: “Our analysis suggests that this reduction in female violence was the result of street prostitutes moving indoors and matching more efficiently with safer clients.”
Levy writes in her blog post that though the study has limitations, it should be “an important wake-up call to legislators who broadly assume—without evidence—that online platforms make the world a more dangerous place.”
Levy also told RealClearLife that if you think “all sex work is trafficking, in a sense it diminishes the harm caused to sex trafficking victims. If everyone is a trafficking victim, than no one is a trafficking victim in effect.”
Holloway, who has been working to organize meet-ups for sex workers in San Francisco since the law was signed, says that shutting down the platforms will do nothing to stop exploitation of sex trade.
“It maybe will move it somewhere else or push it somewhere else. That’s not what people being exploited need, they don’t need it to be pushed further underground,” she said.
Ian Thompson, from the ACLU, said that what it boils down to is that eliminating sex trafficking and protecting those who are victims of it is important, and Congress should address it. But the ACLU’s objection to FOSTA “is that they are doing it in a way that makes sex workers more viable to violence. We don’t see this as acceptable.”
According to Broadly, a last-minute letter was filed by the Department of Justice, in which assistant attorney general Stephen Boyd raised a “serious constitutional concern” with the legislation. He argued that the law would make it harder to prosecute sex trafficking sites “by effectively creating additional elements that prosecutors prove at trial.” He also recommended lawmakers clarify their “intent to target traffickers.”
Of course, sex work is not monolithic, and everyone has a different experience. But many of the sex workers RealClearLife spoke with said they were frustrated by the misconceptions about their work and the poor understanding of the distinctions between the sex trade and sex trafficking.
“We see the sex trade as a spectrum,” Lola explained. “People sell sex for a variety of reasons ranging from choice to circumstance to coercion. We want to prevent harm to everybody in the sex trade, regardless of why they are in it.” In an email interview, she said sex work opponents have spread “lies and fabrications” about sex trafficking under the guise of “saving us.” She added: “They have deliberately confused the public.
Or, as Holloway more bluntly put it: sex workers are always “a punchline in a dead hooker joke or a dead victim in SVU.”
Angelica Luna, a graduate school-educated sex worker in southern California said that these stereotypes make sex work harder. “A lot of people don’t believe that we could enjoy this type of work,” she said. “They think ‘Who would actually want to do this kind of work?’ They say that it is not actually consenting to it. I think people assume that.”
She’s right. Many people, including those who fought for the law, believe that the notion of consensual sex work is a fallacy, and that all sex work is abuse.
“The idea that sex (work) is consensual is false on its face,” said Lisa Thompson, from the National Center On Sexual Exploitation. “There is no such thing as safe prostitution, period. You are dealing with sex buyers who are incredibly dangerous individuals.”
She explained that, in her mind, when you pay someone for sex, you automatically have a consent problem because “if the person really wanted to have sex with you, you wouldn’t have to pay them to do it.”
Thompson, who has been working in this field since 1998, said that the signing of FOSTA was the “most significant moment in the effort to combat sex trafficking in a generation.”
CATW’s Bien-Aime agrees with the idea that sex work cannot be consensual because of the exchange of money, adding that you cannot actually screen for clients. “There is no Yelp for sex buyers,” she pointed out.
Bien-Aime said prostitution is inherently “violent,” since one person has the power and the money and the “desire to exercise his sexual fantasy over someone who has none of the above.”
“Within the #MeToo movement, we are talking about the harm that sexual violence and sexual harassment does to women and how it destroys their lives, and what it does to them and their communities,” said Bien-Aime, “but on the other hand we’re saying well, if the sexual harassers or rapist or whatever gives the woman $20 then it’s okay. Why, why is that okay?”
Luna, who felt empowered when she started doing sex work back in 2005, disagrees. She says she chose sex work as a profession because it gives her the freedom to run her own business and choose her own schedule.
“I get to choose who I spend my time and energy on and how I am compensated for it,” she explained to RealClearLife. “I basically get to capitalize on my sexuality and femininity.”
Luna said she feels like those who don’t see sex work as consensual thinks of its workers as weak individuals.
“It is disheartening to hear people say that we’re not even able to give consent with what we do over our bodies,” she said, “but at the same time it is okay to go on Tinder and hook up with someone for dinner and then have sex, that’s not immoral.”
Levy told RealClearLife that she thinks it is very important to recognize that sex work can be consensual, and said that there is no reason to call it “consensual sex work.”
“You would never hear someone say ‘consensual waiter’ or ‘consensual barista,'” she said. “Consensual wouldn’t be in front of a lot of professions.”
Multiple workers told RealClearLife they wished people understood that consensual sex work is work.
“I wish people knew that it’s work like any other work — good days, bad days, good clients, bad clients,” said Piccillo. “I wish they knew that we can say ‘no’ to our clients, set healthy boundaries and enjoy what we do. Also, they should know we have families, partners, children, hobbies and full lives—just like they do.”
Luna echoed that sentiment.
“That it can actually be an empowering type of work,” she said, when asked what she wished people outside the industry knew. “Empowering and enjoyable and rewarding [work].”
Sex work decriminalization: another, better solution than FOSTA?
Many sex workers argue that FOSTA does not address these underlying issues of sex work or exploitation. Many of those who spoke with RealClearLife endorsed lifting the stigma of sex work by making it legal as a better way to address and decrease trafficking.
“The best solution would be to decriminalize sex work,” said Piccillo. “If sex work existed in the light of day there would be little demand for pimps and traffickers—people could work in businesses or out of their homes. Clients wouldn’t be afraid of arrest and so would be easily vetted. Labor abuses could be investigated and prosecuted—just like in other industries.”
This would be a tough pill for many to swallow, Piccillo acknowledges.“Politicians would have to be willing to abandon the trendy, titillating appeal of a moral panic and instead address the underlying, and far more intractable, issues of poverty, mental health, immigration, et cetera,” she said. “These are not sexy and not easy to address.”
Lola echoed the concerns of other sex workers, saying that she does not feel like she has a spot at the table during conversations about these laws.
“We are experts on our own lives. We know what support we need in doing sex work safely or exiting sex work sustainably,” Lola said. “Once people realize policy around the sex trade is not the place to address their personal hangups about sex, that our bodies are not the battleground for their religious or moral ideals, then we can begin to have real evidence-based conversations about how to reduce violence and exploitation in our communities.”