FOSTA/SESTA May Put Sex Workers At Risk

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Collateral Damage
New legislation may put sex workers at risk
by Larry Buhl

As a variety of laws at the local, state and federal level are being passed, ostensibly to crack down on sex trafficking, sex worker advocates and allies are sounding the alarm, saying sex workers will be the collateral damage.

In early April, President Trump signed a bill combining the Senate’s Stop Enabling Sex-Trafficking Act (SESTA) and the House’s Fight Online Sex Trafficking Act (FOSTA)—which makes online platforms liable for content uploaded by their users. Both bills passed by an overwhelming bipartisan majority.

Even before the president signed it, online platforms that sex workers used to advertise their services voluntarily blocked access from the United States or shut down completely.

In April, feds seized website Backpage.com and charged its founders with ninety-three counts of money laundering and facilitating prostitution. TNA and MyRedBook, both sites where sex workers advertised for clients, were also shut down. Craigslist took its personals section offline, saying it could not prevent postings of sex workers or possible sex traffickers on the site. So far, nobody was charged with human trafficking.

Sex worker advocates say that these laws are vague and conflate, either intentionally or unintentionally, sex trafficking with sex for pay with both adults agreeing to the terms—in other words, simple prostitution. SESTA criminalizes “promoting” and “facilitating” prostitution without clearly defining those terms, advocates say.

Advocates also say the crackdown on online sites will lead to collateral damage by increasing the risk of bodily harm and disease transmission. These sites were not only used for advertising and procuring sex services, they were a barrier between sex workers and clients and a way to negotiate safer sex practices.

Sex work and trafficking policy researcher Kate D’Adamo explained how taking negotiations for consensual sex for pay offline can put sex workers’ safety at risk.

“You have to use vague language and hope things go well when you go into a private space. That negotiation time goes down fast. Before maybe you negotiated for condom use, and now you can’t.

“Then you have to go to a remote and isolated place not knowing whether they’ll use a condom, not knowing if you’ll make your money or even if that person is safe or not.”
D’Adamo also pointed out that trans people of color are the most at risk. “They are most policed for prostitution-related crimes; they would refuse to take condoms because they didn’t want to get arrested, and that was true if they were working or not working. You have to hope there’s a 24-hour CVS or that the clients have condoms on them.”

Johanna Breyer, the co-founder of St. James Infirmary, a San Francisco peer-based occupational outreach service run by sex workers, confirmed that she’s being inundated with calls from people who are “in a frenzy” about the implications of FOSTA/SESTA.

“In the first weekend after the law passed, we saw a threefold increase in sex worker outreach in the districts we serve,” Breyer said. “And lately we’ve noticed a significant increase in police presence.” She said she didn’t know whether that police presence was directly attributable to FOSTA/SESTA or not.

Fortunately, San Francisco just passed immunity from prosecution for sex workers who report violence to the police. But Breyer and others worry that not only will more sex workers be coerced into not using condoms, but also outreach organizations that provide condoms, like St. James Infirmary does, could eventually be prosecuted for promoting or encouraging prostitution.

Kristin DiAngelo, a trafficking survivor and Executive Director of the Sacramento chapter of the Sex Workers Outreach Project (SWOP), was alarmed about a recently failed California state bill, SB 1204, intended to expand the definition of “pandering,” but would have left it up to cops to determine what ‘inducing’ prostitution means.

“Our group distributes condoms, lube, and lists of potential predators with the knowledge that sex workers will use them,” DiAngelo said. “But [SB 1204] would say we are encouraging and inducing prostitution. It would make what we do illegal.”

In late April SB 1204 failed in committee due to lack of support, but sex worker advocates say that if such a bill could pass in supposedly liberal California, restrictions on their industry could happen anywhere.

Tara Coccinelle, a trans woman and inactive sex worker said that cops in Sacramento, where she lives, and in many other cities, can stop a person for simply leaning on a parked car and check to see how many condoms they have. “And they use that as justification for arresting you and charging you with manifesting prostitution,” Coccinelle said. “The law punishes people for preventing transmission of STDs and HIV.”

D’Adamo said that there has been one upside of FOSTA/SESTA: community organizing. “Across the country we are seeing sex workers and (advocates) connecting and getting fired up.”


Larry Buhl is a multimedia journalist, screenwriter, and novelist living in Los Angeles. Follow him on Twitter @LarryBuhl.