The Protection Paradox: Negative Impacts of Anti-Trafficking Legislation and the Criminalization of Sex Work on Women in the United States

^{*I would like to thank the New England Law Review v. 57 and v. 58 staff for their invaluable contributions. Thank you to my editors, Deyanira Gonzalez and Jocelyn Schafer, for your guidance throughout the writing process. And thank you to my mother and lifelong editor, Kathryn Adler, for your enduring inspiration and influence.}

Introduction

In April of 2018, President Donald Trump signed a bill that everyone seemingly was in favor of—a rare sight amidst the divisiveness of his presidency.¹ The “Allow States and Victims to Fight Online Sex Trafficking Act” (“FOSTA”) was designed to enable law enforcement and victims to seek criminal and civil redress against websites that hosted sex trafficking advertisements.² The bill passed the House almost unanimously; to the casual observer, it might have seemed unconscionable to oppose.³ But sex work and anti-trafficking advocates alike warned that underneath its agreeable veneer, the bill posed serious risks to those working in the commercial sex industry.⁴ Less than two years after FOSTA’s passage, two things happened almost simultaneously: the COVID-19 pandemic swept across the world and the subscription-based social media platform OnlyFans exploded in popularity.⁵ While sex workers engaging in prostitution struggled to navigate the perilous landscape of the criminalized commercial sex industry in the wake of a global pandemic and the eradication of online resources,⁶ websites like OnlyFans launched some women into pseudo-celebrity status and opened the door to thousands of dollars in monthly earnings.⁷ As discourse around the commercial sex industry enters the mainstream, it is time to take a closer look at the treatment and perception of sex workers in the United States and its convergence with the battle against human trafficking.⁸

While individuals of all genders engage in prostitution, this Note will focus specifically on sex workers who identify as female.⁹ Furthermore, it is worth acknowledging the importance of language when discussing a highly stigmatized industry.¹⁰ Coined by activist Carol Leigh in the 1970s, ‘sex worker’ is generally preferable to the term ‘prostitute,’ as it creates separation from the pejorative history of the latter.¹¹ Sex work, however, is not limited to prostitution: it refers to all professions in the sex industry, from webcam girls to exotic dancers.¹² The term ‘pimp’ is commonly used to refer to individuals working with sex workers.¹³ ‘Third party’ is a more appropriate term for individuals adjacent to sex work transactions and can refer to agents, facilitators, and brothel owners.¹⁴ In this Note, the term ‘sex worker’ will be used whenever possible and will refer to those engaging in prostitution specifically, unless otherwise indicated.¹⁵> The term ‘sex work’ will be used whenever possible, but occasionally clarity or historical accuracy will require the use of the term ‘prostitution.’¹⁶ The term ‘third party’ will be used to refer to individuals adjacent to commercial sex transactions unless a more precise term is required.¹⁷

Part I of this Note will serve as an introduction to the commercial sex industry and the laws that regulate it. It will discuss the historical background of modern prostitution and introduce relevant legislation, including the recent FOSTA-SESTA package, which exposes website providers to criminal and civil liability for hosting content advertising prostitution or sex trafficking. Part I will then explore the competing arguments for and against decriminalizing sex work. Part II of this Note will identify the critical failings of the United States’ current statutory scheme regulating the commercial sex industry and how laws intended to protect victims of human trafficking have resulted in disproportionate harm to consensual sex workers. It will identify the importance of creative solutions in light of the current political climate. Part III of this Note will outline the shortcomings and dangerous impacts of the FOSTA-SESTA package and argue in favor of allowing sex workers access to online platforms. It will then recommend that the statute’s language be amended to limit its application only to content involving victims of coerced sexual exploitation. Part IV of this Note will argue that if the current criminalization model is to persist within the United States, reform is desperately needed to mitigate the risks it poses to sex workers. Using principles from immigration law as a model, this Note will propose and encourage the exercise of discretion in the criminal justice system as a way to make sex workers safer while combating human trafficking.

I. Background

A. History’s Oldest Profession: Then and Now

While clearly predated by man’s earliest vocations like hunting, farming, and shepherding, prostitution is commonly referred to as history’s oldest profession.¹⁸ Sumerian records from 2400 BC include references to temples where women would engage in both sacred and secular prostitution.¹⁹ The Code of Hammurabi, one of the earliest legal codes composed between 1792 and 1750 BC, references what some scholars have interpreted as houses of prostitution.²⁰ Evidence of prostitution is well documented throughout the Greek and Roman empires, and the rise of Christianity did little to quell commercial sex practices.²¹ Sex work flourished in the Middle Ages as brothels emerged throughout Europe, some of which served as a source of public funds.²²

In the United States, prostitution was largely unregulated throughout the eighteenth and nineteenth centuries.²³ But by the Progressive Era, a moral panic took root as rumors of “white slavery” spread across the newly industrialized nation.²⁴ The public was enraged by sensationalized stories of immigrants kidnapping young women and forcing them into sex slavery.²⁵ The Mann Act was born in response to this perceived threat to innocent white women and moral decency——despite the lack of evidence that these abductions were even happening.²⁶ The Mann Act criminalized the transportation of “any woman or girl . . . for the purpose of prostitution or debauchery, or for any other immoral purpose.”²⁷ Critics of the Mann Act have argued that the law has been predominantly used as a method of political sabotage or blackmail, and has acted as a vehicle for racism.²⁸

Today, numerous countries worldwide have implemented legalization and decriminalization frameworks aimed at regulating and safeguarding the commercial sex industry.²⁹ Legal models range from full legalization with government regulation; the ‘Nordic’ or ‘end demand’ model, where only the purchaser in a commercial sex transaction is subject to criminal penalty; and full decriminalization, which removes the criminal penalties for both sex workers and purchasers.³⁰ None of these models have been immune to criticism.³¹ Regulation of the commercial sex industry under full legalization requires sex workers to register with the government, implicating significant privacy concerns against the backdrop of a highly stigmatized industry.³² The Nordic model, by criminalizing purchasers, incentivizes rushed negotiations in secluded areas as clients fear police detection.³³ Decriminalization has been criticized for assuming that all sex workers choose to enter the profession voluntarily, and for potentially overlooking trafficking victims.³⁴ While nations grapple with the best way to regulate the commercial sex industry, it is becoming increasingly obvious that such measures will require the opinions and expertise of consensual sex workers and sex trafficking victims.³⁵

B. Contemporary State and Federal Regulation of the Commercial Sex Industry in the United States

1. Nevada’s Brothels and Rhode Island’s Experiment

Nevada is currently the only state with legalized prostitution, but this authorization is not without restrictions.³⁶ The Nevada legislature requires that commercial sex transactions take place inside licensed brothels; any form of street solicitation or sex work outside of a brothel is criminalized.³⁷

Additionally, rather than state-wide legalization, each county is given the choice of whether or not to allow the operation of brothels within its borders.³⁸ Even in counties where brothels are permitted, they are heavily regulated.³⁹ Some sex work activists have criticized Nevada’s brothel model by noting that it functions as an extension of the “pimp-prostitute” relationship, and strips sex workers of their autonomy by allowing the government to control “with whom, when, and where” commercial sex transactions take place.⁴⁰

Nevada was not always the only state with legal sex work in the modern era: albeit through a legal loophole, indoor prostitution was legal in Rhode Island for almost thirty years.⁴¹ In 1980, Rhode Island lawmakers set out to amend the State’s prostitution statute to downgrade the offense to a misdemeanor to speed up the conviction process, and update the language to evade claims that the law was unconstitutionally broad.⁴² In the process of doing so, the legislature unintentionally deleted the main provision criminalizing prostitution.⁴³ As a result, while street solicitation remained a misdemeanor, prostitution was technically legal so long as it occurred indoors.⁴⁴ The loophole went undetected for over two decades until a lawyer noticed it in 2003.⁴⁵ As the news of this unintentional decriminalization spread, the commercial sex industry in Rhode Island boomed.⁴⁶ Rhode Island’s sudden sex work influx presented the ideal environment for case studies, as researchers could easily compare data points from pre- and post-decriminalization.⁴⁷ One study revealed strong evidence that the decriminalization resulted in a reduction in reported rapes and incidences of gonorrhea.⁴⁸ But Rhode Island’s experiment was short-lived: the legislature re-criminalized indoor prostitution in 2009, only six years after the loophole’s discovery.⁴⁹

2. Federal Governance of the Sex Industry in the United States

Although regulation of prostitution is strictly within the domain of the states under the Tenth Amendment of the United States Constitution, the federal government is able to regulate the commercial sex industry in areas where it relates to an enumerated power.⁵⁰ Congress used the Commerce Clause to pass the Mann Act, asserting that the transport of a woman constituted “commerce among the states.”⁵¹ The original language of the Mann Act, however, quickly proved problematic: by criminalizing the transport of a woman for any “immoral purpose,” it effectively criminalized any premarital or adulterous sexual relationships that involved travel across state lines.⁵² The Mann Act has since been amended to limit its application only to the transport of an individual in interstate or foreign commerce “with the intent that such individual engag””e in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.”⁵³

The federal government also has the authority to criminalize human trafficking under the Thirteenth Amendment of the United States Constitution.⁵⁴ In order to combat sex and labor trafficking in the United States, Congress passed the Trafficking Victims Protection Act of 2000 (the “TVPA”), which created federal crimes prohibiting forced labor and sex trafficking.⁵⁵ The TVPA and its subsequent reauthorizations create criminal liability for anyone who knowingly benefits from a venture in which a minor “will be caused to engage in a commercial sex act,” or where any person will be caused to engage in a commercial sex act through the use of “force, threats of force, fraud, [or] coercion.”⁵⁶ In this context, a “commercial sex act” is “any sex act, on account of which anything of value is given to or received by any person.”⁵⁷

In 2018, two bills were signed into law that dramatically increased the scope of federal criminal liability in the commercial sex industry: the Fight Online Sex Trafficking Act (“FOSTA”) and the Stop Enabling Sex Traffickers Act (“SESTA”).⁵⁸ The FOSTA-SESTA package (“FOSTA” or “the Act”) came in the wake of the explosive Backpage.com (“Backpage”) scandal.⁵⁹ Backpage was a classified advertisements website primarily utilized for its adult section.⁶⁰ In the 2010s, state and federal investigations revealed that Backpage was complicit in hosting content that advertised victims of sex trafficking—many of whom were minors.<⁶¹ But any attempts to hold Backpage criminally or civilly liable were thwarted by the protections of Section 230 of the 1996 Communications Decency Act (“Section 230”).⁶² Section 230 immunizes website providers from liability for any content users post on their online platforms.⁶³ This provision, while crucial for promoting the unfettered development of the internet, prevented Backpage trafficking victims from seeking redress for their injuries.⁶⁴ FOSTA was originally intended to remedy that injustice by creating an exception to Section 230’s safe harbor provisions.⁶⁵ Upon being signed into law, FOSTA amended Section 230’s immunity provisions to exclude the enforcement of sex trafficking laws.⁶⁶ But FOSTA also created an additional exception that would allow website providers to be held liable for “promot[ing] or facilitat[ing] the prostitution of another person.”⁶⁷

Despite its noble intentions, FOSTA was immediately met with criticism.⁶⁸ Legal experts and internet freedom advocates warned that it would have a chilling effect on websites that hosted user-generated content and would lead to widespread censorship.⁶⁹ The United States Department of Justice (“DOJ”) voiced concerns that the bill was overly broad and presented potential constitutional issues.⁷⁰ Sex-workers and sex-trafficking survivors warned that it would expose sex workers to more danger by preventing them from vetting clients online, and by making it harder for law enforcement to detect online trafficking by pushing its facilitation to off-shore websites.⁷¹

C. The Great Debate: Competing Perspectives on Legalization and Decriminalization

1. Feminist Theory

At the core of the discourse surrounding the sex-work industry are two dichotomous perspectives: radical feminism and liberal/mainstream feminism.⁷² Radical feminist theorists classify all forms of commercial sex—both consensual and coerced—as violence against women.⁷³ Under the radical feminist lens, there is no voluntary prostitution.⁷⁴ A woman’s choice to engage in sex work is merely illusory, as that ‘choice’ is a product of a patriarchal capitalist society.⁷⁵ Radical feminists argue sex work is the ultimate manifestation of the subjugation of women, and the only way to cure this evil is to criminalize the solicitation and exploitation of sex workers.⁷⁶ Under this view, sex workers themselves, however, are victims and therefore should not be subject to criminal liability; instead, they should be offered resources to free themselves from “the cycle of prostitution.”⁷⁷

In contrast to the radical feminist view of sex work as a symptom of female oppression, liberal/mainstream feminists argue that sex work can be empowering and that the choice to engage in sex work is within a woman’s right to self-determination.⁷⁸ Many sex workers view their profession similar to any other job, and feel that the root of problems within the commercial sex industry is the stigmatization by society.⁷⁹ Liberal feminists disagree with the notion that the commodification of the human body can only be linked to a woman’s objectification; they argue that there are a multitude of professions that involve some degree of using one’s physical abilities for financial gain (e.g., modeling, manual labor, professional sports) that are not subject to the same scrutiny.⁸⁰

2. Research Linking Human Trafficking and Legalized/Decriminalized Sex Work

The claim that decriminalized sex work is directly correlated with increases in sex trafficking has long been heralded as the preeminent argument against legalization and decriminalization.<⁸¹ In the 2000s, President George W. Bush’s administration launched an anti-trafficking campaign that also targeted consensual sex work.⁸² The administration backed its anti-sex work policies by insisting that prostitution fuels human trafficking “by providing a façade behind which traffickers” could hide.⁸³ An extensive study published in 2012 linking decriminalized/legalized prostitution to higher rates of human trafficking (the “Cho study”) is often cited in support of this view.⁸⁴ The Cho study utilized reports from the United Nations Office on Drugs and Crime (“UNODC”), which provided data on incidences of human trafficking in 161 countries, to investigate the correlation between prostitution laws and human trafficking.⁸⁵ The Cho study reported that “[o]n average, countries where prostitution is legal experience larger reported human trafficking inflows.”⁸⁶ Against the backdrop of this data and the federal government’s strong stance on human trafficking, the relationship between sex work and sex trafficking has become a point of contention among human rights activists.⁸⁷

The Cho study, however, is not the “smoking gun” linking legalized sex work and human trafficking that many hold it out to be;⁸⁸ in fact, the researchers themselves cautioned against this interpretation.⁸⁹ The Cho study actually revealed two conflicting effects that legalizing prostitution had on incidences of sex trafficking.⁹⁰ While “the scale effect of legalized prostitution leads to an expansion of the prostitution market, [thus] increasing human trafficking,” it also resulted in a “substitution effect” where, as the supply of legal sex workers increased, the demand for trafficked sex workers decreased.⁹¹ While the Cho study did find some correlation between legalization and incidences of trafficking, the authors acknowledged that “the effect of legalization of prostitution on the international trafficking of human beings is theoretically indeterminate” as the scale effect and the substitution effect counteract each other with “unknown magnitudes.”⁹² Furthermore, the study relied on imperfect data points.⁹³ The Cho study was based on data from the UNODC’s 2006 report on human trafficking—which reported aggregate human trafficking figures but made no distinction based on the type of trafficking.⁹⁴ As a result, the researchers used data on all forms of human trafficking (including both sex and labor) as their dependent variable to test the impact of prostitution laws on sex trafficking.[men]Weitzer, supra note 93.[/mfn] This is especially problematic considering incidences of labor trafficking are consistently estimated to outweigh sex trafficking.⁹⁵

II. The Current Statutory Scheme Regulating Sex Work Has Failed Both Consensual Sex Workers and Victims of Human Trafficking

While criminalizing prostitution is posited as a way to protect women from violence and exploitation, the current criminalization model does exactly the opposite.⁹⁶ Research overwhelmingly suggests that criminalization, and the policing practices that come with it, are “associated with increased risk of sexual/physical violence from clients or other partners.”⁹⁷ Sex workers are often reluctant to report being victims of theft or violent crime out of fear of being faced with criminal charges themselves.⁹⁸

Criminalization in the name of public health is similarly unsupported.⁹⁹ Research indicates that criminalization substantially increases the rate of sexually transmitted diseases among sex workers.¹⁰⁰ In 2012, Human Rights Watch published a report on four U.S. cities where law enforcement officers used possession of condoms as evidence of prostitution to support criminal charges.¹⁰¹ Sex workers in these cities reported choosing not to carry condoms out of fear that they would be found during stop-and-frisks, and described incidents where law enforcement confiscated or told them to throw away their condoms.¹⁰²

Legislation like FOSTA is intended to attack the sex trafficking industry but instead creates more dangerous working conditions for sex workers.¹⁰³ When FOSTA killed off websites linked to human trafficking, like Backpage, it took valuable sex worker resources down with it.¹⁰⁴ Websites that sex workers used to vet clients, engage in safer online negotiations, and connect with other sex workers disappeared almost immediately.¹⁰⁵ When sex workers are stripped of their ability to source clients online, they “have fewer advance safety precautions in place, no ability to effectively pre-screen clients, and no way to ensure that they work in safe, secure locations.”¹⁰⁶

Against the backdrop of stark political polarization in the United States, the prospect of widespread decriminalization of sex work in the near future appears unlikely.¹⁰⁷ But while sex workers wait for legislative reform, they will continue to be subjected to violence and discrimination.¹⁰⁸ To allow women to be exposed to harm while the legality of their occupation hangs in the balance is simply unacceptable; intermediate solutions can and must be implemented.¹⁰⁹ Transforming the commercial sex industry does not have to be an ‘all or nothing’ endeavor—there are ways to make immediate and impactful changes that protect both sex workers and victims of sex trafficking.¹¹⁰ Implementing minor changes to FOSTA’s language and encouraging the exercise of discretion in the criminal justice system will create meaningful change in the commercial sex industry without requiring all fifty states to come to a consensus on appropriate legislation.¹¹¹

Analysis

III. FOSTA Must Be Amended to Allow Consensual Sex Workers to Use Online Platforms

A. Immediate Negative Impacts of FOSTA: Increased Difficulty Apprehending Traffickers

“In the fight against child sex trafficking, shutting down an epicenter like Backpage was a major victory, but one against a relentless foe that quickly unfurled new tentacles.”¹¹² Human traffickers, despite exploiting an estimated twenty-eight million victims worldwide, have consistently proven difficult to apprehend and convict by federal law enforcement.¹¹³ The Department of Homeland Security (“DHS”) maintains that combating human trafficking is one of its main objectives, and yet human trafficking investigations led by DHS’s investigative branch resulted in only 3,655 arrests and 638 convictions in 2022.¹¹⁴ Compare those numbers to the estimated 1,558,862 arrests for drug abuse violations in the United States in 2019, and questions begin to arise about how effective our trafficking investigation and apprehension procedures really are.¹¹⁵ The answer is: not very.¹¹⁶

As part of their evaluation of the DOJ’s enforcement efforts post-FOSTA, the United States Government Accountability Office (“GAO”) reviewed selected publications, federal criminal cases, online platforms, and data points on internet-based sex trafficking, and interviewed DOJ officials from 2014 through 2020.¹¹⁷ The GAO’s findings confirmed concerns that critics of FOSTA voiced prior to its enactment: threatening website providers with liability for the content published by their users made it even more difficult to track down online facilitators of sex trafficking.¹¹⁸ The report noted:

The current landscape of the online commercial sex market heightens already-existing challenges law enforcement face in gathering tips and evidence. Specifically, gathering tips and evidence to investigate and prosecute those who control or use online platforms has become more difficult due to the relocation of platforms overseas; platforms’ use of complex payment systems; and the increased use of social media, dating, hookup, and messaging/communication platforms.¹¹⁹

Prosecuting website providers under FOSTA’s criminal provisions requires proving that the providers “intended that their platforms be used to promote prostitution, and, in some cases, that they also acted in reckless disregard of the fact that their actions contributed to sex trafficking.”¹²⁰ Proving these allegations requires intensive evidentiary review that has become increasingly expensive, cumbersome, and time-consuming as these websites move offshore.¹²¹ FBI records indicate that the takedown of Backpage actually hindered investigators’ ability to identify sex traffickers and victims because law enforcement had developed a level of familiarity with Backpage, and the site was previously cooperative with information requests.¹²² While online platforms moved overseas following FOSTA’s enactment to insulate themselves from criminal prosecution, those selling sex domestically began using social media, dating apps, and online message boards.¹²³ Gathering information from these platforms can be especially difficult for law enforcement because of the level of anonymity, automatic deletion of content, and the constant emergence of new sites.¹²⁴ The GAO’s report also revealed that the DOJ has hardly used FOSTA to prosecute traffickers; in the three years immediately following the Act’s implementation, the DOJ brought only one case under the criminal offenses it created.¹²⁵ Prior to the exception FOSTA carved out in Section 230, federal prosecutors had successfully used racketeering and money laundering charges to hold online platforms responsible for facilitating sex trafficking, and they continued this practice even after 2018.¹²⁶

B. Immediate Negative Impacts of FOSTA: Disproportionate Harm to Sex Workers

The fears voiced by sex work activists have proven well-founded.¹²⁷ FOSTA’s passage simultaneously jeopardized sex-workers’ financial security by limiting access to online advertising mediums and increased their exposure to violence.¹²⁸ Dangerous and exploitative third-party managers have used the present circumstances to regain control over formerly independent sex workers.<¹²⁹ Clients that were previously blacklisted have also come out of the woodwork to harass sex workers, believing them to be vulnerable and desperate for clients.¹³⁰ The eradication of online platforms has also resulted in an uptick in street solicitation.¹³¹ In a survey of street-based sex workers, forty percent noticed an increase in the practice following FOSTA’s passage.¹³² Forcing sex workers off the internet and back outdoors is incredibly dangerous, as research shows violent crime rates are substantially higher with street-based sex work.¹³³

Under the current criminalization system in the United States, street-based sex workers are forced to keep their negotiations with clients brief due to the fear of police apprehension.¹³⁴ The advent of online advertising and facilitation allowed sex workers to fully negotiate costs and services and set boundaries before even meeting the client.¹³⁵ Online forums can also make clients behave better; message boards create a space for customers to share information and discuss best practices, and serve as the foundation for a “code of ethics in buying sexual services.”¹³⁶

Working online affords sex workers the autonomy they lack under the control of often abusive and exploitative third parties.¹³⁷ A sex worker advertising and conducting transactions online has more control over clientele selection and service pricing, and has the ability to vet clients through background checks or community feedback.¹³⁸ Unfortunately, the free websites used by those engaging in consensual sex work were some of the first to disappear in anticipation of and following FOSTA’s enactment.¹³⁹ FOSTA incentivized online platforms that didn’t immediately shut down to block anything that could be interpreted as “facilitating” sex work, pushing sex workers back into dangerous working environments where they risked discrimination, violence, and sexual assault at the hands of clients and law enforcement alike.¹⁴⁰

FOSTA’s attack on online sex work communities also curtailed harm reduction practices in which sex workers communicated with each other to share warnings about dangerous clients and exploitative third parties.¹⁴¹ Identity verification systems like VerifyHIM.com, which automatically scan a client’s name for social media accounts, criminal records, and prior reports by other users, were forced to shut down critical features.¹⁴² In the wake of FOSTA-induced resource shutdowns, sex workers reported engaging in more dangerous practices out of necessity.¹⁴³ A survey performed by Anti-Trafficking Review of sex workers in the United States revealed a steep drop in client screening practices following the passage of FOSTA.¹⁴⁴ Sixty percent of respondents in that survey reported having “to take on potentially violent clients to make ends meet following the enactment of FOSTA.”¹⁴⁵

In a separate study conducted by activist group Hacking//Hustling, sex workers surveyed after FOSTA’s passage reported increased economic instability and violence at the hands of clients following the breakdown of online sex work resources.¹⁴⁶ Ninety-nine percent of online respondents in that study reported that FOSTA did not make them feel safer.¹⁴⁷ Hacking//Hustling also asked sex workers to define FOSTA in their own words, to which one respondent replied: “[r]emoval of Section 230 from the Internet and a death sentence for me.”¹⁴⁸

C. FOSTA Need Not Be Repealed, Just Reworded

The original FOSTA package was intended to combat online human trafficking, so why is it targeting prostitution?¹⁴⁹ Vague language and the conflation of consensual sex work with coerced sex trafficking can create liability far beyond the individual sex worker.¹⁵⁰ Additionally, in direct opposition to FOSTA’s purported purpose of curbing human trafficking, researchers have found that the economic impact of FOSTA’s restrictions on consensual sex workers contributes to the poverty cycle, increasing workers’ vulnerability to human trafficking.¹⁵¹

Perhaps the most disappointing aspect of FOSTA’s enactment is the rarity with which it actually serves its intended purpose.¹⁵² In the two years following FOSTA’s passage, only one prosecution was brought under the criminal provision it created, and a negligible number of civil suits were successfully raised against online platforms facilitating sex trafficking.¹⁵³ While FOSTA has failed to bring meaningful redress to victims of trafficking, it has done an excellent job of making the commercial sex industry more dangerous for sex workers by reducing access to harm reduction devices and forcing workers back out onto the streets.¹⁵⁴

While proponents of FOSTA continue to assert that the law was intended to combat human trafficking,¹⁵⁵ its language makes no distinction between consensual sex work and trafficking.¹⁵⁶ Part of the problem with the act using the term ‘prostitution’ instead of ‘sex trafficking’ or ‘coerced sex acts’ is that there is no federal definition of prostitution, and the few cases from federal courts that have attempted to define the crime have failed to provide any meaningful articulation.¹⁵⁷ The United States Supreme Court in Cleveland v. United States simply stated, “[p]rostitution, to be sure, normally suggests sexual relations for hire.”¹⁵⁸ In United States v. Marks, the Seventh Circuit defined prostitution as “[t]he offering of the body to indiscriminate lewdness for hire.”¹⁵⁹ These definitions fail to clearly establish what conduct might be considered prostitution—“indiscriminate lewdness,” for example, could apply to any act of “[g]ross, wanton, and public indecency.”¹⁶⁰ Vagueness of this nature leads to uncertainty surrounding exactly what conduct is criminalized.<¹⁶¹

If FOSTA’s true objective is to provide victims of sex trafficking with a path to justice—and not merely to penalize consensual sex workers—its text should be amended to replace the term ‘prostitution’ with language more explicitly targeting coerced sex acts and trafficking.¹⁶² One way to accomplish this would be by aligning the Act’s language with that of the TVPA by including a specification that the subject sex act is coercive in nature.¹⁶³ The provision of FOSTA creating liability for online providers should be amended to replace the phrase “the prostitution of another person” with language more closely resembling the TVPA: ‘a venture in which a commercial sex act is induced by force, fraud, or coercion, or when the person induced to perform such act has not attained eighteen years of age.’¹⁶⁴ Doing so would allow sex workers to access the resources they desperately need while honoring Congress’s goal of bringing justice to those victimized by websites like Backpage.¹⁶⁵ This explicit language change would clarify the Act’s purpose and protect trafficking victims without doing so at the expense of sex workers’ safety.¹⁶⁶

IV. Discretionary Decision-Making in the Criminal Justice System as a Means of Keeping Sex Workers Safer and Combating Human Trafficking: Using Immigration Law as a Model

A. Discretion in Law Enforcement

1. Background

Law enforcement officers at all levels regularly exercise discretion in discharging their duties.¹⁶⁷ Some violators are guaranteed to slip past undetected.¹⁶⁸ And in that same sense, some violators will be noticed, but the law enforcement officer will nevertheless look the other way; maybe she too has been late for work and driven over the speed limit or forwent the crosswalk.¹⁶⁹ Police action necessarily involves some level of flexibility in decision-making and discretion, because any situation could involve infinite exigent or mitigating circumstances.¹⁷⁰ But discretionary decision-making is not solely attributable to the individual officer: the officer’s exercise of discretion is influenced by the department, precinct, and unit within which the officer is employed, as well as the specific context in which the police action is occurring.¹⁷¹ The level of discretion an officer may be afforded also depends on the gravity of the decision to be made: less serious decisions, like when to make a traffic stop, generally allow for more flexibility in discretion than decisions of greater significance, like when to exercise deadly force.<¹⁷² The acceptability of an officer’s exercise of discretion also varies significantly in the context of what laws are being enforced; we might be relieved not to see flashing lights behind us after traveling slightly over the speed limit, but we would probably be less pleased by an officer exercising their discretion to not arrest someone they know committed murder.¹⁷³

2. Broken Windows Policing

Broken windows policing is a prime example of law enforcement officers’ discretion in choosing what crimes to prioritize and whom to charge with those crimes.¹⁷⁴ Broken windows policing is supported by the belief that crime will decrease if offenses bearing “visual and physical signs of crime, such as graffiti, panhandling, and street prostitution” are eliminated.¹⁷⁵ This practice results in “a high volume of arrests . . . for low-level offenses,” specifically targeting “vice” crimes like prostitution.¹⁷⁶ The discretionary decision to target these crimes is necessarily followed by the decision of whom to charge.¹⁷⁷ In cities throughout the United States, the answer to that question is resoundingly people of color; in the context of sex work, specifically low-income women of color.¹⁷⁸ The focus on broken windows policing to “clean up the streets” resulted in some street-based sex workers moving online, but in the wake of FOSTA’s enactment, “policing is extended to online platforms, effectively, squeezing workers from both sides.”¹⁷⁹

B. Prosecutorial Discretion

1. Background

The American criminal justice system grants the government broad discretion in determining whom to prosecute.¹⁸⁰ The decision to prosecute is generally shielded from judicial review, and courts are reluctant to examine the basis of a prosecutor’s decision to bring charges in an effort not to undermine prosecutorial effectiveness.¹⁸¹ A prosecutor has similarly broad discretion in fulfilling her obligations as a law enforcement officer does.¹⁸² Prosecutors are tasked with deciding whether and what charges to bring, making bail recommendations, engaging in plea negotiations, and recommending sentences.¹⁸³ But her discretion is not unlimited.¹⁸⁴ Prosecutorial discretion is limited by the legislature’s power to define criminal offenses, promulgate sentencing guidelines, and set bail parameters.¹⁸⁵ The legislature may also allow for the evaluation of some prosecutorial decisions through post-conviction review. ¹⁸⁶

2. Current Exercises of Prosecutorial Discretion

Recently, murmurs across the country indicate that there may be a shift towards prosecutors exercising their discretion in determining whether or not to prosecute consensual sex work.<¹⁸⁷ In 2021, former Manhattan District Attorney Cyrus R. Vance Jr. announced that his office “would no longer prosecute prostitution and unlicensed massage.”¹⁸⁸ District Attorney Vance’s office indicated that they would “continue to prosecute pimps and sex traffickers, as well as people who pay for sex,” but would decline to prosecute sex workers themselves.¹⁸⁹ In doing so, Manhattan joined other cities, including Baltimore and Philadelphia, in choosing to combat exploitation “without punishing the people who for decades have borne the brunt of law enforcement’s attention.”¹⁹⁰ Also in 2021, Washtenaw County, Michigan prosecutor Eli Savit announced “his office [would] no longer pursue charges against adults who engage in consensual sex work.”¹⁹¹ Similarly to Manhattan, Savit’s office stated they would continue pursuing charges related to “human trafficking, violence and sexual assault that arise from sex work,” as well as the solicitation of minors.¹⁹²

C. Both Sex Workers and Trafficking Victims Are Harmed by Excessive Policing

1. Sex Workers: High Risk of Harm, Least Likely to Seek Help

As a result of frequent discrimination and mistreatment by the police—and the fear of being arrested on prostitution charges—sex workers are less likely to report crimes committed against them to the police.¹⁹³ Sex workers worldwide have a forty-five to seventy-five percent chance of facing sexual violence.¹⁹⁴ This rate is even higher for transgender and minority sex workers.¹⁹⁵ However, due to the stigmatization and discrimination that results from criminalization, sex workers who are victims of crime are frequently dismissed by law enforcement, allowing violent offenders to go undetected and unpunished.¹⁹⁶ Sex workers report being blamed when seeking help from law enforcement following assaults, and many forgo contacting the police altogether out of fear of being subject to arrest or investigation themselves.¹⁹⁷ A 2016 investigation of the Baltimore police department conducted by the DOJ revealed that officers frequently ignored reports of sexual violence made by sex workers.¹⁹⁸

Law enforcement’s singular view of sex workers as criminals also results in the denial of much needed support that could mitigate “the latent sources of prostitution.”<¹⁹⁹ The permanence of a criminal record and its impact on access to necessities, like housing and employment, make it almost impossible for sex workers to exit the profession, even if they want to.²⁰⁰ Sex workers convicted on criminal charges have reported obstacles in gaining and retaining employment due to their criminal records, as well as challenges surrounding immigration status, family law, social stigmas, and barriers to accessing education.<²⁰¹ One sex worker interviewed by researchers for a study on prostitution policing explained how she felt trapped in the commercial sex industry by her criminal record:

I felt I had no escape, I had no choice, this was it. I had been arrested so many times. So no one’s ever going to hire me. At that time, I didn’t have a diploma. I had nowhere to live. If I didn’t do [prostitution], I would have no way to get money for me to have somewhere to live. At that point, I’d burnt my bridges with my family because of what I was in, the lifestyle I was in.²⁰²

2. Accidental Arrest and Prosecution of Trafficking Victims

The harmful impacts of over-policing sex workers also extend to victims of human trafficking.²⁰³ Despite federal law enforcement’s frequent efforts to apprehend traffickers, a competent understanding of how to engage with victims of sex trafficking seems to have eluded law enforcement officers and the criminal courts.²⁰⁴ An extensive study conducted by the International Human Rights Clinic at USC Gould School of Law revealed that anti-sex trafficking operations consistently fail to protect trafficking victims, rarely result in successful prosecutions of traffickers, and are generally ineffective in actually preventing sex trafficking.²⁰⁵ The study also revealed that during these anti-trafficking operations, victims are not only frequently arrested on prostitution charges, but also subjected to physical and sexual abuse at the hands of law enforcement.²⁰⁶ In a criminal justice system that runs on maxed-out caseloads and accelerated processing, sex trafficking victims arrested on prostitution charges often remain unidentified as victims until it is too late.²⁰⁷

Broken window policing directly feeds into this problem: jurisdictions that engage in arrest strategies prioritizing high volumes of low-level offense arrests (like prostitution charges) leave criminal courts incapable of exploring the unique circumstances attendant to each individual case.²⁰⁸ As a result, human trafficking victims are arrested and brought up on prostitution charges without ever being identified as victims.²⁰⁹ State rules of criminal procedure can provide victims of sex trafficking with post-conviction relief, but this remedy does nothing to prevent the root of the problem: law enforcement branding sex trafficking victims as criminals.²¹⁰

Another factor leading to the accidental criminalization of trafficking victims is that victims may be unaware that their experiences constitute sex trafficking, either because their “only experience with law enforcement has been their own arrest for prostitution activity, or [because] they do not self-identify as victims of trafficking.”²¹¹ Law enforcement officers and prosecutors often encounter difficulty in these investigations because victims may be reluctant or unable to cooperate—especially without the aid of social services.²¹² The obsessive focus on catching traffickers over supporting victims results in trafficking victims being asked by law enforcement to “cooperate” before they even have the chance to process what is happening to them.²¹³ When a defendant is identified as a potential trafficking victim, the prosecutor determines the appropriate time frame within which the victim must “cooperate,” and if the victim is unable to do so in that time, they are sent through the criminal justice system as defendants without another thought.²¹⁴ If this apprehension-centered approach persists within our criminal justice system—instead of a community-based, collaborative approach—sex workers and trafficking victims will continue to suffer while their abusers remain free.²¹⁵

D. Using Principles from Immigration Law as a Template for Reducing the Harms of Criminalization: Deferred Action and Immunity

1. Discretionary Policing and Prosecution: Applying Deferred Action Principles to Criminal Law Enforcement

In 2011, Immigration and Customs Enforcement (“ICE”) Director John Morton issued a memorandum instructing ICE employees and officers to more closely evaluate the attendant circumstances of a noncitizen’s presence in the United States (the “Morton Memo”).²¹⁶ The Morton Memo advised ICE officers to exercise discretion in order to focus the use of limited resources towards “the agency’s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system.”²¹⁷ It also instructed ICE officers and agents within the Enforcement and Removal Operations (“ERO”) and Homeland Security Investigations (“HSI”) to exercise discretion in deciding when to institute removal proceedings against noncitizens, and advised ICE attorneys to do the same in deciding when to move forward with removal proceedings.²¹⁸ The Morton Memo was intended to shift ICE’s focus away from noncitizens who did not pose a threat to public safety, especially those with familial, educational, or military ties to the United States.²¹⁹

In 2012, Secretary of Homeland Security Janet Napolitano issued a memorandum establishing the immigration policy known as Deferred Action for Childhood Arrivals (“DACA”).²²⁰ Like the Morton Memo, DACA called for ICE officers to exercise discretion in the enforcement of immigration law and was intended to channel resources away from “low priority cases.”²²¹ DACA instructed ICE officers to refrain from instigating removal proceedings against certain noncitizens who arrived in the United States as children.²²²

Both the Morton Memo and DACA called for the use of discretion at the enforcement and prosecutorial levels.²²³ ICE officers tasked with enforcing immigration laws were directed to refrain from initiating removal proceedings against low priority individuals, and ICE attorneys were directed to exercise their discretion to dismiss or suspend removal proceedings.²²⁴ Exercising discretion at these two critical phases simultaneously conserves resources to allow federal agencies to focus on higher priority individuals while serving the broader humanitarian goal of ensuring that the punishment fits the crime.²²⁵

It is not difficult to draw the comparison between the use of discretion in immigration enforcement and the criminal justice system.²²⁶ In both contexts, discretion in policing has the positive effects of conserving limited resources, promoting efficiency, and serving the interests of justice.²²⁷ On the other hand, discretionary enforcement can be exploited in ways that lead to dangerous and undemocratic consequences.²²⁸ In the context of broken windows policing, research has consistently revealed that ‘cleaning up the streets’ by prioritizing the apprehension of low-level offenders has not resulted in a reduction of overall crime rates.²²⁹ But just as it is within an individual officer or department’s discretion to prioritize the policing of sex workers, they also have the choice not to focus their resources there.²³⁰ If law enforcement officials shifted their focus away from over-policing sex work, they would not only reduce the burden on the criminal justice system,²³¹ but they would also create safer working environments for sex workers and increase the likelihood that women exit the profession if they so desire.²³² To do so, state and local police departments can take a page out of ICE’s playbook and encourage law enforcement officers to refrain from targeting sex workers.²³³ In Massachusetts, for example, local police chiefs have the authority to issue written directives alerting officers to policies and procedures regulating the department.²³⁴ Written directives allow police chiefs to guide officers on the department’s priorities, and they can range from informational memoranda to binding general orders.²³⁵ A written directive disseminated to officers encouraging them to shift their focus away from targeting sex workers would serve the same goals as decriminalization without the lengthy and cumbersome process of going through the state legislature.²³⁶

2. Using Amnesty Principles from Immigration Law to Empower Sex Workers to Report Crimes and Incidents of Human Trafficking to Law Enforcement

To encourage victims to cooperate with federal law enforcement in the detection and apprehension of criminal offenders, Congress created two special nonimmigrant visas for noncitizens who entered the country without inspection.²³⁷ Nonimmigrant U Visas (“U Visas”) are available to victims of certain crimes, and Nonimmigrant T Visas (“T Visas”) are available to victims of human trafficking.²³⁸ Over 3,000 T Visas and over 17,000 U Visas were granted in 2022.²³⁹ Recipients of both visas must cooperate with law enforcement investigations in order to be eligible for the program.²⁴⁰ An individual may be eligible for a U Visa if they were the victim of a qualifying crime and have been, are currently being, or are likely to be “helpful to law enforcement, prosecutors, judges, or other officials in the detection, investigation, prosecution, conviction, or sentencing of the criminal activity.”²⁴¹Individuals may be eligible for a T Visa if they are present in the United States due to sex or labor trafficking and have complied with reasonable requests by law enforcement for “assistance in the investigation or prosecution of human trafficking.”²⁴² These visas were created with the understanding that the lack of legal immigration status can keep victims from reporting crimes out of fear of being subjected to removal proceedings.²⁴³ The U Visa and T Visa program benefits both victims and law enforcement: visa recipients are provided a sense of security, and law enforcement receives assistance in detecting and investigating criminal activity.²⁴⁴

A similar concept can be applied to the policing of sex workers: law enforcement officers and sex workers can work together in a mutually beneficial way to advance the goals of the TVPA and reduce harm to both consensual sex workers and victims of trafficking.²⁴⁵ Detecting, apprehending, and convicting sex traffickers is notoriously difficult—a problem that has only been exacerbated by the purge of websites like Backpage in the wake of FOSTA’s passage.²⁴⁶ Sex workers could be a valuable resource to law enforcement in filling this information gap, as they are uniquely positioned to identify potential sex trafficking and come in contact with victims.²⁴⁷ The information possessed by sex workers is useless, however, if they are arrested before they can share it with law enforcement.²⁴⁸ Extending some form of immunity to sex workers who report being victims of crime could also help reduce violence and exploitation.²⁴⁹ The threat of violence against sex workers is directly linked to the industry’s criminalized status.²⁵⁰ When already marginalized individuals are denied protection by law enforcement, violence is allowed to continue without consequence.²⁵¹ By removing the threat of arrest on prostitution charges, sex workers would be more inclined to go to the police when they are victims of crime.²⁵²

Nine states currently have laws extending some form of immunity to sex workers who report witnessing or being victims of crimes.²⁵³ But as mentioned above, the legislative process is not the most efficient means of accomplishing change, especially against the backdrop of starkly divergent ideologies across party lines.²⁵⁴ This type of immunity for sex workers is another area in which discretion—at both the policing and prosecutorial level—could come into play.²⁵⁵ Law enforcement officers can exercise their discretion to not bring prostitution charges against sex workers who come forward with information about human trafficking or to report being victimized by crime.²⁵⁶ This exercise of discretion functions as an informal mode of immunity similar to T and U Visas that allow noncitizens to collaborate with law enforcement without fear of removal due to their lack of status.²⁵⁷ Prosecutors can exercise their discretion to afford this immunity by dismissing or declining to bring prostitution charges against sex workers who entered the criminal justice system as a result of their attempt to report a crime.²⁵⁸ On a more literal level, prosecutors can also extend transactional immunity to sex workers in exchange for their testimony in a criminal case.²⁵⁹ Applying the amnesty principles of U and T Visas to the criminal justice system in this context could eliminate many of the harms resulting from the current criminalization scheme without forcing sex workers to wait for widespread legislative change.²⁶⁰

Conclusion

The exploitation of women—including girls as young as twelve—on Backpage was heinous.²⁶¹ Young women like sixteen-year-old Desiree Robinson were abducted, assaulted, and killed while the website raked in millions of dollars in profit, and the protections of Section 230 thwarted any attempt to bring justice to the victims and their families.<²⁶² The original goal behind FOSTA, to hold website providers liable for promoting sex trafficking, was laudable and garnered almost unanimous support.²⁶³ But along the way, that goal became entangled with some politicians’ desires to introduce morality legislation targeting sex work.²⁶⁴ When sex trafficking is conflated with consensual sex work, further obscuring the already blurred lines of the commercial sex industry, everyone suffers. Sex workers are needlessly put at risk by legislation like FOSTA,²⁶⁵ and trafficking victims are sent through the criminal justice system to be adjudicated as criminals, rather than victims.²⁶⁶ Truly bringing justice to the victims of Backpage will require more than sweeping legislation that turns a blind eye to the realities of the commercial sex industry.

Lawmakers must realize that sex workers could be vital allies in combating human trafficking—but this symbiotic relationship cannot exist in a system where sex workers are ignored, stigmatized, and met with suspicion at each phase of the criminal justice system.²⁶⁷ If the current criminalization scheme is to persist on a broad scale in the United States, something must change in the way law enforcement interacts with sex workers. History’s oldest profession is not going anywhere—so it is time to shift the national focus away from how we can stop the commercial sex industry, and towards how we can make it safer for the women within it.²⁶⁸

1
See Tom Jackman, House Passes Anti-Online Sex Trafficking Bill, Allows Targeting of Websites Like Backpage.com, Wash. Post (Feb. 27, 2018, 6:15 PM EST), https://perma.cc/LE38-SW2U.
2
Id.
3
Id.
4
Jackman, supra note 1; Aja Romano, A New Law Intended to Curb Sex Trafficking Threatens the Future of the Internet as We Know It, Vox, https://perma.cc/48PF-TJF5 (last updated July 2, 2018, 1:08 PM EDT).
5
See Albert Gregory, SESTA-FOSTA and COVID-19 Changed the Digital Sex Work Landscape, Golden Gate Express (Sept. 8, 2021), https://perma.cc/CHQ5-8JKB.
6
See Danielle Blunt & Ariel Wolf, Erased: The Impact of FOSTA-SESTA & the Removal of Backpage 5 (2017), https://perma.cc/3XT7-DBGC.
7
See Sirin Kale, OnlyFans: A Day in the Life of a Top(less) Creator, Economist (Jan. 6, 2020), https://perma.cc/7EKW-Z8TP.
8
See Charlotte Colombo, The History of OnlyFans: How the Controversial Platform Found Success and Changed Online Sex Work, Bus. Insider (Sept. 14, 2021), https://perma.cc/8V6S-KGY8
9
See generally Paul J. Maginn & Emily Cooper, Stigma and Stereotypes About Sex Work Hinder Regulatory Reform, The Conversation (Aug. 2, 2017, 9:03 PM EDT), https://perma.cc/3DSJ-LKGU.
10
See generally Kate Lister, Sex Workers or Prostitutes? Why Words Matter, iNews, https://perma.cc/G2C7-EA3L (last updated July 17, 2020, 10:55 AM).
11
Chris Bruckert et al., Language Matters: Talking About Sex Work 3 (2013), https://perma.cc/3CQR-ALQD; Lister, supra note 10.
12
Lister, supra note 10.
13
Bruckert et al., supra note 11, at 3.
14
Bruckert et al., supra note 11, at 3–4.
15
See generally Bruckert et al., supra note 11, at 3.
16
See generally Bruckert et al., supra note 11, at 3.
17
See generally Bruckert et al., supra note 11, at 4.
18
Robbie Mitchell, Prostitution, One of History’s Oldest Professions!, Ancient Origins, https://perma.cc/2NEH-DXKH (last updated Dec. 3, 2022).
19
Id.
20
James Bronson Reynolds, Sex Morals and the Law in Ancient Egypt and Babylon, 5 J. Crim. L. & Criminology 20, 28 (1914).
21
Mitchell, supra note 18.
22
Brown Univ., Prostitution in the Middle Ages, Decameron Web, https://perma.cc/NLY5-GWVE (last updated Jan. 31, 2011).
23
See Arianne Plasencia, Prostitution and Sex Workers, 9 Geo. J. Gender & L. 699, 699 (2008).
24
Eric Weiner, The Long, Colorful History of the Mann Act, NPR (Mar. 11, 2008, 2:00 PM ET), https://perma.cc/JY5P-LUMZ.
25
PBS, The Mann Act, Unforgivable Blackness, https://perma.cc/FF49-T4KJ (last visited Feb. 16, 2024).
26
Id.
27
Act of June 25, 1948, Pub. L. No. 80-772, § 2421, 62 Stat. 683, 812 (codified as amended at 18 U.S.C. § 2421 (2018)).
28
Weiner, supra note 24.
29
See Global Mapping of Sex Work Laws, NSWP, https://perma.cc/2WM7-QWAR (last visited Feb. 16, 2024).
30
Chi Adanna Mgbako, The Mainstreaming of Sex Workers’ Rights as Human Rights, 43 Harv. J.L. & Gender 91, 121 (2020).
31
E.g., id. at 127 (criticizing the Nordic model); Elliot Douglas, Sex Workers Speak out Against German Prostitution Law, Deutsche Welle (Oct. 18, 2021), https://perma.cc/V6KU-3JHR (criticizing the legalization and regulation of sex work in Germany); Jade Kake & Fern Eyles, The Failure of the “New Zealand Model” According to Māori Women, Medium (Feb. 2, 2021), https://perma.cc/6XAA-2GMR (criticizing decriminalization in New Zealand).
32
See Douglas, supra note 31.
33
Mgbako, supra note 30, at 127.
34
See Lisa Chedekel, Decriminalizing Prostitution Won’t Solve Social, Ethical Problems, B.U. Sch. Pub. Health (Jan. 9, 2017), https://perma.cc/JBE2-3W2J.
35
See Jesse McKinley, Could Prostitution Be Next to Be Decriminalized?, N.Y. Times (May 31, 2019), https://perma.cc/A2WD-XRCK.
36
Coty R. Miller & Nuria Haltiwanger, Prostitution and the Legalization/Decriminalization Debate, 5 Geo. J. Gender & L. 207, 233 (2004).
37
Nev. Rev. Stat. § 201.353 (2021).
38
Miller & Haltiwanger, supra note 36, at 235.
39
See, e.g., Nev. Rev. Stat. § 201.380 (prohibiting the operation of a brothel within 400 yards of a school or religious institution).
40
Miller & Haltiwanger, supra note 36, at 240.
41
See Max Ehrenfreund, When Rhode Island Accidentally Legalized Prostitution, Rape Decreased Sharply, Wash. Post (July 17, 2014, 3:00 PM EDT), https://perma.cc/4JAU-72D3; Elana Gordon, Prostitution Decriminalized: Rhode Island’s Experiment, WHYY (Aug. 3, 2017), https://perma.cc/LZ69-TS3U.
42
Allan Smith, The Strange Story of How Rhode Island Accidentally Legalized Prostitution, Bus. Insider (July 22, 2014, 2:08 PM PDT), https://perma.cc/ZAM2-VKWH.
43
Id.
44
Id.
45
Gordon, supra note 41.
46
Gordon, supra note 41.
47
Gordon, supra note 41.
48
Adrianna McIntyre, Study: Rhode Island Accidentally Decriminalized Prostitution, and Good Things Happened, Vox (July 15, 2014, 9:45 AM EDT), https://perma.cc/NWQ2-E7UN.
49
Gordon, supra note 41.
50
Hoke v. United States, 227 U.S. 308, 321–22 (1913).
51
Nick Gillespie, Remembering the Mann Act or, How Prostitution Killed the Constitution, Reason (Sept. 15, 2010, 2:27 PM), https://perma.cc/F59D-YU5J.
52
Caminetti v. United States, 242 U.S. 470, 486 (1917).
53
18 U.S.C. § 2421, amended by Act of Nov. 7, 1986, Pub. L. No. 99-628, § 5(b), 100 Stat. 3510, 3511.
54
See U.S. Const. amend. XIII § 1; Human Trafficking: Key Legislation, U.S. Dept. Just., https://perma.cc/C3K2-FZ78 (last visited Feb. 16, 2024).
55
Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 112, 114 Stat. 1464, 1486 (2000); Kelsey Y. Santamaria & Cong. Research Serv., IF11942: Human Trafficking: Key Federal Criminal Statutes 1 (2021), https://perma.cc/EDU4-WKC7 (explaining the criminal provisions created by the TVPA).
56
18 U.S.C. § 1591(a)(2) (2018).
57
Id. § 1591(e)(3).
58
Romano, supra note 4. See generally Jackman, supra note 1 (explaining how the Senate’s bill, SESTA, was combined with the House’s bill, FOSTA, to create the FOSTA-SESTA package).
59
Romano, supra note 4.
60
Gloria Riviera et al., Emotional Senate Hearing Finds Backpage.com Complicit in Underage Sex Trafficking as Victim’s Families Testify, ABC News (Jan. 13, 2017, 5:41 PM), https://perma.cc/7XKC-VQ5X.
61
Dan Levine, Backpage.com CEO Arrested over Sex Trafficking Allegations, Reuters (Oct. 6, 2016, 6:46 PM), https://perma.cc/W29Z-PQJX; Riviera et al., supra note 60.
62
Romano, supra note 4. See generally 47 U.S.C. § 230 (2018).
63
47 U.S.C. § 230(c)(1).
64
Riviera et al., supra note 60.
65
See Romano, supra note 4.
66
Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No 115-164, § 4, 132 Stat. 1253, 1254 (2018). See generally 18 U.S.C. § 1591 (2018) (establishing criminal liability for sex traffickers); 18 U.S.C. § 1595 (2018) (providing civil remedies for victims of sex trafficking); 47 U.S.C. § 230(e)(5) (reflecting the changes to Section 230 made by FOSTA).
67
18 U.S.C. § 2421A (2018); 47 U.S.C. § 230(e)(5)(C); Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No 115-164, § 3, 132 Stat. 1253, 1253 (2018).
68
E.g., Romano, supra note 4.
69
Romano, supra note 4.
70
Letter from Stephen E. Boyd, Assistant Att’y Gen., U.S. Dep’t Justice, to J. Robert W. Goodlatte, Chairman Comm. Judiciary, U.S. H.R., Views of the Department of Justice on H.R. 1865, 1–2 (Feb. 27, 2018), https://perma.cc/TV7R-5B5B.
71
Romano, supra note 4.
72
Hila Shamir, Feminist Approaches to the Regulation of Sex Work: Patterns in Transnational Governance Feminist Law Making, 52 Cornell Int’l L.J. 177, 188 (2019).
73
Id.
74
Id. at 189–91.
75
See id. at 191.
76
See id. at 179–80.
77
Id. at 180.
78
Shamir, supra note 72, at 192.
79
See generally Sex Workers Speak out, Glob. Network of Sex Work Projects, https://perma.cc/HF9B-LNHJ (last visited Feb. 16, 2024).
80
Shamir, supra note 72, at 193–94.
81
See, e.g., Joe Carter, Why Legalized Prostitution Increases Sex Trafficking, Gospel Coal. (Jan. 8, 2016), https://perma.cc/XH6K-RTGM.
82
Karen Engle, Liberal Internationalism, Feminism, and the Suppression of Critique: Contemporary Approaches to Global Order in the United States, 46 Harv. Int’L L.J. 427, 429 (2005).
83
Id. at 436.
84
See, e.g., Carol Tan, Does Legalized Prostitution Increase Human Trafficking?, Journalist’s Res. (Jan. 2, 2014), https://perma.cc/P5MS-KWQR (referencing the Cho study). See generally Seo-Young Cho et al., Does Legalized Prostitution Increase Human Trafficking?, 41 World Dev. 67 (2013).
85
Cho et al., supra note 84, at 76.
86
Cho et al., supra note 84, at 67.
87
See Cheryl Nelson Butler, A Critical Race Feminist Perspective on Prostitution & Sex Trafficking in America, 27 Yale J.L. & Feminism 95, 98–99 (2015).
88
See Tan, supra note 84.
89
See Cho et al., supra note 84, at 76 (“[T]his qualitative evidence is also somewhat tentative as there is no ‘smoking gun’ proving that . . . legalization of prostitution definitely increases inward trafficking flows.”).
90
Cho et al., supra note 84, at 76.
91
Cho et al., supra note 84, at 67.
92
Cho et al., supra note 84, at 69.
93
Ronald Weitzer, Legalizing Prostitution: Does It Increase or Decrease Sex Trafficking?, Glob. Pol’y J. (July 21, 2021), https://perma.cc/A45Z-LC99.
94
See Cho et al., supra note 84, at 69–70; see also Weitzer, supra note 93, at 2.
95
See Labor Trafficking, Nat’l Hum. Trafficking Hotline, https://perma.cc/LWK5-M5P8 (last visited Feb. 16, 2024); Weitzer, supra note 93 (“The U.S. State Department reports . . . that ‘the majority of human trafficking in the world takes the form of forced labor.’”).
96
See generally Nina Avramova, More Violence, Sexual Infections When Sex Work Is Criminalized, Study Finds, CNN Health (Dec. 11, 2018, 2:00 PM EST), https://perma.cc/ZH7B-9YPK.
97
Lucy Platt et al., Associations Between Sex Work Laws and Sex Workers’ Health: A Systematic Review and Meta-Analysis of Quantitative and Qualitative Studies, Plos Med., Dec. 11, 2018, at 1, 3, DOI: 10.1371/journal.pmed.1002680.
98
Id. at 36.
99
See Lisa Cameron et al., Crimes Against Morality: Unintended Consequences of Criminalizing Sex Work, 136 Q. J. Econ. 427, 427 (2020).
100
See, e.g., id. at 427–28.
101
Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities, Hum. Rts. Watch (July 19, 2012), https://perma.cc/XM7W-E6LS.
102
Id.
103
Liz Tung, FOSTA-SESTA Was Supposed to Thwart Sex Trafficking. Instead, It’s Sparked a Movement, WHYY (July 10, 2020), https://perma.cc/YN46-WLH3.
104
Id.
105
Id.
106
Romano, supra note 4.
107
See Michael Dimock & Richard Wike, America Is Exceptional in Its Political Divide, Pew Charitable Tr. (Mar. 29, 2021), https://perma.cc/3TVC-9Q42; Should Working as a Prostitute Be Legal?, YouGov US, https://perma.cc/HLF7-QCTP (last visited Feb. 16, 2024) (showing that surveyed Americans are divided on whether sex work should be legalized or not, with only a slight majority favoring legalization).
108
See Sarah Sakha et al., Is Sex Work Decriminalization the Answer? 1–2 (2020), https://perma.cc/W346-ETZJ (describing proposed legislation from different states, and harms faced by sex workers under criminalization).
109
See generally Rachael Dziaba, Let’s Talk About Sex Workers, Harv. Pol. Rev., https://perma.cc/HJ7H-S5NG (last updated Nov. 8, 2022) (describing how dangers faced by sex workers are aggravated by social stigma and law enforcement’s reluctance to provide protection).
110
See, e.g., Jonah E. Bromwich, Manhattan to Stop Prosecuting Prostitution, Part of Nationwide Shift, N.Y. Times, https://perma.cc/K67V-DJ4E (last updated July 23, 2021) (reporting trend in prosecutors declining to prosecute sex workers).
111
See generally Kendra Albert et al., FOSTA in Legal Context, 52.3 Colum. Hum. Rts. L. Rev. 1084, 1085 (2021); Kate Mogulescu, The Public Defender as Anti-Trafficking Advocate, an Unlikely Role: How Current New York City Arrest and Prosecution Policies Systematically Criminalize Victims of Sex Trafficking, 15 CUNY L. Rev. 471, 480–83 (2012) (arguing in favor of discretion in litigation of prostitution charges).
112
Timothy Williams, Backpage’s Sex Ads Are Gone. Child Trafficking? Hardly., N.Y. Times (Mar. 11, 2017), https://perma.cc/QXF8-BQM9.
113
See Countering Human Trafficking: Year in Review 7 (Dep’t of Homeland Sec. Jan. 2023), https://perma.cc/E399-KGN7.
114
Id. at 15.
115
See 2019 Crime in the United States: Persons Arrested, FBI: Unif. Crime Reporting, https://perma.cc/K7AX-MNLV (last visited Feb. 16, 2024).
116
See Sex Trafficking: Online Platforms and Federal Prosecutions, No. GAO-21-385 20 (GAO 2021), https://perma.cc/9HKM-85UT.
117
Id. at 32–33.
118
Id. at 20.
119
Id.
120
Id.
121
Id. at 20–21.
122
Sex Trafficking: Online Platforms and Federal Prosecutions, No. GAO-21-385 21 (GAO 2021), https://perma.cc/H7CW-JRAX.
123
Id. at 23.
124
Id. at 24–25.
125
Id. at 25.
126
Id. at 27.
127
See generally Karol Markowicz, Congress’ Awful Anti-Sex-Trafficking Law Has Only Put Sex Workers in Danger and Wasted Taxpayer Money, Bus. Insider (July 14, 2019, 8:38 AM), https://perma.cc/KD5R-78VM.
128
Mackenzie Flynn, FOSTA-SESTA and Its Impact on Sex Workers, AIDS United (Dec. 16, 2021), https://perma.cc/J43A-T6DD.
129
Albert et al., supra note 112, at 1090; see Samantha Cole, Pimps Are Preying on Sex Workers Pushed off the Web Because of FOSTA-SESTA, Vice (Apr. 30, 2018), https://perma.cc/8AHL-TVYP (“Pimps seem to be coming out of the woodwork since this all happened . . . [t]hey’re taking advantage of the situation sex workers are in.”).
130
Albert et al., supra note 112, at 1090–91.
131
See, e.g., Crystal A. Jackson & Jenny Heineman, Repeal FOSTA and Decriminalize Sex Work, Contexts (Aug. 25, 2018), https://perma.cc/PRH3-FEVS (“The St. James Infirmary in San Francisco reported a fourfold increase in street-based sex work (versus online solicitation) in the first week after the passage of FOSTA.”).
132
Blunt & Wolf, supra note 6, at 23.
133
See Sakha et al., supra note 109, at 6 (“[L]evels of violent crime (physical or sexual assault) are shown to be substantially lower with online versus street-based sex work.”).
134
Blunt & Wolf, supra note 6, at 3.
135
Blunt & Wolf, supra note 6, at 3.
136
Ronald Weitzer, New Directions in Research on Prostitution, 43 Crime L. & Soc. Change 211, 223–24 (2005).
137
Blunt & Wolf, supra note 6, at 13.
138
Blunt & Wolf, supra note 6, at 18-19.
139
Blunt & Wolf, supra note 6, at 19.
140
Blunt & Wolf, supra note 6, at 5; see also Flynn, supra note 129 (“[O]wners of popular online platforms have responded to FOSTA-SESTA by censoring or completely banning parts of their platforms—which has effectively put sex workers’ lives at risk by undermining vital online infrastructures used to screen clients, receive payments and enact other security measures.”).
141
Blunt Wolf, supra note 6, at 21.
142
Blunt & Wolf, supra note 6, at 21; Sebastien Malo, U.S. Online Sex Trafficking Law Challenged in Court, Reuters (June 29, 2018, 6:47 AM), https://perma.cc/D6RX-KXLW.
143
Blunt & Wolf, supra note 6, at 18; Meghan Peterson et al., The New Virtual Crackdown on Sex Workers’ Rights: Perspectives from the United States, Anti-Trafficking Rev., Apr. 2019, at 189, 190.
144
Peterson et al., supra note 145, at 190 (finding that 92% of respondents reported that “before FOSTA, they had screened their clients, but for the time after FOSTA’s passage, this figure dropped to 63 per cent”).
145
Peterson et al., supra note 145, at 190.
146
Blunt & Wolf, supra note 6, at 18.
147
Blunt & Wolf, supra note 6, at 18.
148
Blunt & Wolf, supra note 6, at 9-10.
149
See Kitty Stryker, What the FOSTA/SESTA Anti-Sex Trafficking Bill Means, Teen Vogue (Mar. 27, 2018), https://perma.cc/NS3L-B5FQ (“FOSTA-SESTA is a response to a grave injustice that disproportionately impacts women and girls of color, most who have landed in the sex trade not because of choice, but because of lack of choices or coercion.”).
150
See Blunt & Wolf, supra note 6, at 3 (arguing that under current legal definitions, if a friend or family member was to provide housing, transportation, or support to a sex worker, they could be considered a trafficker).
151
Blunt & Wolf, supra note 6, at 18.
152
Albert et al., supra note 112, at 1085.
153
Albert et al., supra note 112, at 1085.
154
Albert et al., supra note 112, at 1085.
155
See Ann Wagner (@RepAnnWagner), X (Apr. 11, 2019, 4:15 PM), https://perma.cc/VXJ7-KYEW.
156
Peterson et al., supra note 145, at 189.
157
Albert et al., supra note 112, at 1148.
158
329 U.S. 14, 17 (1946).
159
274 F.2d 15, 18 (1959).
160
Id.; Lewdness, Black’s Law Dictionary (11th ed. 2019).
161
Cf. Selena Simmons-Duffin, For Doctors, Abortion Restrictions Create an ‘Impossible Choice’ When Providing Care, NPR (June 24, 2022, 4:26 PM ET), https://perma.cc/JYP3-SSZU (discussing confusion among physicians practicing under imprecise abortion laws).
162
See generally Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, § 2, 132 Stat. 1253, 1253 (2018) (stating that the intention of FOSTA was to protect sex trafficking victims).
163
See 18 U.S.C. § 1591(a)(2) (2018).
164
See generally 18 U.S.C. § 1591(a)(2) (using the language “force, fraud, [or] coercion”); 18 U.S.C. § 2421A(a) (2018) (establishing liability for website providers).
165
See generally Elizabeth Dias, Trump Signs Bill Amid Momentum to Crack Down on Trafficking, N.Y. Times (Apr. 11, 2018), https://perma.cc/4FCY-NULM.
166
See generally Romano, supra note 4 (exploring the conflict between Congress’s efforts to fight sex trafficking and sex workers’ need for online resources).
167
A single law enforcement officer tasked with enforcing the speed limit or stopping jaywalkers could not possibly apprehend every individual she sees violating the law in a single day; this is purely because she cannot be in multiple places at once and does not have eyes in the back of her head.¹⁶⁷George C. Thomas III, Discretion and Criminal Law: The Good, the Bad, and the Mundane, 109 Penn St. L. Rev. 1043, 1043 (2005).
168
See id.
169
See id.
170
See Nowacki & Spencer, supra note 169, at 5.
171
Nowacki Spencer, supra note 169, at 4.
172
Nowacki Spencer, supra note 169, at 5.
173
Thomas, supra note 170, at 1044–45.
174
See “Broken Windows” and Police Discretion, No. NCJ 178259, at 1–2 (DOJ 1999), https://perma.cc/A6D6-4GXA.
175
Meredith Dank et al., Consequences of Policing Prosecution 3 (2017), https://perma.cc/HC2L-PECT.
176
Id.
177
See id.
178
See id. at 7.
179
Blunt Wolf, supra note 6, at 5.
180
Wayte v. United States, 470 U.S. 598, 607 (1985).
181
See id. at 607–08.
182
Thomas, supra note 170, at 1043.
183
Julia A. Sheridan, Discretion: The Heart of Prosecution, 35 Me. Bar J. 101, 101 (2020).
184
Id. at 102.
185
Id.
186
Id.
187
See, e.g., Bromwich, supra note 111; Angie Jackson, Washtenaw County Will No Longer Prosecute Consensual Sex Work, Detroit Free Press (Jan. 15, 2021, 7:00 AM ET), https://perma.cc/XJZ3-KQA3.
188
Bromwich, supra note 111.
189
Bromwich, supra note 111.
190
Bromwich, supra note 111.
191
Jackson, supra note 190.
192
Jackson, supra note 190.
193
Sakha et al., supra note 109, at 7.
194
Dziaba, supra note 110.
195
Dziaba, supra note 110.
196
Dziaba, supra note 110.
197
Dziaba, supra note 110.
198
Dziaba, supra note 110.
199
Cody Jorgensen, Badges and Brothels: Police Officers’ Attitudes Toward Prostitution, Frontiers Socio., June 15, 2018, at 1, 3, https://perma.cc/QC4G-HSXU.
200
Int’l Hum. Rts. Clinic at USC Gould Sch. of L., Over-Policing Sex Trafficking: How U.S. Law Enforcement Should Reform Operations 19 (2021), https://perma.cc/Q359-NNPP [hereinafter Over-Policing Sex Trafficking].
201
Dank et al., supra note 178, at 22.
202
Dank et al., supra note 178, at 34.
203
See Over-Policing Sex Trafficking, supra note 203, at 1–2.
204
Mogulescu, supra note 112, at 474.
205
Over-Policing Sex Trafficking, supra note 203, at 1–2.
206
Over-Policing Sex Trafficking, supra note 203, at 1–2 (“Survivor advocates consistently describe rough handling by law enforcement, who would tightly hand-cuff survivors, ‘throw [them] into a bathtub in zip ties,’ and ensure they were uncomfortable in order to get them to talk. Other survivors report law enforcement yelling and screaming in their faces, calling them names such as ‘bitch,’ ‘disgusting,’ and a ‘disease.’”).
207
Mogulescu, supra note 112, at 474.
208
See Mogulescu, supra note 112, at 474.
209
Mogulescu, supra note 112, at 474.
210
See Mogulescu, supra note 112, at 476-77. See generally N.Y. R. Crim. P. 440.10(1)(i) (allowing for a defendant’s prostitution conviction to be vacated if their participation in the offense resulted from having been a victim of sex trafficking).
211
Mogulescu, supra note 112, at 480.
212
Mogulescu, supra note 112, at 480.
213
Mogulescu, supra note 112, at 481.
214
Mogulescu, supra note 112, at 481.
215
See Over-Policing Sex Trafficking, supra note 203, at 52–58 (recommending a new approach to anti-trafficking efforts).
216
See Memorandum from John Morton, Dir., U.S. Dep’t Homeland Sec., to Field Office Directors, Special Agents in Charge, & Chief Counsel, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens 4–5 (June 17, 2011), https://perma.cc/5MZP-QGDX.
217
Id. at 2.
218
Id. at 3.
219
See id. at 4.
220
Memorandum from Janet Napolitano, Sec’y of Homeland Sec., U.S. Dep’t Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs and Border Prot., Alejandro Mayorkas, Dir., U.S. Citizenship and Immigr. Serv., John Morton, Dir., U.S. Immigr. and Customs Enf’t, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1 (June 15, 2012), https://perma.cc/S686-EXCH.
221
Id. at 1–2.
222
Id.
223
Memorandum from Janet Napolitano to David V. Aguilar, Alejandro Mayorkas, & John Morton, supra note 223, at 1–2; Memorandum from John Morton to Field Office Directors, Special Agents in Charge, & Chief Counsel, supra note 219, at 4.
224
Memorandum from Janet Napolitano to David V. Aguilar, Alejandro Mayorkas, & John Morton, supra note 223, at 2–3; Memorandum from John Morton to Field Office Directors, Special Agents in Charge, & Chief Counsel, supra note 219, at 3.
225
Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243, 244–45 (2010) (“Some individuals who are in technical violation of the law may nonetheless have redeeming qualities . . . . Often, these humanitarian considerations are weighed against moral deservedness, namely the gravity of a person’s immigration transgression.”).
226
See id. at 269.
227
See id.
228
Erik Luna, Transparent Policing, 85 Iowa L. Rev. 1107, 1108, 1116–17 (2000); see Sarah Childress, The Problem with “Broken Windows” Policing, Frontline (June 18, 2016), https://perma.cc/5G8J-VGYN.
229
Bernard E. Harcourt, Bratton’s ‘Broken Windows’, LA Times (Apr. 20, 2006, 12:00 AM PT), https://perma.cc/D9V5-AGU6.
230
See Mogulescu, supra note 112, at 474.
231
Mogulescu, supra note 112, at 474.
232
Dank et al., supra note 178, at 22 (noting that sex workers convicted on criminal charges face difficulties gaining employment due to their criminal record); Dziaba, supra note 110 (describing how sex workers forgo reporting violence to the police out of fear of being arrested themselves).
233
See Memorandum from Janet Napolitano to David V. Aguilar, Alejandro Mayorkas, & John Morton, supra note 223, at 1–2; Memorandum from John Morton to Field Office Directors, Special Agents in Charge, & Chief Counsel, supra note 219, at 4.
234
Mass. Gen. Laws. ch. 41, § 97A (2023); see, e.g., Written Directive System, Policy & Procedure No. 4.20, at 1–3 (Erving Police Dep’t 2014), https://perma.cc/2ZYL-GGEF (describing one police department’s policy on written directives).
235
Written Directive System, Policy & Procedure No. 4.20, at 1 (Erving Police Dep’t 2014) https://perma.cc/MUV7-7WL2.
236
See generally, Mass. Pub. Emp. Ret. Admin. Comm’n, The Legislative Process 2–8 (2002), https://perma.cc/9T5B-KKJN (explaining the process through which a bill becomes law in Massachusetts).
237
Kristina Gasson, Differences Between T and U Visas, NOLO, https://perma.cc/4TWG-N5WB (last visited Feb. 16, 2024).
238
Dep’t Homeland Sec., U and T Visa Law Enforcement Resource Guide (2011), https://perma.cc/3Z38-VQQ2 [hereinafter U and T Visa Guide].
239
Countering Human Trafficking: Year in Review 6 (Dep’t. of Homeland Sec. Jan. 2023), https://perma.cc/QPQ3-NF28.
240
U and T Visa Guide supra note 241, at 3.
241
U and T Visa Guide supra note 241, at 4.
242
U and T Visa Guide supra note 241, at 9.
243
U and T Visa Guide supra note 241, at 3.
244
U and T Visa Guide supra note 241, at 3.
245
See Over-Policing Sex Trafficking, supra note 203, at 3 (recommending improved communication between prosecutors, law enforcement, and sex workers to advance the goals of the TVPA and to reduce harm to trafficking victims).
246
Sex Trafficking: Online Platforms and Federal Prosecutions, No. GAO-21-385 20–21 (GAO 2021), https://perma.cc/VQK6-KZHH; Over-Policing Sex Trafficking, supra note 203, at 17 (explaining the barriers to prosecuting sex traffickers).
247
See Over-Policing Sex Trafficking, supra note 203, at 38.
248
Over-Policing Sex Trafficking, supra note 203, at 38.
249
Ariela Moscowitz, Want to Reduce Violence Against Sex Workers? Offer Them Immunity, Crime Rep. (Feb. 10, 2022), https://perma.cc/W6L9-YGQV.
250
See Weitzer, supra note 137, at 214.
251
See Weitzer, supra note 137, at 214.
252
See, e.g., Sakha et al., supra note 109, at 8 (pointing to research suggesting that sex workers are more likely to report violent crime to police when the threat of arrest is removed).
253
Fact Sheet: Criminal Legal Immunity for Reporting Crimes, Decriminalize Sex Work, https://perma.cc/B4XX-87G2 (last visited Feb. 16, 2024).
254
Tyler Hughes & Deven Carlson, How Party Polarization Makes the Legislative Process Even Slower When Government Is Divided, London Sch. Econ. & Pol. Sci. (May 19, 2015), https://perma.cc/73A3-HGTC.
255
See generally Ric Simmons & Renée McDonald Hutchins, Learning Criminal Procedure 23 (2d ed. 2019) (discussing the exercise of discretion in the criminal justice system).
256
See Thomas, supra note 170, at 1043 (“Any system that permits an almost limitless set of decision points for police . . . will be filled with almost limitless discretion.”).
257
See U and T Visa Guide supra note 241, at 3.
258
See Sheridan, supra note 186, at 101; cf. Bromwich, supra note 111 (reporting a New York District Attorney’s decision to stop prosecuting sex workers).
259
See generally Michael N. Giuliano et. al., 22 C.J.S. Criminal Law: Substantive Principles § 98 (2023) (explaining transactional immunity).
260
See Dank et al., supra note 178, at 46 (“The criminalization of prostitution and, more generally, negative interactions with the police discourage the reporting of, and therefore investigation of and response to, violence and exploitation.”); Over-Policing Sex Trafficking, supra note 203, at 19 (“[T]raffickers rely on demonization of law enforcement to exert control over the victim and to ensure that the victim does not report the trafficker to law enforcement.”).
261
See Jane Ridley, Survivors Detail Their Sex-Trafficking Ordeals While Hired out on Backpage.com, N.Y. Post, https://perma.cc/RB9A-GQZ4 (last updated Jan. 10, 2022, 12:06 PM ET).
262
Paul Demko, The Sex-Trafficking Case Testing the Limits of the First Amendment, POLITICO (July 29, 2018), https://perma.cc/3BTP-789H; Tom Jackman, Mother of Slain Teen Makes Tearful Plea for Congress to Amend Internet Law, Wash. Post (Sept. 19, 2017, 5:17 PM EDT), https://perma.cc/9BPM-BGD2 (“Desiree Robinson was 16, and was being prostituted on Backpage.com when a man outside Chicago beat her, choked her and cut her throat on Christmas Eve 2016.”).
263
Elizabeth Strassner, Why Some Lawmakers Opposed an Anti-Sex Trafficking Bill, Medill News Service (Mar. 23, 2018), https://perma.cc/8VAL-QPCC.
264
See Stephen Lemons, FOSTA 2.0: Rep. Bob Goodlatte Rewrites House Sex Trafficking Bill to Target All Illegal Prostitution, FrontPage Confidential (Dec. 13, 2017), https://perma.cc/KXK8-4MUQ (reporting on former Representative Bob Goodlatte’s amendment to FOSTA expanding the Act’s application beyond sex trafficking to target consensual sex work).
265
Romano, supra note 4.
266
Mogulescu, supra note 112, at 474.
267
See Platt et al., supra note 98, at 36.
268
See McKinley, supra note 35.

Madison Adler

Madison Adler (she/her) was a Comment and Note Editor for the New England Law Review, Volume 58. She is a 3L Juris Doctor Candidate graduated in May of 2024. In the spring of 2023, Madison served as an intern for the Honorable Justice Gaziano at the Massachusetts Supreme Judicial Court through New England Law’s Honors Judicial Internship program. She was responsible for drafting recitation memorandums and various other assignments, including assisting on a Single Justice opinion. Over the last two years, Madison has worked as a Law Clerk at Colucci, Colucci & Marcus, P.C., specializing in medical malpractice, personal injury, and wrongful death litigation. Madison plans to join the firm as a first-year associate in the fall of 2024. Madison grew up in the Seacoast and Lakes Region of New Hampshire. She graduated from Babson College with a Bachelor of Science in Business Management and a Concentration in Legal Studies. At Babson, Madison was a member of the field hockey team and served as a member of the Student-Athlete Advisory Committee.

Tagged in :

criminal justice, criminal law, decriminalization, federal law, trafficking