FOSTA: A Death Sentence for Sex Workers By Meghan Peterson and Bella Robinson Call Off Your Old Tired Ethics (COYOTE) Rhode Island

 Introduction

On April 11, 2018, the Stop Enabling Sex Traffickers Act (SESTA) and Fight Online Sex Trafficking Act (FOSTA) were signed into law. While outside the Capitol building sex workers condemned the bill for its inevitable impact on safety, the bipartisan FOSTA-SESTA package sailed through the United States House and Senate. FOSTA/SESTA outlined new provisions to amend the Communications Decency Act to note that websites can be prosecuted if they engage “in the promotion or facilitation of prostitution” or “facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.” While supporters of the law claimed to target sex traffickers, its text makes no effort to differentiate trafficking from consensual sex work. Its passage was hailed by abolitionists as a victory in the fight against “sex trafficking,” an invisible force that anti-trafficking lobbyists claim victimizes innocent women and coerces them into the evils of sex work. Among actual workers, its passage was denounced as a death sentence for sex workers who were then further pushed underground and away from tools used to maintain safety and screening.

           In the days following SESTA-FOSTA’s passage through Congress—before it had even been formally signed into law—sex workers tangibly felt its effect. Though positioned to become fully implemented as late January 2019, FOSTA’s ramifications have functionally already been felt. Craigslist’s personals section was erased. Companies like Google began to censor terms surrounding sexual speech. Most notably, Backpage—a website where sex workers could advertise services online—was seized by federal authorities before FOSTA even went into law. Sex workers scrambled to find space on the internet to advertise services safely and away from the streets. One thing became clear: FOSTA illuminated how little congressional leaders care about, or are willing to listen to, the very same people they purport to want to save.

Anti-trafficking as a Historical United States Legislative Crusade

           The passing of FOSTA rests on an extensive history of abolitionist attempts to pass legislation that restrict sex work or apply paternalistic narratives to workers. The most notable example of this is the Trafficking Victims Protection Act (TVPA) of 2000. As the largest and most comprehensive anti-trafficking law, supporters claimed that the law would increase protections for trafficking victims in the United States by providing increased protections for “victims” by making them eligible for federal funding and creating immigration protections. The law also added new provisions that would enhance the capacity of federal prosecutors to target alleged traffickers. The TVPA laid the groundwork for anti-trafficking narratives and would come to set precedent for further policy that compromised the rights of sex workers. 
In 2003, congressed passed a reauthorization of the Trafficking Victims Protection Act that further stifled aid to sex worker organizations that did not explicitly oppose the existence of sex work. The law outlined that no funding “may be used to promote, support, or advocate the legalization or practice of prostitution.” Since its passage, organizations that provide aid to workers on the ground have criticized the language of the legislation for forcing organizations to adopt an anti-prostitution stance. Consequences of the anti-prostitution clause have included ending services for sex workers who are at-risk for HIV. Organizations, for example, have advised declining to work with sex workers for fear of losing USAID contracts and denying sex workers critical HIV prevention services, which may exacerbate the HIV epidemic. One example of how the clause has stifled funding for HIV services is how Brazil has refused to accept UNAIDS funding that could prevent HIV infections due to refusal to endorse the United States’ moralistic agenda. This legislation served as backing for the anti-trafficking narratives that would push FOSTA into law. 

Support for FOSTA 

FOSTA’s passage was facilitated through the support of sex work abolitionists, anti-trafficking nongovernmental organizations, and members of congress. Support often comes from the anti-trafficking industrial complex, or organizations who receive funding to combat trafficking based on faulty statistics and overstatements on actual sex trafficking prevalence. The most prominent anti-trafficking organizations tend to focus primarily on women who experience sexual exploitation, downplaying the more common other forms of exploitation faced by workers. The 50 most prominent anti-trafficking organizations in the United States share around $686 million, and may generate even more income through private partnerships. These organizations tend to rally behind anti-trafficking legislation and perpetuate mission statements through sensationalist narratives surrounding trafficking.

               The anti-trafficking industry is an estimated multi-billion dollar industry, with most money flowing to organizations that target sex trafficking specifically. Milivojevicet al. have identified three pillars on which the anti-trafficking industrial complex is based: sex trafficking as a moral crusade against women’s sexuality, anti-migrant narratives that portray traffickers as non-white foreigners intent on harming the West through “invasive” immigration, and a fear of organized crime networks prompted by media. These narratives are additionally often racialized to present women who are trafficked as the migrant “Other” who are stripped of their agency and must be saved. It relies on mythologies surrounding sex work to perpetuate an agenda that allows organizations to receive funding to combat the “evils” of sex trafficking. One of the most prominent organizations is the Coalition Against Trafficking in Women (CATW). CATW was central to lobbying for legislation such as the TVPA and FOSTA, and they often rely on faulty flawed anti-trafficking statistics. 

Weitzer (2007) outlines how anti-trafficking organizations use horror stories to lobby against sex worker rights such as noting that sex work is inherently violent, that customers and traffickers monolithically harm workers, that workers lack agency, that prostitution and trafficking are intrinsically linked, and that trafficking is on the rise. Weitzer (2007) critically examines these narratives to posit that these statistics are 1) based in moralism and 2) anecdotal rather than grounded in empirical truth. For instance, research shows that customers vary in demographics and reasons for pursuing sex work. Similarly, workers show varying levels of agency. Research, for instance, shows that most migrants are aware that jobs they take on are in the sex trade before entering them. Additionally, high numbers of trafficking victims are often overstated. The U.S. General Accountability Office (GAO) showed that the United States does not have accurate methodology for addressing numbers of trafficking victims and that other countries do not always have accurate reporting systems. Furthermore, other statistics often touted by anti-trafficking organizations are often anecdotal rather than based on substantive research. Some of these include that the average age of entry into the sex trade is 12 to 14 years old, which entered mainstream discourse when surveys asked instead when most initiated first sexual contact (which include behaviors like kissing). A recent survey conducted by COYOTE-RI of 1,519 national workers in 2017 returned an average age of entry as 22 years old.

Another source of anti-trafficking lobbying in the United States is abolitionist feminists in academia. Abolitionist feminists–who operate on agendas of wanting to abolish all sex work because it is inherently forced and patriarchal–have increasingly joined forces with the religious right in the United States to advocate for anti-trafficking policies. One of the most notable anti-trafficking academic feminists in the United States was Rhode Island’s Donna Hughes. As a member of the Rhode Island Interagency Task Force on Trafficking in Persons, Hughes was one of the state’s most staunch advocates for re-criminalization of indoor sex in Rhode Island. She cited her own research on the prevalence and ramifications of trafficking in the state for justification of passing laws surrounding indoor sex work. Hughes claimed to have conducted extensive academic research and interviews surrounding sex work, yet primarily spoke with members of law enforcement and social workers as opposed to workers themselves.

Support for FOSTA also came from the Senate through an initial crusade against Backpage, a website that many workers would use to host advertisements for safer screening. One of the biggest supporters of FOSTA and critics of Backpage was Senator Kamala Harris, who has been embraced by the center left as a progressive. As Reason documents, much of Harris’ work in the name of liberal feminist politics has surrounded targeting the most vulnerable women and sex workers disguised as liberating them. Harris fought against campaigns to decriminalize consensual sex work among adults and rallied behind calls for raids against immigrant-owned massage parlors in California that allegedly promoted “trafficking.” She has been labeled a “carceral feminist” for espousing positions that appear palatable to liberal centrists yet intensify the carceral state.Backpage served as an easy target for anti-traffickers in the Senate as one of the most visible spaces in online sex work personals. Workers who had been using the website to screen for safety’s testimonies were drowned out by Senators hoping to further carceral feminism.

A Misunderstanding of Sex Work

At the heart of FOSTA’s passage lies a fundamental misunderstanding over the nature of what differentiates sex work from sex trafficking. It is important to understand that sex work occurs under a multiplicity of circumstances rather than on a binary of “empowering” or “exploitative.” Deborah Brock outlines that discussions on how to regulate sex work have failed because legislators neglect the voices of sex workers who are more knowledgeable and experienced in the industry, instead painting them as “hapless dupes of patriarchal relations.” Under capitalism, sex work may offer better pay and more flexibility than other exploitative, low wage forms of labor. For instance, Laura Agustin has explained how many “trafficking victims” are often migrants who pursue sex work autonomously as a form of upward mobility. She argues that employees of rescue organizations often perpetuate narratives that deny the agency of working-class migrant women. In doing so they paint migrant women as passive, helpless, and incapable of making decisions about their livelihood for themselves. Their narratives are often implicitly racialized and assume working class women from low and middle income countries lack the agency to consent in sex work.

Similarly, others argue that prohibiting prostitution stigmatizes oppressed groups rather than addresses the deeper roots of their marginalization. In “Crown Expert-Witness Testimony in Bedford v. Canada,” John Lowman debunks many of the claims about violence in the sex trade by noting that these studies used sample sizes of only the most marginalized populations. Referring to indigenous women, who are often cited as some of the most victimized sex workers, he writes that “many […] would, no doubt, like to escape prostitution. They probably would like to escape poverty and colonialism too.” The main problems that lead to marginalization are not sex work itself but structural legacies of inequity that have left them marginalized in the first place. Michael Goodyear and Cheryl Auger additionally argue that stigmatizing sex workers through casting them as victims or deviants in the new legalization only works to “dehumanize” and “Other” sex workers whichperpetuates a cycle of violence. Criminalizing sex work therefore attempts to cover social inequities by pinning them on the sex trade rather than the broader systems of violence that have enabled them in the first place. 

The Anti-Trafficking Industrial Complex Harms Sex Workers 

The anti-trafficking industrial complex actively harms sex workers by promoting moralistic agendas, furthering carceralfeminism, and diverting funding from workers who could benefit from social services rather than rescue efforts. Melissa Gira Grant, for instance, has traced how anti-trafficking campaigns emerged from a small group of political influencers on the Right. For the conservative right, sex trafficking has long been a useful tool to frame opposition to any type of sex that does not occur between a married man and woman as a human rights cause. Conservative lobbyists such as Michael Horowitzof the Hudson Institute (now Inspector General of the United States Department of Justice) funneled organizing efforts into partnering with abolitionist feminists to fuel moralistic legislative agendas such as the Trafficking Victims Protection Act (TVPA). Grant notes that anti-trafficking legislation bolstered United States imperialism disguised as humanitarianism. She claims: “though couched in humanitarian terms, the war on trafficking has done less to protect human rights than to empower law enforcement on the global stage.”

Furthermore, anti-trafficking efforts embrace “carceralfeminist” policies that exacerbate the expansion of the carceralstate and contribute to the surveillance of marginalized groups. Elizabeth Bernstein has explored how neoliberalism economic agendas and anti-trafficking politics have combined to create aconvenient expansion of the correctional state. By criminalizing sex work, Bernstein states that “human rights discourse has become a key vehicle both for the transnationalization of carceral politics and for folding back these policies onto the domestic terrain in a benevolent, feminist guise.” She explains how the state has criminalized survival strategies of poor women—particularly poor women of color and how neoliberal sexual politics and carceral politics have coalesced around a criminal justice approach. In anti-trafficking narratives, the state and law enforcement are positioned as saviors rather than forces that oppress marginalized communities. Trafficking narratives additionally overstate the global prevalence of sex trafficking and divert resources from workers who could benefit from funding. While anti-trafficking groups focus on sex work as a primary source of exploitation, they fail to account for more common examples of trafficking such as underpaid factory and agricultural workers. 

Best Practices for Sex Work Legal Reform: The Case for Decriminalization 

Models for legal reform of sex work vary and include criminalization of sex work, legalization of sex work, “end demand” laws that penalize people who seek out workers, or full decriminalization.  FOSTA functions as an example of an “end demand” law that seeks to dismantle the institutions surrounding sex work and criminalize third parties who advertise sex worker services. “End demand” laws are often modeled after the “Swedish model,” or The Sex Purchasing Act in Sweden that criminalizes demand for services but does not criminalize sex work itself. However, critics and researchers have noted that “end demand” laws often drive sex work underground and out of sight, forcing workers to compensate by adopting more risky behaviors while their clients fear arrest. 

Recent assessment of the Swedish Sex Purchasing Act shows that street-involved sex workers continue to face threats of violence because they are not allowed to screen their clients who wish to act quickly out of fear of arrest. This means that sex workers have less time to assess if a client could be dangerous. Reports also reveal that while visible sex work has decreased, it has mostly moved online, indoors and to neighboring countries. The law has therefore had little effect on actually decreasing sex work, but instead just shifted it from public sight.  Many have reported stigma from healthcare workers and housing services, which disenfranchises workers from society. While the original lawmakers assumed that criminalizing the purchase of sex work would dissuade workers from entering the profession, it just persisted in alternative ways. Criminalization will not actually stop sex work, it will just shift it from the public view. Other countries that have adopted similar “End Demand” models, including Ireland, have seen similar effects. In the year since Ireland brought in the Nordic model there has been a 54% increase in crime against sex workers reported to National Ugly Mugs Ireland, and violent crime is up by 77%. The Sex Workers Alliance Ireland (SWAI) strongly opposed the introduction of this law and rightly warned that it would lead to increased violence against workers.

Public health research has shown that decriminalization may be one of the most effective ways to reduce HIV acquisition and STI incidence. A landmark series of articles in The Lancet has called for the decriminalization of sex work based on evidence-based medicine and has stated that “sex workers face substantial barriers in accessing prevention, treatment, and care services, largely because of stigma, discrimination, and criminalization in the societies in which they live. These social, legal, and economic injustices contribute to their high risk of acquiring HIV.” The state of Rhode Island briefly decriminalized sex work due to a legal loophole, and a study notes that between 2003 to 2009 when indoor prostitution was decriminalized in Rhode Island, a study revealed that gonorrhea incidence declined by over 40 percent and reported rape offenses decreased by 30 percent. Sex work decriminalization therefore could lead to greater health and livelihood of workers who would not be forced to adapt risky behaviors by working underground with clients who were aware of their vulnerabilities.

Some have called for a full legalization of sex work. However, legalization likely would force workers to undergo costly licensing, STI testing, and invasive background checks. Because sex workers are already a group that experience stigma and marginalization, legalization would contribute to the further surveillance of workers. In Nevada, for instance, workers must register with their information which inhibits their rights to privacy and in some cases creates dangerous circumstances where stalkers or other dangerous individuals can track them down and threaten them. They can also be discriminated against in housing, future employment and child custody. A best practice approach would instead embrace the “New Zealand model” of full decriminalization. 

FOSTA: Immediate Effects, Transnational Implications, and Legal Challenges

In the short period since FOSTA’s passage, its effects have already been tangibly felt in sex worker communities. Over 18 platforms including Craigslist have already shut down their personals sections. Workers previously used these online platforms to screen clients ahead of time and more safely advertise services away from the street. Workers fear for the future of websites that operate as explicit safety mechanisms. For example, VerifyHim is a website that gives sex workers the ability to look up names of clients and check for referrals and potential danger. If it were to shut down, workers would lose a crucial platform to ensure their well-being and safety. Research from Scott Cunningham has shown that Craigslist’s erotic personals section was associated with a 17 percent reduction in female homicides.

Workers have already reported unsafe practices in response to FOSTA, yet there has been no measureable reduction in sex worker services. In an “After FOSTA” survey conducted by COYOTE RI and analyzed by SWOP Seattle, 60% of 262 participants reported that they had to take on unsafe clients to make ends meet following FOSTA’s passage. Workers also reported having reduced screening practices. Online, workers can also share harm reduction services and labor organizes resources. Given the vagueness of FOSTA, it is unclear if even these harm reduction websites that enable safer practices could be targeted by FOSTA. With these immediate effects and loss of platforms to advertise, there remains significant uncertainty over which resources or harm reduction groups could be targeted next. Officials have claimed massive reductions in sex working advertisements, but little evidence exists to confirm this. While it is likely that advertisements decreased immediately following FOSTA’s passage, other services hosted outside of the United States quickly replaced advertisements domestically.

There additionally remains a potential for FOSTA to influence policy on a global scale. Given the United States’ widespread influence on foreign policy, workers worry that the United States may export internet regulation laws to other countries. Already, in the UK groupmember of parliament have formed a bipartisan anti-trafficking committee, The All-Party Parliamentary Group on Prostitution and the Global Sex Trade. The committee has released reports condemning Craigslist and Backpage, the two websites that in the United States served as the initial targets of FOSTA supporters. Additionally, workers outside the United States may use American personals websites to advertise or to organize other workers. FOSTA’s effects have been felt beyond the United States and on a global scale. 

However, there remain some potential legal challenges to FOSTA that could offer hope to workers. Currently, two human rights organizations, a digital library, an activist for sex workers, and a massage therapist have filed a lawsuit asking the courts to block the implementation of FOSTA. They are represented by the Electronic Frontier Foundation (EFF). The plaintiffs aim to argue against the law on the grounds that FOSTA stifles free speech. The plaintiffs have asked the court to deem that FOSTA is unconstitutional. The lawsuit could serve as a catalyst for future discussions on sex worker rights, free speech, and eventual decriminalization. While the fate of Woodhull Freedom Foundation et al. v. United States, the aforementioned courtcase, is still to be decided, there remains some optimism among sex worker advocacy groups who have increased their organizing efforts following FOSTA’s passage. However, as it stands, FOSTA will target workers and push sex work further out of public sight. 

Conclusion

The ultimate flaw of FOSTA and other legislation surrounding sex work in the United States is that sex workers have rarely been consulted on legislation that will affect their experiences and safety. Stakeholders such as anti-trafficking organizations, legislators, and faith-based organizations have targeted sex workers by conflating them with victims of trafficking. However, United States discourse surrounding sex-trafficking has applied narratives that strip workers of their agency, overstate the prevalence of sex trafficking compared to other forms of labor exploitation on moralistic grounds, and use faulty statistics to further the trafficking industrial complex. FOSTA has the potential to hold dire implications for sex workers in the United States and abroad.