In 2018 the Trump administration signed into law the ‘Allow States and Victims to Fight Online Sex Trafficking Act of 2017’, often referred to as FOSTA.
Fighting sex trafficking is an aim that no right-minded person could disagree with. It’s not necessary to explain that sex trafficking (of anyone of any age, but especially minors) is one of the most abhorrent acts on earth. Dig a little deeper, however, and you quickly find this Act is far from what it claims to be. Freedom of expression advocates, sex worker rights advocates and even some anti-human trafficking organisations have been quick to point out this Bill does absolutely nothing to tackle the issue of human trafficking. Instead, it presents a clear danger to the safety of women.
This is because it was never intended to fight sex trafficking. Put simply, the war on human trafficking is a war on prostitution. In fact, the Bill includes the word prostitution as much as it includes reference to sex trafficking victims. Dreamed up by the Christian conservative right and supported by punitive, anti-sex worker "feminists", FOSTA sees all selling of sex, regardless of the agency or consent of the sex workers involved as a form of human trafficking. The Act targets activities as broad as offering or soliciting paid sex, to living with a sex worker.
One of the most devastating effects of this act though, is that it makes it a felony to “promote or facilitate” prostitution. This means that online channels, such as back page, Craig’s List and Reddit, which sex workers have been using for years to advertise, have removed all their classified sections. Even though FOSTA is a piece of American legislation, the Act is having ramifications for sex workers across the world.
Classified ads give sex workers the opportunity to communicate with and screen clients before meeting them in person. These sites also allowed sex workers to communicate with each other, creating and sharing online blacklists of dangerous clients. FOSTA has managed to make an already dangerous profession exponentially more so overnight. Anti-sex trafficking organisations have also pointed out, all the Bill actually achieves in regards to sex trafficking is driving it further underground and making victims harder to reach.
On top of this, it has dried up the online client base and forced women back to the dangers of selling sex on the streets. The people profiting most from all this are pimps. Women are left with little choice but to capitulate to dangerous third party precursors, making them more at risk of exploitation and trafficking.
Much like the war on drugs, the war on sex trafficking is a faux-crusade designed to whip up a moral panic against the vulnerable people it claims to protect. The justification for this crusade is based on highly dubious, unsubstantiated data. There is no evidence that sex trafficking is on the rise in the US. In fact, due to its very nature we have absolutely no idea how many victims of sex trafficking there are across the world at any given time.
According to a 2015 article in Reason magazine — The Government Accountability Office (GAO) described the Department of Homeland Security’s figures on sex trafficking as “questionable”, citing “methodological weaknesses, gaps in data, and numerical discrepancies…the U.S. government’s estimate was developed by one person who did not document all his work.” Going on the article explains, “even if he had, there would still be good reasons to doubt the quality of the data, which was compiled from a range of nonprofits, governments, and international organizations, all of which use different definitions of trafficking.”
In the same year Glenn Kessler of the Washington Post used his fact checker article to debunk the often used statistic that 300,000 children are "at risk" of sexual exploitation in the US This is a claim used over and over again by proponents of the Act in both the Senate and Congress. However, they are baseless figures that have been denounced by the Crimes against Children Research Centre at the University of New Hampshire.
Kessler explains “the 300,000 figure comes from a 2001 report written by Richard J. Estes and Neil Weiner of the University of Pennsylvania. So the study relied on data from the 1990s...That should be an immediate red flag.
The report suggested that about 326,000 children were “at risk for commercial sexual exploitation,” but this was a somewhat nebulous term that did not necessarily mean the children were forced into prostitution. The researchers started by compiling the number of youths in 14 different categories, such as foreign children, children in public housing or female gang members. But many of these categories could overlap, such a female, foreign-born child in public housing who was part of a gang. That one person would count as three.
The study also made a series of assumptions that simply were not scientifically sound. A problem the researchers themselves were quick to point out.
Unfortunately, facts matter little in the face of a mass hysteria that is capable of furthering political gain and diverting a mindboggling amount of federal funds into law enforcement channels. We saw how this exact pattern played out with the war on drugs. We all now know the devastating human cost of that war. Generations of lives and entire communities were ripped apart and decimated. The police were militarised and the state was handed powers so draconian they would shock Orwell. The war on drugs ushered in the age of mass incarceration and created the perfect conditions for one of the most profitable industries in the world: the prison industrial complex.
The United States has the highest incarceration rate in the world, as of 2019 around 1.5 million people were serving a custodial sentence. In 2013, 716 per 100,000 of the national population was locked up in prison. Of the people locked up today, 176,300 were imprisoned for drug related offences. According to market research conducted by IBISWorld in 2014, private correctional facilities were a $4.8 billion industry that year, with profits of $629 million. This is before we even begin to consider the amount of money states make off prisoners by using them as free labour.
Profiting from vulnerability
The war on drugs did nothing to curtail the drug trade, but it did achieve one thing extremely well: it made the oppressors, be they cartel bosses or for-profit prison operators, astronomically rich off the backs of some of the most vulnerable sections of the working class. The war on prostitution (let’s call it what it is) will be no different.
The public opinion on the war on drugs is slowly beginning to shift. Younger people tend to be far more liberal about drug use and far more aware of the failures of criminalisation. This in turn is starting to influence a relaxation in drug laws. The same is not true for sex work. Despite being the oldest (and I’d hazard a guess, most sought-after) profession in the world, prostitution still has the ability to illicit a strong reaction from people. Add child exploitation into the mix and you can quickly get a perfect storm of fraught emotions and dangerous legislation.
Prohibitionist laws are always enforced more heavily in communities that are already marginalised and over policed. In 2018, black males accounted for 34% of the total male prison population and Hispanic males 24%. This is despite the fact black people only represent around 13% of the US population and Hispanic people 18%. Sex work is a part of every walk of life but sex workers of colour, trans sex workers and people who work the streets are much more likely to face harassment, assault, arrest and robbery at the hands of the police. These are the people who bear the brunt of the war on prostitution. ‘High class’ escorts with well-established client lists, respectable business models and indoor premises will be mostly sheltered from it. This is especially perverse considering these are the people who can most afford legal counsel and the limited protections offered inside the criminal justice system. Rich business men with the means to conduct their dates in restaurants and nice hotel rooms will also be sheltered from laws aimed at clients.
There are around 219,000 incarcerated women in the US according to a 2018 report by the Prison Policy Initiative. This is eight times higher than the number recorded in 1980 and it’s no secret that the vast majority of these women are black or brown and/or live below the poverty line. These women are subject to horrific abuse at the hands of the state. Male prison officers have ultimate control over female prisoners who are completely reliant on them for basic necessities. They can beat, degrade and even sexually abuse the women in their charge, seemingly with impunity.
As Angela Davis states in Frontline feminisms: women, war and resistance:
“the sexual abuse of women in prison is one of the most heinous state-sanctioned human rights violations within the United States today. Women prisoners represent one of the most disenfranchised and invisible adult populations in our society. The absolute power and control the state exercises over their lives both stems from and perpetuates the patriarchal and racist structures that, for centuries, have resulted in the social domination of women...”
The inevitable swell in street work since 2018 has been met with more arrests, raids, harassment and custodial sentencing. Yes, sex trafficking is a very real problem that needs to be combated, but FOSTA does nothing to address it. Instead it pushes women into further danger at the hands of pimps, clients and — perhaps worst of all — the police, all the while feeding the insatiable poverty-to-prison pipeline and perpetuating the prison industrial complex.
If we are going to have any hope of tackling sex trafficking then we need solutions that get to the root of the problem, not hyperbolic moral crusades against the sex industry. If we have learned nothing else from the war on drugs, surely we have learned by now that criminalising entire industries achieves nothing except pushing those industries further into the hands of the most unscrupulous people on earth.