Innocent White Victims and Fallen Black Girls: Race, Sex Work, and the Limits of Anti-Sex Trafficking Laws
Siobhan Brooks

This essay is in the series Feminist Frictions: Key Concepts and Controversies, which is part of the Feminist Public Intellectuals Project. It is accompanied by a digital archive.

© 2020 by The University of Chicago. All rights reserved.

For all sex workers (especially the young black women I saw in court last month) charged once again with prostitution, for whom the words, “guilty your honor,” stick in their throats like glue, I enter a plea of innocence.
—Margo St. James

On April 22, 2018, Donald Trump signed the Stop Enabling Sex Traffickers Act (SESTA) and Fight Online Sex Trafficking Act (FOSTA), proudly proclaiming, “this is a great piece of legislation, and it’s really going to make a difference.” Those who supported the bills (including the New Jersey Coalition against Human Trafficking, Marian Hatcher, and Kamala Harris) have argued that the legislation will protect women from sex trafficking and hold internet service providers liable for facilitating prostitution and sex trafficking. However, many argue that these laws may actually do more harm than good. In fact, they may place sex workers in greater danger. In this essay, I argue that binary framings of debates about sex work—focusing on decriminalization versus criminalization, innocence versus guilt, or choice versus forced sex work—do not address the actual needs or political desires of sex workers, especially Black women. In fact, these binary framings do sex workers a political disservice. One way feminists can think more productively about issues of sex work and the debates surrounding them is to apply an intersectional analysis as opposed to a single-issue one. This can move feminists beyond the good/bad dichotomy and allow them to explore multiple ways of addressing the harms and inequality that can be associated with sex work.

The regulation of women’s sexuality in the US has its roots in religious conservatism and patriarchy more broadly, as is evident in the Trump administration’s attacks on abortion and LGBT rights. Christian conservatives and antifeminists have long operated under the guise of protecting an unborn fetus from “murder” or protecting the nuclear family against moral “decline.” But in fact, their concerns have little to do with the protection of families or vulnerable children and more to do with the control of women’s bodies and the construction of undesirable populations that the state must contain. In Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, Dorothy Roberts highlights the contradiction between, on the one hand, the needs of poor Black women on drugs and their children and, on the other, the punitive practices of the legal system that makes the fetus into a subject with rights. The fetus’s rights are then pitted against maternal agency and subjectivity, further marginalizing already vulnerable women. Roberts and other theorists have argued that if the state were really concerned about protecting the well-being of Black children born to addicted mothers, it would provide resources to help these women—including health care, housing, and drug rehab—not incarceration. In the context of sex work, “protecting” women from forced sex trafficking may, on the surface, look like a reasonable feminist goal. But I will argue that the state’s efforts to protect actually reinforce control of women’s bodies and ignore the larger contexts within which women make choices. Feminist debates about sex work can illuminate both women’s agency and the structures within which women who work in the sex industry make choices. It is also important not to confuse the issues of sex work and sex trafficking (the latter of which is generally equated with forced prostitution) because doing so misunderstands the differing needs of sex workers who want to be in the industry and those forced into it or want to leave it.

The feminist road from consensual sex work to sex trafficking

The feminist debates about sex work have a history dating back to the 1970s. They begin with the term “sex work” itself, which was coined by Carol Leigh, a sex worker activist and member of COYOTE (Call Off Your Old Tired Ethics), after attending a conference on prostitution:

I found the room for the conference workshop on prostitution. As I entered I saw a newsprint pad with the title of the workshop. It included the phrase “Sex Use Industry.”  The words stuck out and embarrassed me. How could I sit amid other women as a political equal when I was being objectified like that, described only as something used, obscuring my role as actor and agent in this transaction? At the beginning of the workshop I suggested that the title of the workshop should be changed to the “Sex Work Industry,” because that described what women did.

In this quotation, Leigh underscores that sex work is just that—work—and that women doing sex work should have the same protections and rights as other women doing service-sector labor. She also positions women sex workers as having agency, which places her in the feminist camp that believes sex work is a choice (albeit a choice made under structural conditions of inequality, as is the case for other kinds of labor). She is therefore challenging the radical feminist standpoint of activists and theorists such as Catharine MacKinnon, which views sex work as almost always violative, restrictive of women’s choices, and in many ways the purest expression of patriarchal exploitation and objectification.  This perspective shares similarities to the framework that undergirds bills such as SESTA and FOSTA, which conflate sex work and trafficking. Hence, the Nordic model attempts to eradicate prostitution by decriminalizing sex workers and criminalizing consumers. Yet the Nordic model still works to portray sex workers as both victims and untrustworthy. This model is similar to the Trafficking Victims Protection Act of 2000, which positions immigrant women within the sex industry in two categories: either as trafficking victims, understood as innocent women who are forced into sexual exploitation (usually by migrant male workers) and who immigrate illegally for economic reasons, or as women who knowingly and voluntarily immigrate for sex work. In other words, the act protects so-called innocent prostitutes, who are the perfect victims, and not the ones constructed as guilty and unworthy of protection.

Unfortunately, the very people these acts claim to protect are the ones harmed by them. In “The Sexual Politics of the ‘New Abolitionism,’” Elizabeth Bernstein argues that both feminist groups and the religious Right have shifted the antitrafficking movement toward solutions based on incarceration. Thus, much of the “help” offered to sex workers by the antitrafficking movement is through the criminal justice system: jailing johns or pimps or arresting women, especially Black trans women, who are considered prostitutes. In her Feminist Frictions essay “The Move to Affirmative Consent,” Janet Halley explores similar dynamics when discussing affirmative consent laws, which are designed to punish sexual contact that is not consensual. Halley makes a distinction between coercive sex (in which women may consent to sex due to social pressure) and forced sex (in which women are forced by violence to engage in sex), arguing that affirmative consent laws conflate the two. So while these laws may appear progressive on the surface, they are in fact geared toward punishing sexual assaults victims and serve to reinforce right-wing agendas of state control over women’s sexual choices. Similar language about protecting women appears in a number of state interventions, from restrictions on reproductive rights, to antitransgender bathroom laws, to immigration detention centers (where women are routinely sexually assaulted), to sex-trafficking discourse. But do laws like SESTA and FOSTA and the Trafficking Victims Protection Act really protect women in the sex industry? When we explore the intersecting identities of women who are in the sex industry, a different narrative emerges, one less about protection and more about punishment and control.

The perfect victim: Race and the problem with sex trafficking

According to a 2013 FBI report, Black youth account for 62 percent minors arrested for prostitution offenses in the US, yet in the antitrafficking movement, little attention is paid to Black girls in the sex industry. One of the main problems with the anti–sex trafficking position is its construction of an innocent victim who is forced into prostitution against her will and the assumption that these victims (and not women who “choose” to participate in the sex industry) are the only ones deserving of help. This framing largely leaves out Black girls and women, who are overrepresented in the criminal justice system and who are often assumed to be prostitutes by choice, whether or not they are actually in sex work or “chose” to be in it. The stereotyping of Black girls and women as prostitutes dates back to slavery, when Black women were viewed as Jezebels enticing white slave masters to rape them. Black women were, to use Andrea’s Smith’s term, inherently “rapeable,” meaning that it was impossible to violate them in the eyes of the law. This history means that Black women today are illegible as sex-trafficking victims deserving of protection and are instead viewed as choosing to be in prostitution and thus disqualified from receiving help. Similarly, low-income men of color are targeted for programs such as John Schools (educational interventions for men who have been arrested for soliciting sexual services), which reinforces their stigmatization and criminalization.

The structural oppression faced by many Black women and girls is also undertheorized in the antitrafficking discourse. This oversight is evident in the terms “sexual slavery” or “white slavery,” which are often used when describing white women and girls in sex trafficking. These terms overlook the historical reality of chattel slavery and its continuing effects on Black women and girls in the Americas, effects that have laid the groundwork for their uniquely exploited position in the sex industry. Black women were not seen as human but as chattel, and as a consequence they were largely viewed as breeders of slaves for the economy: a slave woman’s function was to reproduce slaves for a capitalist market, and her own life was not valued. Roberts analyzes the contrast between the mother’s life and that of her unborn child by using the example of a pregnant slave woman being whipped face down while lying over a hole that protected her belly so the baby would not be harmed. This set the stage for modern forms of punishment used against Black women that are premised on the protection of their children (e.g., child welfare systems, prisons). Not only were Black women not viewed as needing protection, they were also seen as sexually deviant compared to white women and thus deserving of their exploitation.

Positioning of black women and girls in sex work

This historical context helps explain Black women and girls’ unique placement in in the sex industry as well as the intersectional factors that lead them into sex work—areas that current antitrafficking laws, such as the Trafficking Victims Protection Act, fail to address, especially when it comes to accounting for Black women who are actually trafficked and in need of assistance. For example, because of racialized sexual stereotypes, Black women and other women of color are positioned differently within the sex industry when compared to white women. Most women of color, especially Black women, work as outdoor prostitutes and are subjected to violence and arrest in higher numbers, whereas indoor prostitutes or “escorts” tend to be white middle-class women, similar to many of the members of COYOTE.  Women of color who are exotic dancers often work at clubs in neighborhoods where streets are not well lit and the surrounding businesses are disinvested in creating a safe work environment. They also tend to work in clubs with high stage fees, resulting in some women prostituting at the clubs or meeting customers outside to make money so they can pay the fees and support themselves. So, even if Black women do not start out by prostituting, they can find themselves doing so within other types of sex work.

Antitrafficking laws do not take into account the structural factors that lead Black women and girls into forced sex work. For example, many LGBT youth turn to sex work to support themselves after they are kicked out their homes. For youth living in poverty or in group homes, sex work, at least on the surface, seems to provide forms of agency and economic benefits they currently lack. Poor and working-class Black women and youth are denied employment and educational opportunities, and this is especially true for Black trans women. Black girls who are trafficked into sex work have to manage the stigma of having been a prostitute in the eyes of their neighborhoods and schools, which makes it hard for them to obtain educational resources and shelter.

In the documentary Surviving R. Kelly, Dream Hampton underscores how easy it is for young Black girls to be trapped in dangerous situations because of the hope of a better life. In this case, R&B singer R. Kelly lured underaged Black girls into his house with the promise of making them stars only to kidnap them, keep them away from friends and family, and force them to engage in sexual acts against their will. Similarly, the 2007 documentary Very Young Girls, directed by David Schisgall and Nina Alvarez, exposes the sex trafficking of teenage Black girls in New York City and illustrates the way police departments regard Black girls who are exploited in the sex industry as criminals; though only fourteen years old, they are viewed as being old enough to consent to sex and therefore to be prosecuted as adults.

Beyond the punishment and decriminalization (Nordic) models

As I stated at the beginning of this essay, the decriminalization model supports the removal of criminal penalties for sex work. This model differs from legalization, which asserts that prostitution should not be criminalized but should be regulated, a model in use in Nevada, where the government regulates prostitution through zoning laws, sexually transmitted infection testing for sex workers, and restrictions on advertising. Each of these models has faced criticism, but they share the common goal of creating equitable and safe working conditions for sex workers. Decriminalization lessens the risk that women will end up with a criminal record, which would prevent them from obtaining other employment, but sex workers still can and do face violence. It also does not address the unequal gender relations that lead women into prostitution, nor the limited employment opportunities for women of color, especially those who are transgender.

Legalized prostitution is regulated by the state through licensing, taxation, STI testing, and zoning. While this is not criminalization, it is state control. Proponents of this model believe it will provide sex workers with the right to unionize and with protection from arrest. However, some sex workers are critical of this model, arguing that it violates sex workers’ civil rights—for example, sex workers who refuse to obtain a license can be fined, and mandatory STI testing is a violation of privacy. Furthermore, zoning laws make it hard for sex workers to operate since many people don’t want sex work in their community, associating it with crime.  The tension between decriminalization and regulation of sex work is also evident in the stances of Equality Now and Amnesty International. Equality Now supports policy to criminalize the sex industry and buyers, but decriminalize people in prostitution—the Nordic Model. In contrast Amnesty International supports decriminalization of all those involved in sex work, a policy opposed by groups such as Coalition against Trafficking in Women.

I propose that, to move feminists beyond unproductive debates, we focus not only on the legal category of prostitution, which is important, but also on the structural issues that keep women and girls doing sex work when they don’t want to, and on ways sex workers can have safety and good labor conditions. We also need to attend to the distinctions between street sex work and indoor sex work and between forced and consensual sex work. Young girls and women, especially of color, who are trafficked into sex work need social services to help them get out of the sex industry—not criminalization. Access to housing and education should also be provided, and racial and anti-LGBT discrimination, which can push young girls and women into this type of work in the first place, need to be addressed. Finally, laws such as SESTA and FOSTA should be repealed; not only do they make it difficult for sex workers to share information that can help keep them safe and promote their businesses via the internet but they also make it illegal for social services to market material to sex workers.

Social services need to address the intersecting issues sex workers face rather than focus on single-issue policies. Some examples are the Margo St. James Infirmary in San Francisco, which provides community-based health care to sex workers, or Girls Education and Mentoring Services in New York, an organization to help girls who have been sex trafficked by providing educational opportunities, housing, and legal services. Girls and women in the sex industry need resources, not criminalization. I think this is something most feminists would agree on.

Conclusion

For the past forty years the sex work debates within feminism have been mired in binary oppositions—criminalization vs. decriminalization, victim vs. criminal—without addressing the multiple issues affecting sex workers. Racism, poverty, transphobia, and patriarchy need to be accounted for within social policies that aim to provide sex workers with the resources they need to become self-actualized and have agency in their lives. Black women and girls in the sex industry especially should be viewed as deserving of help, not of punishment from law enforcement. Antitrafficking laws such as SESTA and FOSTA create dangerous situations for sex workers and justify state intervention into women’s sexual lives. As feminists, we need to recognize the structures within which women and girls exist and how those structures shape the choices they make, not only in sex work but in their overall lives.

The issues at stake are political, practical, and legal, from both macro and micro perspectives. The macro arguments for criminalization or decriminalization made by radical feminists, abolitionists, and pro–sex work feminists influence the micro realities of women in the sex industry. Pragmatic issues are at stake for women in the sex industry: the freedom to choose sex work as a job, the freedom to work without facing harassment from police, and protection from both state violence and violence from customers. These arguments also affect whether resources and protections are available for women who are forced into sex work and want get out of the industry. It is only with this holistic approach to sex work that these feminists debates will have a meaningful impact on the lives of women in the sex industry.