A lawsuit led by Erotic Service Provider Legal, Education & Research Project (ESPLERP) calls for the removal of California Penal Code 647(b), which criminalizes soliciting or engaging in prostitution. This law is used for most prostitution-related arrests in California. The court case claims that 647(b) violates four constitutional rights:
- The right to sexual privacy (14thAmendment)
- The right to free speech (1stAmendment)
- The right to earn a living (14thAmendment)
- The right to freedom of association (1stAmendment)
The claim has been filed in the US District Court against Kamala Harris (California’s Attorney General) and four Northern California District Attorneys. The first hearing was set for August 7, but now the ruling will be in writing, with no deadline currently given.
Why the US PROStitutes Collective supports the lawsuit
The decriminalization of sex work is long overdue. Many of us are mothers supporting children, young, homeless, immigrant, LGBT, Black women and other people of color, driven into sex work by discrimination and lack of economic options. We should not be punished for trying to survive and support our families. The removal of 647(b) from the California Penal Code would be a step forward in addressing serious violations of sex workers’ civil, legal, human and economic rights.
THE RIGHT TO SEXUAL PRIVACY: The right of adults to have consenting sex in private has been established for people of the same sex. That right should be extended to consenting sex exchanged for money. New Zealand successfully decriminalized sex work in 2003; then Member of Parliament Tim Barnett said:
“The freedom of two people to have sexual contact with each other has historically been denied to people of different races and classes, and to people of the same gender. This freedom is still denied to people when payment is involved. Why should two adults who want to have consensual sexual contact with each other in private not be able to do so?”
THE RIGHT TO FREE SPEECH: To be arrested under 647(b) solely for offering sex for money is a violation of the right to free speech. The law says that in addition to the agreement to offer sex for money some further act must take place corroborating or confirming that agreement, but that this can be “mere words” such as telling a client to take off his clothes. Women have been convicted for agreeing to sex for money on social media sites and suggesting a hotel as a meeting place.
THE RIGHT TO FREELY ASSOCIATE: People should be able to have private relationships with whomever they want to, including when that involves being paid or paying for consenting sex.
THE RIGHT TO EARN A LIVING: Sex workers, like other workers, should have the right to work and earn a living without being criminalized. California has the third highest poverty rates in the US, and this is higher among women and highest among children with a staggering 21% of California’s children living in poverty. Child poverty rates are particularly high (45%) among families headed by single mothers. Hundreds of thousands of mothers are worrying daily about where the next meal is coming from, and many exercise their right to survive and earn a living through prostitution. Yet they face arrest and prosecution, fines of up to $1000 and six months in jail. California had the highest number of prostitution-related arrests in the country in the last decade. It is criminal that so much money is wasted on outlawing sex work when this money should be spent addressing the poverty that leads so many people to sex work.
This lawsuit is needed now more than ever: The human costs of criminalization of sex work are many and deadly. Criminalization:
- Undermines safety. Sex workers are forced to work in isolation on the streets and in premises, and are at greater risk of attack. Rape and other violence are at epidemic levels but few sex workers report to the police for fear of arrest and, for those of us who are immigrant, deportation. The Black Coalition Fighting Back Serial Murders is demanding justice for the murder and disappearance of over 200 Black women in South Los Angeles; 100 of them are suspected victims of the Grim Sleeper now awaiting trial. Law enforcement referred to the victims as “NHI” (No Humans Involved) and allowed the murders to carry on for 30 years.
- Undermines health. Possession of condoms is used as evidence of prostitution-related offenses. Stigma and discrimination prevent sex workers accessing health services.
- Traps sex workers in prostitution. Having a criminal records is a major obstacle to getting other jobs.
- Encourages police illegality, violence and corruption. Women working on the street in San Francisco were found to be “frequently subjected to violent verbal abuse by police officers . . . often asked to trade sexual favors in exchange for not being arrested . . . commonly fondled . . . and occasionally beaten and hurt in the process of being arrested . . . seen to have no recourse” against this abuse.
- Encourages sexism, racism, and other discrimination. Black women are seven times more likely to be arrested for prostitution than women from other racial groups,and of all those arrested under the age of 18, 59% are Black. Communities of color and low-income communities are disproportionately targeted in sting operations to arrest men.
- Squanders public money on the policing of consenting sex. In March 1996 the SF Task Force on Prostitution found that $7.6 million was spent prosecuting prostitution offenses. This was probably an underestimation and is much higher now. Prostitution is widely conflated with trafficking. This has spawned a hugely lucrative anti-trafficking industry which claims to be rescuing women by going after clients, but instead targets sex workers, particularly immigrant sex workers, for arrest, prosecution, and deportation.
New Zealand successfully decriminalized prostitution in 2003. A government review has shown positive results: no rise in prostitution; women able to report violence without fear of arrest; attacks cleared up more quickly; sex workers more able to leave prostitution as convictions are cleared from their records; drug users treated as patients not criminals.
California should follow this example. Everyone, whatever their sex, race, age, occupation, or lifestyle, has the right to be free from attack and to have access to the resources they need to survive.
US PROStitutes Collective is an organization of sex workers and former sex workers of different races and backgrounds, working on the street and in premises. Founded in 1982, we campaign for the decriminalization of sex work, for safety and for financial alternatives so that no one is forced into sex with anyone by poverty and so that sex workers can leave prostitution if they want to. We start with the situation of street workers, who are most commonly targeted for arrest and jail, and most likely to face violence and police abuse.
 Police Abuse of Prostitutes, Jeremy Hay, 1994