Why Some Women Oppose an Anti-Sex Trafficking Bill
The SESTA-FOSTA package bill of 2018, which President Donald Trump signed into law on Wednesday, has been greeted as a godsend for women-and as an apocalyptic event. The bill seems simple: It makes it a criminal offense to knowingly assist or facilitate sex trafficking online, and allows online services to be prosecuted for doing so. When it takes effect, it will shut down some sites that profit from sexual assault and trafficking, crimes that are sometimes initiated over the web. The problem is that, in the process, it will also criminalize many people who want to help victims, and will endanger, and could even kill, women whose voices have been drowned out of the conversation.
Under the Communications Decency Act, websites that run user-supplied content are not liable in civil court for the actions of their users. It’s a crime to send someone a death threat in most jurisdictions, but if you get a death threat via Gmail, you can’t sue Google. SESTA-FOSTA, on the other hand, makes websites liable for their user content when that content is related to sex trafficking. The law means it’s not just sex workers, who already face criminal penalties for their work-though that is a very serious ramification. It will also cause a crackdown on sex-work related communications, which are often the sole means sex workers have to make their work safer and share information.
The bill is a response to the criminal investigation of Backpage, a website on which sex workers advertised their services and which was seized by the federal government earlier this week after an extended legal battle. (Last summer, a Senate investigation led by Rob Portman (R-OH) claimed that Backpage executives sheltered child sex traffickers who advertised on their site. Since it merely hosted ads created by others, Backpage countered that it wasn’t responsible for what was advertised.)
But whatever the details of these specific allegations, it's hard to feel bad for the executives at Backpage. Though Backpage has been portrayed by some SESTA-FOSTA opponents as an innocent victim of the culture wars, the acts its leadership are accused of are horrific. One indictment from an Arizona grand jury alleges that Backpage knowingly posted advertisements for sex with children (stripping out code words like “Lolita” and “amber alert” to disguise them), refused to adopt screening procedures suggested by law enforcement and child protection agencies, ignored parents who claimed that their underage children or their children’s friends appeared in ads posted on the site, and, in the most egregious incident, agreed to report suspected child abuse cases to the National Center for Missing and Exploited Children, but then instructed employees to artificially lower the number of reports: "If we don’t want to blow past 500 [reports] this month, we shouldn’t be doing more than 16 a day," operations manager Andrew Padilla wrote in an e-mail.
You don’t have to be Jeff Sessions to be horrified by this. The problem is, however, that under the terms of SESTA-FOSTA, there’s no way to penalize child abusers and pedophiles without at the same time affecting every consensual sex worker on the site-adults for whom online advertising was a life-saving security measure.
To advertise online, as those who used Backpage and several other sites have been able to do, puts a shield between sex workers and potential clients. Women can work independently, book clients at home, and screen them for red flags. Phoenix Calida, a Chicago sex worker interviewed by the Guardian, said it gave her the luxury to"negotiate terms in advance, request that clients provide references, run cross-checks on clients' email addresses, and communicate with other sex workers about dangerous or violent people to avoid."
If women are unable to book clients over the internet, many of them will do it face-to-face, on the street-where they have less time and fewer reliable opportunities for screening, and are far more vulnerable to abuse. Online, sex workers also tend to have access to a larger pool of potential clients, which gives them alternatives to prospective clients who seem dangerous. To lose that decision power is to cost women their lives. In one study, cities that introduced a Craigslist Erotic Services site (where sex workers could advertise) were found to have a 17-percent drop in female homicides. Not homicides of sex workers-of women, period. Sex workers comprise such a massive chunk of all female murder victims that the implementation of even basic safety measures for them can have a hugely beneficial effect across the board.
It's hard to reconcile these facts with horrific abuses that Backpage is said to have profited from. But you can recoil from those abuses and also recognize that SESTA-FOSTA is not well-positioned to end them. No child sex traffickers were indicted in the Backpage seizure-only a handful of webpage executives. (Indeed, when Backpage shut down its sex ad section last year, not only did child trafficking continue, police officers said it was harder to catch the traffickers: "When Backpage was running adult ads, we used to get tips, but that has dropped off," San Jose Police Department sergeant Eric Quan told the New York Times. "It makes it a lot more complicated for us to figure out what’s going on.") And when websites become liable for sex-work-related communications, the resulting censorship does not only affect traffickers; it means a crackdown on related communications, including those designed to help or protect sex workers.
A friend who covers the sex industry told me that, in California, even giving a sex worker information about how to advertise more safely online would be considered a criminal offense. Speaking to Think Progress, Kate D’Adamo of Reframe Health and Justice mentioned "a listserv where [sex workers] sent out information about violent clients so people could screen for violence" as another potentially criminal communication; "any harm reduction and screening posted online would be subjected to a federal crime punishable by 10 years," she claimed.
Harsher penalties also deter sex workers from reporting the abuses that do happen. Sex workers and advocates insist that child trafficking and exploitation is actually aggravated by the criminalization of sex work. Sex workers are well-positioned to spot this kind of abuse-but they can't report it to the police without risking arrest. The screening measures recommended to Backpage by the Seattle Police and NCMEC included requiring advertisers to give real names and addresses-which potentially would have created a database of sex worker info for law enforcement to seize. When people and platforms can’t report abuse without incriminating themselves, they don’t report it.
Opposing SESTA, or recognizing the damage it will do, does not mean abandoning our moral obligation to oppose rape and those who profit from rape. And it certainly doesn’t require you to feel bad for Backpage executives. It means recognizing that lumping both child sex predators and adult, consensual sex workers together under the vague banner of "prostitution," and then criminalizing them both, only gives the predators cover-whether that's from websites that accept money from both parties because they don’t perceive a legal or moral distinction, or from lawmakers who criminalize and endanger the most vulnerable women without seriously affecting the exploitative men responsible. A society that genuinely supports adult sex workers is a society that is more empowered to eliminate predators who monetize child abuse and sexual assault.
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