Host and Producer: Yi Ding
Assistants: Stephanie Lu, JiJi Wong, and Chenxi Wu
Chinese editor: Jiangnan
English translator: JiJi Wong
Translator’s note: This piece was originally written as a Mandarin podcast script, published by our WeChat publishing partner New York Time on 7/22/22. The following is an English translation of the script.
Around two weeks ago, a screenshot of a tweet saying "California became the first state in the United States to legalize street prostitution" began circulating in WeChat groups and Douban groups, citing SB357 that was just signed by California Governor Gavin Newsom. Is this seemingly ridiculous news true? In Xin Sheng's outreach work, I happened to meet two related organizations. Red Canary Song advocates for the political representation and labor rights of immigrant massage workers. Butterfly is made up of sex workers, social workers, legal and health professionals to provide support and advocacy for Asian and immigrant sex worker rights. Today, I will analyze this serious rumor about street prostitution and discuss the best way to protect sex workers.
1: What is SB357? Does it legalize loitering with “intent to solicit”?
SB357, which stands for Safer Streets for All Act, aims to overturn California's anti-loitering law in order to prohibit police from arresting people who "look" like sex workers and are loitering on the streets. Why does SB357 say repealing loitering laws will make "everyone safer"? Be aware that many proponents of the overturning anti-loitering laws see it as an effective way to reduce sex trafficking and protect sex workers. However, it is not only sex workers and civil rights groups such as the famous American Civil Liberties Union (ACLU) who support the overturning of loitering convictions, but also some organizations that specialize in dealing with human trafficking, such as the Coalition to Abolish Slavery and Human Trafficking (CAST LA) oppose arrest of sex workers for loitering convictions. Why is this?
As with our last issue of gun control, I want to share some counterintuitive facts.
First, let's take a look at what loitering is. The crime of loitering is that in certain public places, the police can disperse, arrest, and even convict certain groups of people. Does it sound vague? Yes, and that's the problem...
The following narration comes from the story of Xin Sheng Project member JiJi’s friend and coworker Mel, a Black teacher in Connecticut, translated and retold by Chen Xi.
“I had a white girlfriend who was driving in the car with me at the time in Orange, CT. We were stopped on the side of the road or something when a cop came over and asked her, ‘are you here voluntarily?’ She said yeah she was, we were just sitting there talking or whatever teenagers do in a car. He then asks me to get out the car to check my ID and starts questioning me. Because I’m a big Black man with a white girlfriend, he profiled us ‘cause he thought either something was wrong and she was there against her will or no way she would date a Black dude, and I had to have been paying her for her time.”
Indeed, many people of color and LQBTQIA2S+ people have stories like this. Both Business Weekly and the Los Angeles Times have reported on incidents of innocent pedestrians being questioned by police for being Latine. The American Civil Liberties Union (ACLU) found data on arrests for low-level crimes by the Minneapolis Police Department between January 1, 2012, and September 30, 2014, 72% of arrests classified as “doesn’t fit any crime” in these 33 months were of Black. This confirms the universality of Mel's story, and the harsh reality of the targeting and arrest of innocent Black people that everyone hears of so often.
Hearing this, some may think that as Asians we don't have to worry about being targeted. But putting the crime of loitering in the context of sex work actually has a lot to do with Asians. What does it mean? Excessive arrests resulting from the criminalization of sex work exacerbate racial and sexist stereotypes of Asian women as ignorant, passive, helpless, and lacking in autonomy. Such discriminatory perceptions can be used to persecute and exclude the Asian American community. In an investigation code-named "Operation Asian Massage," Arizona federal police allegedly assaulted women who worked in massage parlors seventeen times. And the stigma against Asian immigrant workers can also be made more clear when one considers the stereotype and ruthless shooting of masseuse workers in the Atlanta shootings.
Under anti-loitering laws, police can arrest someone based purely on how they dress, whether they are wearing high heels, and certain styles of makeup or hairstyle. This high degree of subjectivity can easily lead to overpolicing. The groups that support repealing the anti-loitering laws this time are pushing for SB357 to protect the innocent and vulnerable people of color and LQBTQIA2S+ people.
In fact, loitering laws also do little to stop sexual assault and human trafficking of sex workers. Conversely, loitering laws make it more difficult to identify victims of trafficking; victims of trafficking are often afraid to come forward due to fear of arrest or imprisonment. In addition, California's overturn of the anti-loitering law is not unique. In 1992, the City of Chicago passed an anti-loitering law that, while good for restricting gang activity, was inconsistent with the Fifth and Fourteenth Amendments' "due process", as well as being overly broad and inconsistent with the First Amendment's protection of freedom of speech, expression, and assembly. Therefore, the Supreme Court ruled it unconstitutional. Afterwards, although there were some different loitering laws in different states, there has been much controversy. For example, in February 2021, New York repealed such loitering bans.
In this way, the opposition to the loitering ban in the rumor at the beginning of this audio ironically makes sense.
2. Other than legalizing or criminalizing sex work, there’s a better third way to protect vulnerable groups
If criminalizing sex work, whether loitering or engaging in sex trafficking, is not an effective and humane approach to the safety of public life, then what is? In fact, when it comes to the problem of sex trafficking, there are not only just the two paths of criminalization and legalization. What now receives widespread approval by more human rights advocates, and by most sex workers, is the decriminalization approach.
What is decriminalization? What is the difference between this and legalization?
Legalization, as the name suggests, imposes more laws and regulations on sex work, such as the legalization model implemented in Nevada, resulting in sex workers having to comply with a series of laws and regulations about when, where and how to conduct their work. Meanwhile, decriminalization treats sex work like any other profession, neither legislating for restricting it nor opposing it. This does not imply moral support for or against sex work, nor does it mean condoning human trafficking, sex trafficking, sexual assault, or violence against sex workers.
I take a closer look at the perspectives that the Xin Sheng Project’s partner groups hold of the best ways to legally treat sex work from a violence reduction perspective.
Sex workers are an extremely vulnerable group and often face severe violence, including physical and verbal assault, rape, kidnapping, stalking, wage theft and more. They also face extortion and unlawful arrest, which greatly affects their mind, body, and society. But the best way to help them is not criminalization. Criminal convictions, even partial criminal convictions, can place sex workers in more dangerous environments. The over-policing, surveillance, detention, and arrest caused by the criminalization of sex work are particularly harmful to minority and Indigenous sex workers, including the Asian sex workers mentioned above and even ordinary immigrants, including massage workers.
Many proponents of illegal sex trafficking would argue that criminalizing sex trafficking would effectively stop it, but in fact, according to Amnesty International, Human Rights Watch, and the World Health Organization, criminalizing sex work violates the basic human rights of sex workers, jeopardizing their health and well-being. Criminalization is the root cause of human trafficking.
Some might say the police can help sex workers. But in a widely sampled study, 98% of Chinese massage workers said they would not call the police when in distress. This is understandable, given that sex work is now considered a crime, and sex workers are less willing to speak out when they are subjected to violence or exploitation due to fear of sentencing or imprisonment. This allows people who buy sex work, as well as the police, to recklessly persecute sex workers. Moreover, this also happens under the so-called "Nordic model" that only criminalizes the purchase of sex work.
In contrast, the decriminalization of sex work means that not the act of buying and selling sex work is not itself criminalized. In this way, sex workers will be able to report abusers more easily, organize labor movements more effectively to protect their safety and labor rights, and allow sex workers to use their work income to support their families without worrying about them or their families risking arrest.
A New Zealand report on the impact of sex work decriminalisation on Māori sex workers stated, stated, “Few workers report coercion, with just 4% of all the 772 sex workers in a 2008 study stating they were made to work (8% of street based sex workers, 3% of managed brothel workers, and 4% of private indoor workers).” Treating sex work as legal labor would reduce the power imbalance between sex workers and their bosses, as it would make sex work protected by labor laws and give sex workers the right to sue their workplace, as well as making it easier to leave when necessary. This is very difficult to achieve when sex workers, their bosses, or sex trafficking establishments are illegal. Decriminalizing both buyers and sellers of sex also allows sex workers to do their work more openly, putting themselves at less risk.
It is worth clarifying again that SB357, which opposed the previous loitering laws, did not legalize soliciting or engaging in sex work, and street prostitution in California was by no means legalized as rumored, as was also made clear in California Governor Gavin Newsom's press statement. If SB357 has anything to do with protecting sex workers, it's that the bill is a good start to decriminalizing sex work.