'What Does Criminalizing People Get Us, and What Does It Get Them?'
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Janine Jackson interviewed Nina Luo about decriminalizing sex work for the February 14, 2020, episode of CounterSpin. This is a lightly edited transcript.
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Janine Jackson: A new national poll found a majority of US voters, and two-thirds of those aged 18 to 44, support decriminalizing sex work. It seems to reflect an evolving reframing of societal understanding of sex work and sex workers, away from ideas about vice and morality, toward more clear-eyed questions of labor protection, precarity and humanity. That reframing, in turn, seems to reflect an effort to talk with sex workers, rather than just talk about them.
Nina Luo is an organizer and writer, and a founding member of Decrim New York and Survivors Against SESTA. She's also a fellow at Data for Progress and author of the new report, Decriminalizing Survival. She joins us now by phone from here in town. Welcome to CounterSpin, Nina Luo.
Nina Luo: Thank you for having me.
JJ: Can I ask you to start, as the report does, with some clarification of what and who is encompassed in the term “sex trade”?
NL: People are engaging in the sex trade when they exchange sexual services for money, housing, food, drugs, healthcare, any other kind of resource. People can do sex work for a small amount of time, for a long amount of time; it can be their primary or supplemental source of income. So it's really varied, and a lot more people are engaged in sex work than people realize.
JJ: And there also is a spectrum of choice involved.
NL: Yeah, absolutely. We say people trade sex on a spectrum of choice, circumstance and coercion. In the choice bucket, you have people who are doing sex work free of, basically, any pressure, economic or otherwise. In the circumstance bucket, which is where most people are, it's a combination of factors that make sex work the best choice for you, or the best way for you to survive. So maybe you have a big healthcare bill; maybe you're currently homeless and you're trading sex for shelter; you have a disability, which means you can't do a job where you're standing up nine hours a day; or you're trans and you're experiencing a lot of workplace discrimination and getting fired because of your gender identity—all kinds of things that make sex work, not the ideal option in the ideal world, but the option that's keeping you safe and alive right now.
And then you have the last bucket, which is coercion, where people are forced into the sex trade through violence, fraud, threats. And that is also known as trafficking in the sex trade. Human trafficking is a global phenomenon, and a lot of it happens—not just in sex work, but also in agriculture, manufacturing, domestic work, in prisons. And so when we talk about the problems of coercion in the sex industry, we're really talking about exploitation of people who are vulnerable in general, rather than just specifically sex workers.
JJ: I wanted to ask you about the current state of law, as it plays out in reality. Why is it so deeply in need of change?
NL: I think it's really important for us to understand that the debate about decriminalization is actually not a debate about sex work; it's a debate about what does criminalizing people and putting people in jail get us, and what does it get for them? Undoubtedly, there are bad things that happen in the industry. But our government's policy on the industry is only making things worse for people.
In every state, sex work is criminalized, except for Nevada, where you have a very narrow system of legalization, where there's a couple of counties that have brothels, and you have to work in the brothels in order to be engaged in legal sex work. But everywhere else in the US, it’s fully criminalized, which means selling sex, buying sex, living with a sex worker, providing services to a sex worker (such as doing security, or driving a sex worker around), advertising (whether online or in public spaces), that's all criminalized.
And then you have a number of charges that also allow police to profile people that they think are doing sex work. In New York, for example, there's a charge called “loitering for the purposes of prostitution.” That means that police can look around in public spaces and decide who they think is just occupying public space for the purpose of prostitution. In 2018, an overwhelming majority of the people who were arrested were black and Latinx, I think 91%, and 80% of people arrested were identified as female. And the number is probably actually higher, because a lot of police will misgender trans women as men when they arrest them.
When we're talking about criminalization, we're not just talking about specific charges. We're also talking about targeting an entire population of people—sex workers, trans women of color, people who use drugs, people experiencing homelessness—that we consider to be undesirable in public space. The process of police harassment, and then arrest, and then arraignment, and then either jail or a coercive diversion program, that is basically still going to court for a long period of time, and then sometimes having criminal records that impact your employment and your housing, and also potentially getting deported if you're an immigrant or migrant—that entire process is incredibly disruptive to people's lives. As long as the trade is criminalized, you're going to continue to see the consequences of being criminalized, magnifying the reasons that people are trading sex in the first place.
JJ: It's kind of remarkable to see the societal shift that we're seeing, as the poll numbers reflect, and the fact that young people seem to see clearly that law enforcement is just not the answer to every situation that we're trying to address. But there's a lot of organizing going on. This is an organizing victory, this change in opinion, isn't it?
 Nina Luo: “The question then shifts from, ‘How can the “law and order” approach address or eradicate sex work?’ to ‘How are resources divided up in our societies, and why are people trading sex for survival?’”
NL: I think it absolutely is. You have awesome grassroots movements led by people in the sex trade, led by trans women of color, led by immigrants, most visibly in New York and DC for decriminalization, but also popping up in other cities and states. For young people, it's pretty simple: You either have done sex work, or you know someone who has, because people are truly in economically desperate situations, like the student loan crisis, the healthcare situation, the fact that 13% of Americans know someone who's died because they couldn't afford healthcare. That's just a reality for people. It's much harder to stigmatize sex work when you know someone who has done sex work because they are struggling.
And also, young people aren't looking to the traditional sort of moral or religious institutions for political direction. And there's been a lot of awesome anti-policing organizing done by movements like Black Lives Matter. And so the question then shifts from, “How can the ‘law and order’ approach address or eradicate sex work?” to “How are resources divided up in our societies, and why are people trading sex for survival?” Right? I think this is why the question is actually so deeply controversial and difficult for people to deal with, is that it immediately forces people to reconcile with the fact that racial, gender and other forms of oppression marginalize people to the point where they're actually trading sex to survive. And that's really, really uncomfortable for people, and really hard to reconcile with.
JJ: I'm just trying to puzzle through things like this Washington Post editorial, “The Wrong Move for the Progressive Movement,” where they say folks who argue for decriminalizing sex work say that “bringing people out of the shadows will mean better protections,” and then they come back with:
What's wrong with that view is that it buys into the myth of prostitution as a victimless crime, glossing over the harsh realities—abuse from clients and pimps, commonplace drug use, psychological and physical trauma—of sex work.
I saw this elsewhere, where they were saying folks who argue for decriminalizing sex work, they just have a Pollyanna view of sex work as just the “happy hooker,” and don't see that there are actually problems involved in it. I don't understand why continued criminalization is seen as a way of solving the dangers and the problems that can be certainly involved in sex work.
NL: There's reasonable discourse around what is the best policy to reduce harm. When folks are accusing the sex workers and trafficking survivors that lead the decriminalization movement of presenting a “happy hooker” narrative, then it's really hard to have an actual discourse, right? Because so many of the folks that we organize with talk about their experiences with coercion and trafficking in the industry, and still know that decriminalization would have helped them and will continue to help people who are in the same situation right now.
I really challenge the view that criminalization is a good approach moving forward, when it's what we've had for 100 years and the US has an absolutely thriving underground sex trade. Whereas in countries that have decriminalized it, like New Zealand and Australia, we've seen people in the sex trade better able to access health services, better able to access the justice system, have labor protections, right?
At the end of the day, decriminalization is not the end-all, be-all. The fact of the matter is, whether it's criminalized or decriminalized, some people are trading sex to survive. So then the larger question is, what are the policy solutions that we can move—whether it's a homes guarantee or a job guarantee—that can put people in positions and elevate them out of economically vulnerable positions where they no longer have to trade sex to survive? That's the thing that I'm interested in talking about, which is sort of moving beyond decriminalization; but unfortunately, we have to get beyond the idea that somehow a war on sex work, like the war on drugs, is an effective way to deal with what's going on.
JJ: We've been speaking with Nina Luo, fellow at Data for Progress. You can find the report Decriminalizing Survival online at DataForProgress.org. Nina Luo, thank you so much for joining us this week on CounterSpin.
NL: Thank you so much for having me.
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