Lately I’ve seen more conversations than ever about the practicalities of decriminalizing prostitution. More and more, it seems like it’s just around the corner. But how will it happen? I’d like to tell you what I’ve learned.
First, there is no federal law against prostitution, only state laws. Prostitution cannot be decriminalized by our federal lawmakers.
There are three branches of government. I learned this on my second or third day as a registered lobbyist.
The legislature: on the state level, these are your senators and representatives. Do you think any of them are going to stand up and say, “hey, I’d like to put my name on a bill to decriminalize prostitution?” If they did do you think the rest of them would vote for it? Or that it would even get scheduled for all the committee meetings needed to get voted on? Great, let’s move on then.
The executive branch: this is your governor, or the president. Do you think your governor wants to be personally responsible for decriminalizing prostitution? Do you think Obama gives a shit about us? Okay, moving on.
The voters are not an actual branch of government, but let’s just talk about them here. Voters can do things. Voters can even do things that are unconstitutional, as we saw after the Ravin decision here in Alaska way back when. When voters do things, it is up to the legislature to interpret those things into actual law. Earlier this year we saw that here in Alaska. Voters decided to decriminalize marijuana and voted on a very specific proposal, but the way the legislature decided to implement that has been different than the will of the voters and has actually placed more limitations on marijuana use than when it was criminalized. Voters are fickle. They failed to decriminalize prostitution in California a few years ago and also failed on the gay marriage front in several states. Besides, if voters vote to eradicate the law against prostitution, the surrounding laws (promoting prostitution, loitering with intent, etc) will not be affected.
Now, let’s talk about the third branch of government, the courts, because the courts are our answer. Like we saw recently in the Supreme Court decision to allow gay marriage, the courts are where minority peoples most often see our rights affirmed. The Supreme Court’s job is not to act as a moral arbitrator or to interpret the will of the people. It’s to interpret the law, beginning with the constitution. LGBT people were being denied their constitutional right to equal protection under the law (which is not exactly what it sounds like: it means that laws such as marriage should apply equally to all people). Now LGBT people are not being denied their right to equal protection under marriage laws. Well, except for by Kim Davis.
Sex workers and our clients are currently being denied access to several of our constitutional rights. These include privacy, equal protection under the law, and due process. What is needed is a finding by the federal Supreme Court (and/or each state’s Supreme Court – that’s how it was done in Rhode Island) that states are violating our constitutional rights with the prostitution laws. It is important that clients are included in these lawsuits, or we could end up with End Demand.
There is currently such a lawsuit happening in California. Several sex workers and a client have bravely endured the risks of suing for their right to practice prostitution. They raised $30k and they hired one of the best constitutional attorneys in the country. Good constitutional attorneys are very expensive, and the case could die without more money.
Now: after decriminalization – are you ready to jump into your state legislature and get the New Zealand model implemented? Cause that’s what’s up next. Get ready.
UPDATE: People have asked about the limitations and probability of getting things done in state legislatures.
It is definitely possible that there are some states where a change in prostitution policy could happen. It seems like those changes would tend towards the Swedish Model rather than decrim, and even that doesn’t seem likely.
Even if it were possible to get the legislature to change prostitution policy, it is not desirable. The changes would be based on the opinions of the legislators involved and not on the rights of sex workers. It could end up looking like Sweden or Nevada.
A Supreme Court finding affirming our (and our customers’) rights to sexual privacy, free speech, and the due process right to earn a living and negotiate contracts would (a) immediately invalidate prostitution and many related laws and (b) ensure that future laws accounted for our rights.
This doesn’t mean that you shouldn’t involve yourself in your state’s legislative process! There are two main reasons to become involved in politics now: the legislature can achieve some harm reduction (like making it illegal for cops to sexually assault us or getting immunity for us in reporting crimes) and after decrim happens you’ll need to already have relationships in place to move forward in instituting the New Zealand model in your state.