FOSTA and SESTA: The Anti-Trafficking Legislation that is a Giveaway to Traffickers
Two “anti-trafficking” bills are making their rounds in Congress right now with some powerful support: the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA). To date, FOSTA has passed the House alone and SESTA has only been introduced, but the passing of one or the other is so expected that changes are already happening with various sites shutting down and other sites dropping sections of their websites. However, far from helping fight sex trafficking, which these two bill superficially attempt to do, these bills are a giveaway to human traffickers who will find it easier to find individuals to traffick even if it is harder to market them – it is still a net win for traffickers.
Rather, these bills targets sex workers, individuals who voluntarily engage in the sex trade for their subsistence. It is not the sex traffickers who will suffer, but those who freelance in sex work and are already finding themselves more vulnerable to abuse, violence, and even being trafficked as slaves.
In order to understand this phenomenon, we are going to go through several issues: how sex is viewed in society, how sex workers actually operate, how people are trafficked, what FOSTA and SESTA actually do, and the collateral damage caused by the legislation – collateral damage being that which affects the general populace, not just sex workers. To help me in this, I interviewed one sex worker with a more astounding story than most which helps illustrate exactly how FOSTA and SESTA are dangers to sex workers. She was a sex worker, was trafficked, escaped, was trafficked a second time, escaped again, and is a sex worker today. The only points where she wasn’t involved in sex work were the points where she was trafficked, because those trafficked in the sex trade are not sex workers – they’re slaves. Needless to say, she is vehemently against FOSTA and SESTA. Someone who has been twice trafficked says this legislation hurts her; it doesn’t protect her.
Commercial Sex Tainted by Patriarchy
It is often said that prostitution is the oldest profession, and whether or not that is true it certainly has been around since the dawn of civilization. The ancients pioneered brothels and prostitution was even given sacred aspects. For example, Venus Erycina was an aspect of Venus in ancient Rome that dealt specifically with prostitutes and prostitutes flocked to worship this aspect. People have been willing to pay for sex and there have been women – and men – willing to provide it in return, as well as those willing to traffick individuals to keep the profits for themselves as slavery was also a fact in the ancient world. It was rarely glamorous or a sign of status, but it was accepted and prostitutes were not looked down upon.
However, male dominated society meant inheritance went down from one man to that man’s sons, which in turn meant that a man became extremely concerned with whether the sons they were raising were truly their sons and not another man’s. As a result, chastity became a virtue – for women at least. If a woman was a virgin until marriage and then had sex only with her husband, that husband could be assured any offspring that came from her womb were his – if he had bastards they were just not given inheritance rights and no harm was done from the perspective of patriarchal society.
Of course, prostitutes were not chaste – having sex with people was central to the very definition of what made someone a prostitute. As such, female prostitutes lacked this new sense of virtue – they were an aberration in the patriarchal system, though one that could politely be ignored and tolerated. It was okay for men to have sex with them, but they faced restrictions. The real problems came in when the claims that chastity was virtuous ceased to be a rational facet of male oppression of women and became an internalized, irrational assumption that people believed but couldn’t really explain why. At that point, prostitutes were no longer just outside of patriarchal sexual control, but they were seen as immoral sinners who threatened the irrational moral sensibilities of women who had for centuries been brainwashed into thinking that their value as people rested upon their chastity and faithfulness to their husband. Of course, men were brainwashed by this as well though to a lesser extent.
It is through this lens that bourgeois feminism views the sex trade today – sex is sacred to them and geared toward being the exclusive right of your mate even as the walls of patriarchy begin to crumble. To a bourgeois feminist, feminism is the empowerment of wealthy women to take on exploitative positions in society, such as becoming CEOs or upper management, not the toppling of patriarchy altogether. That which doesn’t affect them is unnecessary to them and the most effective means of fighting it are a threat to bourgeois interests.
To the bourgeois feminist, it is inconceivable that a woman would ever willingly have sex for money – as with prostitution or pornography – or engage in other forms of sex work such as stripping. It allows access to that which they were taught is sacred, the woman’s sexuality, and thus they view it as necessarily degrading. But, while the jobs available to the rich and powerful are generally not degrading, those available to most of us are exploitative and degrading – we sell every bit of energy we have – and often our dignity – doing things we would rather not and this involves us being degraded by bosses and giving complete submission to customers, catering to their every whim. Have you ever heard the expression “the customer is always right?” That is pretty damn degrading to a worker who has to lower themselves into submission in service to that maxim. The entire time you’re reminded how “lucky” you are to be able to do this instead of being economically abandoned to poverty and homelessness. In fact, this work becomes more and more degrading as time goes on.
However, some men and women are able to escape this by engaging in sex work. It isn’t for everyone and no one is calling for people to be forced into it or for people to be denied disability benefits under a claim that they could engage in sex work, but there are those who are fine with it. Many sex workers have much more control over their working conditions and even enjoy the full value of their labor – something denied to almost all workers. In fact, white collar workers generally get half the value of their labor while blue collar workers settle for one third. When a prostitute or escort doesn’t feel comfortable with a client, they can simply opt to back out – assuming they’re not trafficked – whereas your normal worker cannot.
In fact, many female sex workers report that their clients are generally nicer to them than guys are, or were, to them when on non-sex work related dates. There are certainly problem clients, but they don’t tend to get repeat business.
Given this, it is no surprise that those who are able to free themselves from the backward notion that you are somehow lessened by engaging in sex would seek an alternate to the degrading conditions of work under capitalism. The voluntary sex worker is no myth.
Sex Work in the Age of the Internet
Unlike in ages past, sex work hasn’t had to rely upon physical locations such as brothels or strip clubs nor has it had to rely upon walking the streets in order to find clients. Neither has it had to rely upon agencies who manage sex workers and send them out to clients. The internet has freed sex workers from many constraints they had been forced to rely upon before. Strippers may still tend to strip in clubs and pornography is still generally shot in studios, but for many sex workers the internet has provided a means to be independent and safe. The need for madams and pimps or a corporate agency to find them work has almost all but disappeared.
For prostitutes (who charge per act) and escorts (who charge for their presence with no guarantee of sex), they could cheaply advertise their services, find clients, and screen them without the need of an intermediary who might exploit them. In fact, it also allowed for them to share information on dangerous clients – those who are violent or who might try to enslave a sex worker. These sites were sometimes shut down in the past by authorities because they also shared information about police stings, but there were ways to communicate and keep workers away from dangerous situations.
What Will FOSTA and SESTA Do?
FOSTA passed the House on February 27 and has not yet been voted on by the Senate. It provides a 10 year sentence for anyone who “owns, manages, or operates an interactive computer service […] to promote or facilitate the prostitution of another person.” It raises this to 25 years if the prostitution is of five or more persons or if it were intentionally or recklessly aiding in sex trafficking. From this alone we see this intended to punish those who are not aiding in sex trafficking, but those who are merely aiding in sex work.
SESTA, the senate counterpart which has been put on the Senate schedule but not voted upon yet, is a bit simpler. It should be pointed out that FOSTA also does almost everything that SESTA would do, though what SESTA does is only secondary under FOSTA. SESTA would remove protection under the Communications Act of 1934 if an online servicer or user is determined to be enabling sex trafficking. FOSTA doesn’t mention users, only the providers and those working for providers. These are the protections that prevented the providers from being responsible for what third parties did with their service.
Now, these may give a glimpse of fighting sex trafficking if you completely remove the context of how the US legal system treats such acts in reality. For example, other than explicitly trafficked persons, street walkers (those sex workers who literally walk the streets to find someone to sell sex to), and a few jurisdictions where prostitution is legalized, it is hard to find a prostitute. Rather, such sex workers tend to engage in something completely legal: escorting. An escort does not charge for sex or any sex act – sex is not being sold – you simply pay for their time and presence. An escort will generally have sex with you, but they are not under any obligation to do so and you pay the same amount whether you have sex with them or not.
However, despite being legal, that hasn’t stopped law enforcement from charging escorts with prostitution. Police generally do not seek out sex traffickers, or even pimps and madams, they seek out escorts. There is no reason to believe that prosecutors will not seek to charge those with enabling escorting with enabling prostitution.
Likewise, they attempt to interpret any sex work as sex trafficking – odd as it is that in this supposed effort they punish the alleged victims and not the perpetrators. There is no reason to believe that those enabling only sex workers would be ignored – they would be said to be enabling sex trafficking however it came about.
This brings us to the sex worker I interviewed on this matter, who we will call Erycina – neither her legal name nor her working name. As I stated earlier, she is a sex worker by choice and was twice trafficked. Just how did she end up being trafficked – not once, but twice?
“I was desperate” explains Erycina. “I saw red flags – the first time the [pimp] asked me if I had anyone who would miss me – but I was desperate to make money. I was homeless. I was once woken up by a cop urinating on me in an alley. I had to try to make some money and so I did something I knew was a bad idea.”
She managed to escape the first time with the assistance of black bloc anarchists – the type of anarchist well known for being the backbone of Antifa – and the second time by jumping out of a moving car.
But what does happen with FOSTA and SESTA? Well, all the sites they have used to work independently are shutting down. In fact, even sites that weren’t generally used for sex work have shut down, such as Craigslist taking down its personals section. Fetlife, a site which acts as a fetish personals site, was reportedly considering shutting down if Trump signed FOSTA into law. The law change would make it so that the providers of these personals services could be harshly imprisoned because of what some posters might do. So what happens to sex workers?
Well, they lose that means of independent advertisement, and so they lose their current means of subsistence. What happens when you lose subsistence? You get desperate – you take chances – you may end up trafficked like Erycina has been. In fact, when Backpage originally shut down after major credit card carriers refused their services for payments, Erycina took chances again despite being twice trafficked.
“I didn’t know what to do so I found an escort service and worked for them for awhile. The problem was that I couldn’t turn down clients anymore – if I did the service would let me go and I needed to be able to make money” she said. “I found myself with abusive clients and there was nothing I could do – not realistically anyway. Then I found myself drugged and nearly trafficked again – but the woman who was supposed to watch over me let me escape.”
Taking away the ability of sex workers to safely do their jobs makes them desperate; it makes them take chances that should not be taken. It forces them to run back to the arms of services, pimps, and madams, because the tools they needed to be independent were taken away from them. It makes them a lot easier to traffick. It takes away their discretion and places it in the hands of third parties who profit off of them and places them under the maxim of “the customer is always right.”
There is no secret that Backpage did host advertisements from sex traffickers among the many legitimate escorting posts they had. It is also no secret, though they may have been reluctant at first, that Backpage has been instrumental in helping law enforcement bust sex traffickers. Sex traffickers were willing to use the site for advertising, despite the fact that Backpage was attempting to bust them because it became a necessity since so many people sought out services from the site. Losing Backpage itself sent sex workers scrambling to survive in 2017.
To someone thinking about it minimally, it may seem that sites like Backpage are something that traffickers benefit from – but they really aren’t. Traffickers had no problem finding constant work for their slaves before the internet and it is only the fact that it existed as competition to their traditional routes that independent sex workers either couldn’t use effectively or realistically. Sex traffickers – or any sort of human trafficking since it is not limited to the sex trade by any means – do not need these sites unless they exist to compete with their traditional advertisements. FOSTA and SESTA do not harm them one bit.
Rather, they have much more ready access to their victims who are now taking chances instead of having the luxury of being careful. They will ignore red flags in the quest for food and shelter. Others will flock to the middlemen who will exploit their labor. Of course, there have already been reports of sex workers committing suicide when facing hunger and homelessness in the face of FOSTA and SESTA.
This is why these bills are really giveaways to sex traffickers – it makes their jobs so much easier. Even if the market saturated for sex, they could send those they enslave to work in sweatshops. FOSTA and SESTA will increase sex trafficking, they will lead to the enslavement of more people than before – it is as if the sex traffickers wrote the bills like how the Affordable Care Act was written by insurance companies.
In the meantime, those not involved in sex work lose a lot in order to aid these sex traffickers. You want to have a no strings attached sexual encounter – which you would use a hookup site for? Well, that’s disappearing fast. Do you want to have video sex through Skype – perhaps with your spouse that is out of town – you cannot do that as of May 1. You cannot even use vulgar words. These sites no longer feel protected in case one person, one day, might possibly use it to do something that may turn out to be involved in, or even simply perceived to be involved in, sex trafficking. We all lose out – except sex traffickers… ironically.
But If You Want to Fight Sex Trafficking…
If you want to fight against sex trafficking, there actually is quite a bit that can be done to actually fight it. In fact, there are also ways to ensure that no one engages in sex work at all unless that is absolutely what they want to do. FOSTA and SESTA are damaging, but there is much that can be done positively in the name of positive change.
First, you can fight against the direction our economy has been going: wealth inequality has gone to the extreme in the United States and is widening. It was three years ago that we saw that the top tenth of a percent of people had as much wealth as the bottom 90%, in better times. In fact, the United Nations is actively investigating just how horrible poverty is in the United States, finding that our poor live as poorly as those in third world nations despite the immense wealth available in the nation. Options are not available to people in this nation and so they become desperate.
Those stuck in this poverty are, naturally, desperate. This is the same poverty that FOSTA and SESTA seek to create amongst sex workers and which is driving them to take drastic actions that human traffickers can exploit. Government policies that ensure better pay for workers and actively create jobs reduce desperation and, in turn, opportunities for human traffickers to exploit people. The failure of our society to care for those who are not wealthy increases human trafficking. Socialism, where workers and the community collectively own and control the means of production and can provide for full employment would actually be ideal to remove any and all desperation.
If you think that no person could voluntarily engage in sex work – that they are all forced into it by the economy – then this is also the perfect way to fight against sex work – remove any and all reason for anyone to feel they have to do sex work to survive. You may be disappointed to find out that there are still many individuals who will prefer sex work to other forms of work, but there certainly are sex workers who engage because there aren’t other sufficient options available to them and this gives them options.
Second, decriminalize all sex work. It is important to reiterate here that people who are trafficked for sex do not engage in sex work – the term only applies to those voluntarily engaging in it. This doesn’t just mean making it so sex workers aren’t constantly targeted by police and find themselves unable to seek assistance from the authorities when they are in danger; it means making the purchase of services legal as well.
It is certainly important for sex workers to be able to access help – as it is currently, going to the police is only a surefire way to get arrested and charged, not taking your allegations seriously. Sex workers do not generally see police as a means to resolve any issue whatsoever. Several states, such as Michigan and Hawaii, have had to specifically make laws to prevent police officers from raping sex workers by having them engage in sex under false pretenses: that they would get paid. Certainly police abuse does not end with sex workers and major police reforms or complete restructuring will be necessary.
For example, you may recall the story of Cyntoia Brown, who was being trafficked and was sold as a personal sex slave to a realtor. She killed her captor and is now facing life imprisonment for what clearly was justified by her enslavement and justifiable fear. It is important to note that she wasn’t only found guilty of murder, but also found guilty of engaging in prostitution – something she was forced into and did not benefit from financially. Law Enforcement priorities are completely backward and tend not to aid the victims of human trafficking.
However, after a substantial amount of time you could get a police force, or other law enforcement organization, which is both trustworthy and trusted. If sex workers can and do trust police there is no doubt that they would be more than willing to report any red flags that might lead to human trafficking or report that someone attempted to assault and/or traffick them. There is just absolutely nothing but reasons to not trust law enforcement as it is currently and building trust not only requires substantial change but substantial time to prove their trustworthiness.
Yet, it also is important to make the purchasing of sex legal as well. The men and women that buy the services of sex workers must feel safe in doing so because if they don’t, that forces the sex workers to agree to keep things on the down low, hidden from everyone else. Not surprisingly, this is exactly the type of situation that puts the sex worker at risk of violence or abduction.
Third, actually allocate funds to actively fight human trafficking instead of wasting those funds on trying to bust sex workers. Much is done to stop prostitutes and escorts from applying their trade – but little is done to stop actual perpetrators of sex trafficking – cops are fine to just bust the victims and those engaging in sex work unrelated to trafficking while letting those who actually enslave human beings to run free.
Fourth, we could be creating regulations on these third party providers that requires assistance that helps catch sex traffickers while leaving sex workers unscathed. Backpage did it and it caught sex traffickers and got them convicted – meanwhile no sex worker was harassed for engaging in their activities ensuring the site was still used properly. There is no reason that this could not be applied to online providers instead of making them criminally responsible for the misuse of their platforms.
Finally, you can financially contribute to help sex workers from making dangerous decisions out of desperation. I’m not saying hire the services of a sex worker here, but rather making a donation to an emergency fund that sex workers are circulating online. The fund prioritizes payments to the most vulnerable of sex workers and your donation can help actually prevent sex trafficking.
Featured Image via Survivors Against Sesta. Fair Use.
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