On Sunday, Democratic presidential candidate Bernie Sanders revealed a sweeping, 6,000-word reform plan aiming at totally overhauling the criminal justice system. The plan featured many progressive touchstones, from abolishing the death penalty to ending cash bail to legalizing marijuana and expunging sentences for drug possession. However, there was one criminal-justice issue it did not touch on: sex work, specifically sex-work decriminalization. A few days later, Sen. Elizabeth Warren also released her own expansive criminal justice reform plan, which similarly did not mention the issue.
This omission from Sanders and Warren — two of the most progressive 2020 Democratic candidates — was glaring, in part because both candidates had previously made statements indicating they were open to the idea of decriminalizing sex work. Earlier this year, Sanders said that decriminalization “should be considered”; as recently as Saturday, he had fielded the question in a live-streamed Q&A hosted by the Working Families Party, saying that he considered sex work decriminalization “an issue that is worthy of serious study,” to audience applause. Similarly, last June, Warren indicated she was open to decriminalization, telling the Washington Post, “Sex workers, like all workers, deserve autonomy but they are particularly vulnerable to physical and financial abuse and hardship. We need to make sure that we don’t undermine legal protections for the most vulnerable.”
After the plans were released, sex workers and sex-work decriminalization activists were disappointed, if not exactly shocked. “I think it was a little bit surprising, because I see both of those candidates as being a bit more unafraid [to take strong stances on controversial issues], and their work is really rooted in listening to their communities,” says Tiffany Caban, the former candidate for Queens district attorney who made sex work decriminalization a central issue of her platform (and whose campaign was endorsed by both Warren and Sanders). That said, “there was certainly a part of me that was not surprised, because despite the tremendous momentum and visibility the sex work decriminalization movement has gotten, it’s still a bit like a landmine [for most politicians]. People don’t want to go and touch it,” says Caban.
Others were more visibly frustrated by Warren and Sanders’ apparent refusal to take a firm stand on the issue. Despite both making public statements hinting at otherwise, “nobody’s engaging us. They’re avoiding the conversation and doing political doublespeak,” says Kristen DiAngelo, executive director of the Sex Workers’ Outreach Project (SWOP) Sacramento. By omitting sex workers’ rights from their criminal justice reform plans, Sanders and Warren “send a huge message they still believe we are not worthy,” she says. And in the wake of legislation that arguably puts thousands of sex workers’ lives at risk, that message truly resounds.
To be fair to Sanders and Warren, the issue of sex workers’ rights has not been a central, or even marginal one, in past election cycles. Sex workers have been pushing for decriminalization for decades, arguing that criminalizing sex work pushes the industry underground and endangers marginalized individuals. Both the World Health Organization (WHO) and Amnesty International support decriminalization, on the grounds that decriminalization helps reduce the risks associated with sex work, such as violence, trafficking, and sexually transmitted infections. Yet the movement gained relatively little traction in the public consciousness until relatively recently, when lawmakers started flirting with the issue on a local level, with Washington, D.C. and New York State introducing decriminalization bills in 2017 and earlier this year, respectively. While the bills didn’t pass, they garnered national attention, forcing the hand of politicians to address the issue.
The 2018 passage of SESTA/FOSTA, bills that were ostensibly intended to curb online sex trafficking, also helped draw attention to the issue. The Stop Enabling Sex Traffickers Act (SESTA) and Fight Online Sex Trafficking Act (FOSTA) not only prompted many previously adult-friendly social networks such as Tumblr to change its policies regarding sexually explicit content, but also shuttered many websites that sex workers used to promote their services and vet prospective clients. Sex workers have argued that the bills jeopardized their safety and forced many to work in the streets. (Harris, Booker, Sanders, and Warren all voted in favor of SESTA/FOSTA; only Sen. Mike Gravel, who is no longer in the presidential race, openly advocated for its repeal.)
Public support of sex work decriminalization is also on the rise: According to one May poll cosponsored by Decrim NY and Data for Progress, 56% of Democratic voters support full decriminalization of consensual adult sex work, which would mean that those who buy and sell sex would not be subject to arrest or incarceration. Even outside the Democratic party, support for decriminalization is fairly high, as indicated by a 2016 Marist and WGBH Boston national poll, which found that 49% of adults believe that paid sex between two consenting adults should be legal. (It’s worth noting, however, that the poll did not appear to differentiate between legalization and decriminalization, the latter of which is favored by most sex workers’ rights advocates). More than many other issues, with the possible exception of marijuana legalization, sex work decriminalization does not fall along specific political lines. “It’s not a liberal or conservative issue,” says DiAngelo, pointing out that many people who consider themselves conservative support decriminalization on the grounds that the state should not interfere with people’s individual sex lives.
All of these factors combined have culminated in a political climate where sex workers’ rights is no longer a niche issue, with journalists regularly confronting candidates with the question. And sex workers’ rights activists acknowledge that this, in itself, is “history-making,” as DiAngelo puts it.
Yet the fact that there does not appear to be much by way of action on behalf of Democratic candidates has left a sour taste in many activists’ mouths. It also raises the question of whether they actually are as open to the issue as they claim to be, particularly in light of Warren’s bipartisan effort with Sen. Marco Rubio to reintroduce a 2017 bill, the End Banking for Human Traffickers Act, which passed the House Foreign Affairs Committee earlier this year. Though ostensibly intended to curb sex trafficking, the legislation would have the effect of encouraging banks to refuse service to sex workers and those even tangentially involved with the sex industry. “They censored the internet,” says DiAngelo. “Now, [if the bill passes], they’re gonna end up censoring our financial system.”
It’s this conflation between sex trafficking and consensual sex work that arguably led to so many politicians supporting SESTA/FOSTA in the first place: Because most lawmakers, regardless of political affiliation, are happy to say that nonconsensual sex work is bad, supporting legislation to fight it is an easy way to score points with their constituency, even if that ends up hurting those who do sex work of their own volition (and may even — gasp — enjoy it). The conflation between sex trafficking and sex work may also help explain why political candidates are unwilling to take a stance on decriminalization, despite the larger public conversation swirling around the issue. Indeed, many people who self-identify as feminists — particularly women, who were significantly less in favor of legalizing sex work than men, according to the 2016 Marist poll — are strongly opposed to decriminalization, believing that the sex industry is inherently exploitative and that no woman would offer sex for money of their own volition. (This discussion is heavily skewed in terms of gender, despite the fact that many sex workers — and arguably those most affected by criminalization, such as queer, nonbinary, and trans sex workers — do not identify as female.)
Sex workers’ rights activists strongly deny that this is the case, arguing that criminalization hurts sex workers regardless of whether they are doing the work consensually or not. But the belief that no individual could possibly do sex work of their own volition is widespread enough, particularly among feminists, that it may play a role in candidates’ decisions to include it in their public platform. “They’ve learned about it. They’re just choosing not to touch it,” says DiAngelo, citing the possibility that Democratic candidates are specifically afraid of losing the votes of “the carceral feminists” — a term for anti-trafficking advocates who equate all forms of sex work with sex trafficking — “who think we’re being brainwashed.” That may be especially true for Sanders, who has less support among women than Warren and has a history of being criticized for failing to be strong enough on “women’s” issues such as reproductive rights, whether these critiques are warranted or not. (The Sanders and Warren campaigns did not respond to Rolling Stone‘s requests for comment.)
Caban is optimistic that Sanders and Warren will eventually come out with a stance on the issue. “I’m hoping the reason [they omitted it from their plans] is they want to engage with those directly impacted. I’m hoping it means there’ll be conversations with sex workers and advocacy groups to get the information they need,” she says. Caban also points out that she would prefer Sanders and Warren “not have a position rather than advocate for a Nordic model or a position that does a lot of harm.” (The Nordic model, also known as partial criminalization, calls for arresting and charging clients who buy sex, but not sex workers themselves; it has been endorsed by fellow Democratic presidential candidate Sen. Kamala Harris, and has been strongly criticized by sex workers’ rights advocates for further contributing to the stigma associated with the industry, as well as negatively impacting those who do survival sex work.)
Further, not every sex workers’ rights activist believes there is urgent need for candidates to take a strong, unambiguous stance in favor of decriminalization. “Rights and safety don’t just come from decrim,” says Nina Luo, steering committee member for Decrim NY. “It comes from federal housing policy, open borders, non-discriminatory access to health care, especially for transgender people and people of color. And a lot of those things are addressed [by Warren’s and Sanders’ plans].” She predicts that the conversation over decriminalization will continue to unfold on a more grassroots level, with state and local politicians rallying for legislation in favor of decriminalization and continuing to garner visibility and support for the movement. “Ten years ago, people didn’t think it was important to talk about transgender rights because it was such a small population. A similar thing is happening with the sex work conversation,” she says, adding that the omission of the issue from Sanders’ and Warren’s agendas indicates the country may not be “quite ready to have the conversation” about decriminalization.
While that very well may be the case, a lot can change in an election cycle — and given the already tremendous growth of the sex workers’ rights movement within a short period of time, it’s certainly possible that the issue could resurface later on in the race, or that it could serve as a way for the winnowing field of candidates to differentiate themselves from each other, says Caban. “We have this momentum, and we should be trying to push these conversations as far and wide as we can,” she says, adding that the onus is now on activists and local organizers to “hold people’s feet to the fire.”
Regardless of whether the Democratic candidates will come out with a firm stance on sex work decriminalization, the truth is that all of them — not just Warren and Sanders — have a lot to answer for in terms of their current record. Data on the effects of SESTA/FOSTA on marginalized populations is still trickling out, but what we know so far is not good. Earlier this year, San Francisco news outlet KPIX 5 reported that the city had seen a 170% increase in sex trafficking post-SESTA/FOSTA, due to the bills having driven sex workers onto the streets; there were also reports of increased rates of violence, as the closure of adult classifieds websites effectively limited sex workers’ ability to vet clients. DiAngelo says she has personally known multiple sex workers who have been killed in the past year, and she predicts the coming years will also be a “bloodbath,” unless it becomes more politically advantageous for politicians like Sanders and Warren to take a stand on sex workers’ rights.
“We need society to stand up with us,” she says.