The controversial anti-sex trafficking law is an example of sloppy legislation that has already done untold harm to marginalized communities, argues New York Congressional candidate Suraj Patel.
Illustration by Paul Glover. Photo by Barcroft Media via Getty
Earlier this year, Congress passed a deeply irresponsible and dangerous bill known as SESTA/FOSTA, which Donald Trump promptly signed into law. Proponents of the bill hoped SESTA/FOSTA would hold sex traffickers liable by making websites responsible for the third-party content posted on them. In reality, SESTA/FOSTA has rolled back internet freedoms and inflicted deep damage on already-marginalized communities, putting lives at risk while setting the fight against trafficking back decades.
Sloppy legislating is nothing new from lawmakers who don’t listen to the communities that their policies impact, but SESTA/FOSTA is an especially terrible law that has been sharply condemned by anti-trafficking organizations, civil rights groups, and even the federal anti-trafficking prosecutors who would have to enforce it.
Freedom Network USA, the largest anti-trafficking network in the country, says the law “will not provide a meaningful improvement in anti-trafficking efforts, and may cause severe consequences for sex workers and trafficking victims alike.” The American Civil Liberties Union opposes the law as “a risk to freedom of speech on the Internet as we have come to know it.” The Department of Justice says the law will have “unintended consequences” that actually make it more difficult to prosecute sex traffickers by “creating additional elements that prosecutors must prove at trial” and that parts of it are simply “unconstitutional.”
SESTA/FOSTA has actually put sex workers in danger; some are already reporting that pimps are capitalizing on their new vulnerability now that websites like Backpage have shuttered. It’s also done nothing to deter human traffickers, who have moved to the dark web and forced their victims out onto the streets. Evidence suggests that SESTA/FOSTA could reverse a 17 percent reduction in homicides targeting female sex workers. Moreover, marginalized populations disproportionately use sex work to survive. As a result, SESTA/FOSTA has been especially harmful to queer and trans people, immigrants and migrants, women of color, the homeless, and the disabled. This bill is only the continuation of our country’s policies profiting off the mass incarceration of already vulnerable people.
It is critically important that advocates for marginalized communities and trafficking survivors stand up and call to repeal SESTA/FOSTA, and work to undo the damage it has already inflicted.
SESTA/FOSTA has been especially harmful to queer and trans people, immigrants and migrants, women of color, the homeless, and the disabled.
Not all human trafficking is sex trafficking. In fact, a much larger proportion of trafficking is labor trafficking. Once SESTA/FOSTA is repealed, we should pass legislation that screens for trafficking in all relevant arrests while closing loopholes in labor laws that exempt the agricultural sector, family businesses, and children from such screening—loopholes that stymie our fight against traffickers.
We must invest real resources into existing Department of Justice programs like the Community Oriented Policing Service (COPS) to rebuild trust and coordination between trafficking-affected communities and law enforcement, so that vulnerable communities and individuals have the resources and capabilities to fight back against trafficking in its early stages. The United States has plenty of existing laws targeting sex trafficking, but we fail to consistently enforce them, such as when courts fail to mandate financial restitution to sex trafficking victims.
Only by centering and respecting trafficking survivors and experts will we be able to identify potential sex trafficking and integrate this information into finding trafficking victims and prosecuting traffickers. We must develop procedures for cooperation and data sharing between law enforcement and websites where online trafficking may occur. Most importantly, we must work to prevent sex trafficking in the first place.
Trafficking prevention starts from an understanding of the root causes of exploitation in the sex trade, which include poverty, lack of education, poor access to stable and affordable housing, undocumented status, punitive criminalization of sex workers, and LGBTQ discrimination, including parental rejection of LGBTQ youth leading to youth homelessness. Indeed, criminalization of sex workers disproportionately harms marginalized populations. This is clearly apparent in New York City, where 70 percent of defendants facing prostitution charges in Brooklyn are black women. The Legal Aid Society of New York has even challenged the constitutionality of practices that wrongfully arrest transgender women who are black and Hispanic under anti-loitering laws purportedly designed to combat sex work. Undocumented immigrants are stalked by ICE at prostitution diversion courts in New York.
The stigma of sex work and having an arrest record make it nearly impossible for people to exit the sex trade. The fewer viable economic choices people have, the more likely they are to be exploited in their attempt to survive. This means marginalized populations are disproportionately vulnerable to trafficking as a result of criminalization. When we fail to target these root causes through economic, immigration, and criminal justice reform and the provision of housing and social services, we fail to fight trafficking. We fail the victims we claim to help.
We must completely overhaul how we identify, investigate, and prevent trafficking so that we can actually reduce the amount of trafficking taking place. Moving it out of sight, the way that SESTA/FOSTA has, just makes things worse.
Elected officials have an obligation to listen to people with lived experiences in the sex trade, value their human rights, fight trafficking, and meet their needs with real, empathetic services and protections. Centering their voices is critical to creating policy that reduces exploitation and prevents trafficking before it happens.
It’s easy to sign onto a bill about trafficking without taking time to listen to community about the impacts. I’m not interested in scoring cheap political points by throwing trafficking victims and sex workers under the bus in the name of being “tough on crime.” Real anti-trafficking work is hard, and I’m committed to fighting that fight.
This editorial reflects policy position developed in direct partnership with trafficking experts and impacted communities.