Historically, the United States responds to discomfort or perceived societal “deviance” with criminalization. One such example is poverty, which the government criminalizes by imposing disproportionately high fees on low-level offenses. This phenomenon, known as mass criminalization, takes individuals and brands them as criminal.
The criminalization of sex work is unnecessary and inherently harmful. Human Rights Watch, an international human rights organization, argues that the criminalization of voluntary, consensual sex violates the autonomy of adults. Nevertheless, in most states, laws prohibit individuals from exchanging sexual activity for any form of money or compensation. For many sex workers, this can mean hefty fines and even jail time. In looking critically at the history of American prisons, it becomes clear that the criminalization of sex work is rooted in the desire to control individuals and their bodies, to deem them inherently “criminal,” and to make a profit off of their subsequent incarceration. In order to step towards a just society, we must decriminalize sex work.
The criminalization of sex work leads to sex workers living in fear of seeking necessary health and safety services. A research brief by the American Civil Liberties Union (ACLU) found that the criminalization of sex work led to a heightened risk of violence against sex workers, lower likelihood that they would report crimes against them, and higher rates of sexually transmitted infections. In fact, the study found that “decriminalization could result in the prevention of over one-third (33-46%) of projected HIV transmissions among female sex workers between 2014-2024.”
These negative effects especially impact trans women and people of color. The National Transgender Discrimination Survey (NTDS) surveyed 6,400 transgender adults across the United States. Of the respondents who engaged in sex work, 64.1% reported mistreatment at the hands of the police, including physical and sexual assault. 40.6% of Black and Brown respondents also reported being HIV+, compared to 7.0% of non-sex workers. Through the decriminalization of sex work, we could begin to mitigate these harmful effects.
In an attempt to address the harm inherent in criminalizing sex work, many lobby for laws that regulate the sale of sex, instead of simply banning it. However, the legalization model would continue to criminalize sex workers who operate outside of the defined boundaries laid out by the state. As explained by Molly Smith, a sex worker herself, legalization would exclude sex workers who are already most harmed by the current system of criminalization, including those who are undocumented. This is why sex workers like Smith have instead continued to push for decriminalization, which would end the policing of sex workers altogether. While legalization imposes potentially harmful regulations on sex workers, decriminalization has been proven to decrease instances of reported rape and sexually transmitted infections.
Sex work is a legitimate form of work, and those who engage in its practice deserve the same respect, compensation, and protections afforded to those in other fields. Anything less is insufficient. It’s unbearably clear that the current system of criminalization is failing to protect sex workers. Through decriminalization, we can work to create a system where sex workers are ensured safe working conditions and access to public benefits. We can step away from mass criminalization, and finally address the deep flaws in our criminal legal system as it exists today. In doing so, we can better support women, including trans women and women of color. All of this is possible if we have the will and the courage to make it so.