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The Movement to Criminalize Sex Work in the United States

Author(s): Ronald Weitzer


Source: Journal of Law and Society , Mar., 2010, Vol. 37, No. 1, Regulating Sex/Work:
From Crime Control to Neo-liberalism? (Mar., 2010), pp. 61-84
Published by: Wiley on behalf of Cardiff University

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JOURNAL OF LAW AND SOCIETY
VOLUME 37, NUMBER 1, MARCH 2010
ISSN: 0263-323X, pp. 61-84

The Movement to Criminalize Sex Work in the United States

Ronald Weitzer*

Until recently, prostitution was not a prominent public issue in the


United States. Law and public policy were relatively settled. The past
decade, however, has witnessed a growing debate over the sex trade
and the growth of an organized campaign committed to expanding
criminalization. A powerful moral crusade has been successful in
reshaping American government policy toward sex work - enhancing
penalties for existing offences and creating new crimes. Crusade
organizations have advocated a strict abolitionist orientation toward
all forms of commercialized sex, which are increasingly conflated with
sex trafficking. This paper examines the impact of this movement on
legal norms and government policies. I argue that the moral crusade,
and its government allies, are responding to the growth of the sex
industry in recent years and to fears of its normalization in American
society.

In November 2008, residents of San Francisco, California, voted on a ballot


measure that would have de facto decriminalized prostitution in the city. The
measure stipulated that the police would discontinue enforcing the law
against prostitution. The measure failed, but was endorsed by a sizeable
minority of voters - 42 per cent. Four years earlier, Berkeley, California
voters had considered a similar proposal, with 36 per cent supporting it. As
this paper will demonstrate, the San Francisco and Berkeley cases are
entirely exceptional in contemporary America - where liberalization of
prostitution policy is rarely discussed by political leaders let alone voted on
by the public.1 As a 1999 commission in Buffalo, New York, reasoned,
'since it is unlikely that city or state officials could ever be convinced to

* Department of Sociology, George Washington University, Washington DC


20052, United States of America
weitzer@gwu. edu

1 An exception is a bill in the Hawaii State Legislature in 2007, which would have
decriminalized indoor prostitution and zoned street prostitution. The bill failed.

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decriminalise or legalise prostitution in Buffalo, there is nothing to be gained
by debating the merits of either'.2
Although some observers have documented a growing 'mainstreaming'
or 'normalization' of the sex industry - especially regarding pornography
and stripping, where there has been some spillover into mainstream media
coupled with sheer abundance on the Internet3 - prostitution remains beyond
the pale in the United States. Indeed, prostitution is being increasingly
demonized, marginalized, and criminalized as a result of the efforts of a
robust moral crusade. The crusade initially targeted sex trafficking, but then
expanded its targets to prostitution, pornography, stripping, and all other
types of commercial sex.
The punitive trend may be viewed as a reaction to the increasing
availability and mass marketing of sexual services and to what crusade and
political leaders view as an alarming normalization of sex for sale. In other
words, with the help of the Internet, the neo-liberal deregulation of
commerce and flourishing of free markets has allowed the sex industry to
expand as never before and on a global scale. Neo-liberalism also implies
that individuals have the 'right' to engage in sexual commerce. I suggest that
it is precisely this loosening of traditional sexual mores coupled with the
unprecedented availability of a growing variety of sexual services that has
created a huge backlash - in the form of a moral crusade that is attempting to
stem the tide by pressing for laws that outlaw commercial sex work. This is
part of a broader symbolic politics in which certain social forces have fought
other signs of alarming 'permissiveness',4 and have tried to impose a 'new
respectability', one dimension of which Hunt describes as follows:
'New respectability' reflects the aspiring role of upwardly mobile women
concerned to exhibit [independence from men which] produces a renewed
sense of sex and sexuality as risk and danger ... It finds expression in a
preoccupation with the external danger of sex in general and male sexuality in
particular ... This in turn leads to a stress on women's stance as victim ... The
new respectability manifests itself most distinctively in preoccupation with
sexual imagery and representation.5

I would extend the latter point to sexual commerce in general. In the United
States, crusade efforts were latent in the 1990s but gained renewed vigour in

2 Prostitution Task Force, Workable Solutions to the Problem of Street Prostitution in


Buffalo, New York (1999).
3 B. Brents and T. Sanders, 'Mainstreaming the Sex Industry: Economic Inclusion and
Social Ambivalence', this volume, pp. 40-60; L. Cornelia, 'Remaking the Sex
Industry: The Adult Expo as a Microcosm' in Sex for Sale: Prostitution,
Pornography, and the Sex Industry, ed. R. Weitzer (2010, 2nd edn.); E. Jost,
'Making it Mainstream: Sexworkers as Characters' Spread Magazine, Winter 2008,
54-7.
4 D. Wagner, The New Temperance: The American Obsession with Sin and Vice
(1997).
5 A. Hunt, 'The Purity Wars' (1999) 3 Theoretical Criminology 409, at 430.

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the following decade because the advent of the Bush administration opened a
uniquely favourable window of opportunity for crusade organizations to
press their agenda. Developments during the Bush years are consistent with
more general trends toward increased moral regulation in response to
perceived social ills,6 but it is also clear that the Bush administration
radically altered the degree of state access and policy influence for social
forces committed to amplified moral regulation.
This paper examines these developments, drawing on information from
crusade groups, reports of government agencies, and relevant legislation. We
shall see that activists have met with remarkable success in getting their
views incorporated in government policy and law enforcement practices. In
other words, the crusade is not confined to mere debate or sabre rattling, as it
has attained a measure of success in criminalizing sexual services, mani
fested in new penalties, increasing arrests, and growing official
demonization of commercial sex.

A MORAL CRUSADE PERSPECTIVE

A moral crusade is a type of social movement that sees its mission as a


righteous enterprise to combat a particular condition or activity that is
defined as an unqualified evil. Moral crusades have symbolic goals
(attempting to redraw or bolster normative boundaries and moral standards)
as well as instrumental ones (providing relief to victims, punishing evil
doers).7 Some are motivated by genuine humanitarian concerns and desires
to help victims, while others are mainly interested in imposing specific
mores on others, especially when conventional rules appear to be unravel
ling, thus creating anxiety about the erosion of normative boundaries or
threats to a cherished way of life. Moral crusade discourse has three central
characteristics:
inflation of the magnitude of a problem (for example, the number of
victims, harm to society), assertions that far exceed the available
evidence;
horror stories, in which the most shocking cases are described in
gruesome detail and presented as typical and prevalent;
categorical conviction: crusade members are adamant that a particular evil
exists precisely as they depict it and refuse to acknowledge any grey
areas.

By dramatizing the plight of traumatized victims, demonizing perpetrat


and exaggerating the extent of the problem, activists seek to alarm the publ
and justify draconian solutions.

6 Hunt, id.; Wagner, op. cit., n. 4.


7 S. Cohen, Folk Devils and Moral Panics (1972); E. Goode and N. Ben-Yehud
Moral Panics (1994).

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The crusade against trafficking and sex work in the United States (and
some other nations) has been dominated by a coalition of the religious right
and abolitionist feminists. Right-wing members include Focus on the
Family, National Association of Evangelicals, Catholic Bishops Conference,
Concerned Women for America, International Justice Mission, Shared Hope
International, and numerous others. Feminist groups include the Coalition
Against Trafficking in Women (CATW), Equality Now, the Protection
Project, and Standing Against Global Exploitation (SAGE) - and the
American movement is aligned with groups abroad such as the European
Women's Lobby. The term 'abolitionist feminist' refers to those who argue
that the sex industry should be eliminated because of its objectification and
oppressive treatment of women, considered to be inherent in sex for sale.
Mainstream feminist organizations, such as the National Organization for
Women, have been far less active in this debate and have focused on other
issues concerning women.
The religious and feminist coalition members may hold opposing views
on other social issues, such as abortion, but they largely agree on sex work.
The single-issue focus of most of these feminist groups - targeting the sex
industry exclusively - trumps all other issues and explains their willingness
to work with right-wing groups, in order to enhance the legitimacy of their
campaign as a bipartisan left-right enterprise.
During the Bush administration (2001-2008), this crusade gained
tremendous influence over policy making, successfully transforming the
movement against sex trafficking into an official government project
targeting all types of commercial sex. What is most remarkable about the
resulting legal sanctions is how far they diverge from evidence-based policy.
As I have shown elsewhere, almost all of the crusade's claims about
trafficking in particular and sex work in general are either unsubstantiated or
demonstrably false.8 A crucial reason why this crusade achieved such
remarkable success was the lack of a counter-discourse and lobbying by
influential groups. On the few occasions when the movement's claims were
challenged in public forums, those who voiced such opposition were either
ignored or denounced as apologists for pimps and traffickers. This stands in
contrast to some other vice contests, such as debates over drugs and abortion,
where the claims of moral entrepreneurs have been more vigorously
countered by advocates.

8 R. Weitzer, 'The Social Construction of Sex Trafficking: Ideology and


Institutionalization of a Moral Crusade' (2007) 35 Politics and Society 447; R.
Weitzer, 'Flawed Theory and Method in Studies of Prostitution' (2005) 11 Violence
Against Women 934; R. Weitzer, 'The Mythology of Prostitution: Advocacy
Research and Public Policy' (2010) 7 Sexuality Research and Social Policy.

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SEX TRAFFICKING: FACTS AND FICTIONS

The facts regarding sex trafficking are murky, but certain aspects are clear.
We do know that relocation from one place to another for the purpose of
selling sex has long existed. We also know that there are victims of coercive
or deceptive enticement into the sex trade: people are transported to
locations where they are pressured into prostitution. Reports from around the
world indicate that coercive sex trafficking is by no means fictional. We also
know that sex trafficking can be quite lucrative for the third parties involved.
In fact, there are 'few other criminal activities in which the profit-to-cost
ratio is so high'.9 The most exploitative actors make huge profits off the
labour of workers who accumulate little if any money of their own. In
addition, some third parties act violently toward sex workers or demand sex
from them, sometimes over a long period of time.
We do not know how many persons are trafficked across borders every
year. The grand claims made by abolitionist groups that the magnitude of the
problem is huge and growing are entirely unsubstantiated, but quite strategic.
What do I mean by strategic? The size of a social problem matters in attracting
media coverage, donor funding, and attention from policy makers. Moral
crusades thus have a vested interest in inflating the magnitude of a problem,
and their figures are typically unverifiable.10 The anti-trafficking crusade
claims that there are hundreds of thousands or millions of victims worldwide,
and that trafficking has reached an 'epidemic' level. Such claims have been
echoed by government officials in the United States and other nations. When
specific figures are presented, they have ranged from 600,000 to 4 million.
Like the global numbers, domestic American figures have changed
drastically in a short period of time. In 2000, the government claimed that
45,000-50,000 persons were trafficked into the United States annually - a
figure based largely on one government analyst's review of newspaper
clippings.11 This dubious figure was cited in the landmark Victims of
Trafficking and Violence Protection Act, 2000 (TVPA) as justification for
the new law, which states unequivocally that 'Congress finds that ...
approximately 50,000 women and children are trafficked into the United
States each year'.12 The State Department's Trafficking in Persons report
repeated the figure in 2002, but just one year later, the figure fell to 18,000

9 P. Williams 'Trafficking in Women and Children: A Market Perspective' in Illegal


Immigration and Commercial Sex, ed. P. Williams (1999) 153.
10 Goode and Ben-Yehuda, op. cit., n. 7, pp. 36^14.
11 J. Markon, 'Human Trafficking Evokes Outrage, Little Evidence' Washington Post,
23 September 2007. Strikingly similar to developments in the United States on the
trafficking front, as described in this section of the article, is the British situation,
which has also been coloured by moral panic and gross distortion of figures on the
magnitude of trafficking. See N. Davies, 'Prostitution and Trafficking: The
Anatomy of a Moral Panic' Guardian, 20 October 2009.
12 TVPA 2000, s. 102(bl).

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20,000 (a 64-60 per cent decrease from 50,000) and the 2004 and 2005
Trafficking in Persons reports reduced the number further, to 14,500-17,500.
Members of Congress and the Bush administration accepted these numbers
uncritically and passed legislation based on the notion that huge numbers of
people were victims of this newly-discovered 'modern form of slavery' - the
favoured construct of this moral crusade.
Some agencies have questioned the figures. A General Accountability
Office (GAO) evaluation disputed the prevailing estimates for their 'method
ological weaknesses, gaps in data, and numerical discrepancies'. The GAO
concluded that (i) 'country data are generally not available, reliable, or
comparable', (ii) the 'U.S. government has not yet established an effective
mechanism for estimating the number of victims', and (iii) the same is true
for international non-governmental organizations (NGOs) working in the
trafficking area.13 The Justice Department noted the disparity between the
official figures and the number of victims identified, which was attributed to
either faulty figures or insufficient enforcement efforts:
Most importantly, the government must address the incongruity between the
estimated number of victims trafficked into the United States - between
14,500 and 17,500 [annually] - and the number of victims found - only 611 in
the last four years [2001-2004] ... The stark difference between the two
figures means that U.S. Government efforts are still not enough. In addition,
the estimate should be evaluated to assure that it is accurate and reflects the
number of actual victims.14

The 2008 Trafficking in Persons report by the State Department, for the
first time, offered no specific number but instead used the fuzzy term
'thousands'.15 The report also states that 1,379 trafficking victims were
identified between 2001 and mid-2008, but this figure remains but a fraction
of the number of persons allegedly trafficked into the United States during
this time period (using the most conservative official figure: 14,500 x 7.5
years = 108,750).16
Crusade organizations and United States government agencies also claim
that the number of trafficked victims is steadily increasing. A leader of the
Polaris Project, for instance, claims that trafficking is 'fastest growing crime
worldwide'.17 Curiously, this claim contradicts the government's own
numbers on both domestic and international trafficking, which steadily
declined during the eight years of the Bush administration.

13 General Accountability Office, Human Trafficking: Better Data, Strategy, and


Reporting Needed to Enhance U.S. Anti-trafficking Efforts Abroad (2006),
especially 2, 10, 3, 14.
14 US Department of Justice, Efforts to Combat Trafficking in Persons in Fiscal Year
2004 (2005) 4.
15 US Department of State, Trafficking in Persons Report, 2008 (2009).
16 id.
17 Bradley Myles, Deputy Director of the Polaris Project, quoted in J. Iwasaki, 'Human
Trafficking Increasing Worldwide' Seattle Post-Intelligencer, 4 August 2008.

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Internationally, it is clear that sex trafficking has increased in some parts
of the world, especially from the former Soviet Union and Eastern Europe.
The break-up of the Soviet empire and declining living standards for many of
its inhabitants has made such migration both much easier and more
compelling than in the past. But an increase in trafficking after the demise of
the Soviet Union does not mean that trafficking is growing now. Instead, it
may have levelled off. A report by the International Organization for
Migration points to this very possibility: the number of trafficked persons in
south-eastern Europe that were identified and assisted remained virtually the
same (declining slightly) between 2003 and 2004.18
Researchers have criticized the statistics proffered by activists, NGOs,
and governments for their 'lack of methodological transparency' and source
documentation,19 for being extrapolated from a few cases of identified
victims (who are unrepresentative of the victim population),20 and for the
lack of a standard definition of 'victims' as a basis for estimating the
magnitude of the problem.21 But these critiques have largely gone unheeded
by Congress and the Bush administration. As a White House press officer
stated, the issue is 'not about the numbers. It's really about the crime and
how horrific it is... . How can we tolerate even a minimal number within our
borders?'22 In other words, when the numbers are challenged, officials
respond that the numbers are not important. Yet, the government continues
to cite the high numbers as justification for spending huge amounts of money
funding abolitionist organizations that are conducting 'research' on the
problem and on enforcement efforts to identify and rescue victims in the
United States and abroad, efforts that have thus far paid few dividends
relative to the expenditures.23
In a nutshell, figures on the magnitude of the problem are totally
unreliable. Even general estimates are dubious, given the clandestine nature
of the sex trade. There are several red flags: the official numbers have
fluctuated radically over a short time period; relatively few victims of

18 International Organization for Migration, Second Annual Report on Victims of


Trafficking in South-Eastern Europe (2005) 12. The numbers were 1,329 in 2003
and 1,227 in 2004.
19 L. Kelly, 'You Can Find Anything You Want: A Critical Reflection on Research on
Trafficking in Persons within and into Europe' (2005) 43 International Migration
235, at 237.
20 G. Tyldum and A. Brunovskis, 'Describing the Unobserved: Methodological
Challenges in Empirical Studies on Human Trafficking' (2005) 43 International
Migration 17.
21 E. Gozdziak and E. Collett, 'Research on Human Trafficking in North America: A
Review of the Literature' (2005) 43 International Migration 99.
22 Tony Fratto, quoted in Markon, op. cit., n. 11.
23 A. Farrell, J. McDevitt, and S. Fahy, Understanding and Improving Law
Enforcement Responses to Human Trafficking (2008); M. Ditmore, Kicking Down
the Door: The Use of Raids to Fight Trafficking in Persons, Sex Workers Project,
New York (2009).

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coercive trafficking have been located; and there is substantial slippage in
how 'trafficking' is defined and how 'victims' are identified and certified as
such.

1. Complexities and grey areas

Moral crusades paint problems in black and white, but the trafficking issue is
full of nuances - complexities that are rejected by crusade leaders and by
allied government agencies. One gray area is the issue of consent and
intentionality. If the total number of trafficked persons is opaque, it is just as
unclear how many individuals have been trafficked by force or deceit versus
the number who have migrated with full information and consent regarding
the type of work and nature of the working conditions. Crusade leaders
typically lump these together or simply deny that anyone can consent to
working in the sex industry.
Within the population of migrant women who have entered prostitution,
there is a great deal of variation in their experiences of the migration process
and complex relationships with intermediaries, ranging along a continuum.
Migrants also hold diverse goals and desires, which need to be considered in
relation to conditions in their home countries. As Julia O'Connell Davidson
points out, even when migrants experience unpleasant or exploitative work
ing conditions in the destination locale, some consider this 'preferable to
remaining at home, where threats to their security in the form of violence,
exploitation, or straightforward starvation may be far greater'.24 Laura
Agust?n concurs, describing both push and pull factors behind some
migrants' actions:
many people are fleeing from small-town prejudices, dead-end jobs, dangerous
streets, and suffocating families. And some poorer people like the idea of
being found beautiful or exotic abroad, exciting desire in others.25

This is not to romanticize sex work, but it serves as a useful counterpoint to


the victim trope presented by abolitionist forces, which is challenged by a
growing body of research:
An investigation of immigrant Korean massage parlour workers in New
York, for instance, concluded: 'invariably, the Korean women said they
knew the kind of work they were expected to perform ... The women had
relative freedom of movement and had joined the sex business of their
own free will ... [They] had a lifestyle as prostitutes that did not fit the
stereotype of the trafficked woman'.26

24 J.O. Davidson, 'Trafficking, Modern Slavery, and the Human Security Agenda'
(2008) 6 Human Security J. 8, at 9.
25 L.M. Agust?n, Sex at the Margins (2007) 45-6.
26 A. DeStefano, The War on Human Trafficking: U.S. Policy Assessed (2007) 88.

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A study of Vietnamese migrants working in Cambodia found that almost
all of them knew that they would work in a brothel there and their
motivations consisted of 'economic incentives, desire for an independent
lifestyle, and dissatisfaction with rural life and agricultural labor'. After
raids on the brothels by 'rescue' organizations, the women 'usually
returned to their brothel as quickly as possible'.27
In Australia, 'the majority of women know they will be working in the sex
industry and often decide to come to Australia in the belief that they will
be able to make a substantial amount of money ... Few of the women
would ever consider themselves sex slaves'.28
In Europe, research indicates that the women are 'often aware of the
sexual nature of the work ... Many migrants do know what is ahead of
them, do earn a large amount of money in a short time selling sex, and do
have control over their working condition'.29 One investigation of
trafficking from Eastern Europe to Holland found that few of the 72
women interviewed were coercively trafficked and that a large number
had previously worked as prostitutes:
For most of the women, economic motives were decisive. The opportunity to
earn a considerable amount of money in a short period of time was found to be
irresistible ... In most cases recruiting was done by friends, acquaintances, or
even family members.30

These are not isolated findings; other research shows that many migrants
sold sex prior to relocating or were well aware that they would be working
in the sex industry in their new home. One analyst concludes that, 'the
majority of "trafficking victims" are aware that the jobs offered them are in
the sex industry'.31 Whether or not this indeed characterizes the majority, it
is clear that traffickers do not necessarily fit the 'folk devil' stereotype
popularized by the anti-trafficking movement. Some facilitators are
relatives, friends, or associates who make travel arrangements, obtain
necessary documents, provide funds, and otherwise assist with migration.
Many of the Vietnamese women working in Cambodian brothels, for

27 J. Busza, S. Castle, and A. Diarra, 'Trafficking and Health' (2004) 328 Brit. Medical
J. 1369; see, also, the identical findings in T. Steinfatt, Measuring the Number of
Trafficked Women and Children in Cambodia (2003) 23-4.
28 L. Meaker, 'A Social Response to Transnational Prostitution in Queensland,
Australia' in Transnational Prostitution, eds. S. Thorbek and B. Pattanaik (2002) 61,
63.
29 L.M. Agust?n, 'Migrants in the Mistress's House: Other Voices in the Trafficking
Debate' (2005) 12 Social Politics 96, at 98, 101.
30 J. Vocks and J. Nijboer, 'The Promised Land: A Study of Trafficking in Women
from Central and Eastern Europe to the Netherlands' (2000) 8 European J. of
Criminal Policy and Research 379, at 383, 384.
31 J. Doezema, 'Loose Women or Lost Women? The Re-emergence of the Myth of
White Slavery in Contemporary Discourses of Trafficking in Women' (2000) 18
Gender Issues 23, at 24.

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instance, had been recruited and transported by their relatives, including
mothers and aunts.32 These intermediaries have a qualitatively different
relationship with migrants than do predators who use force or deception to
lure victims into the trade.
In short, the evidence indicates that migration for sex work is a complex
and diverse phenomenon. There are several migration trajectories and
diverse worker experiences, ranging from highly coercive and exploitative to
informed and conscious intentionality on the part of the migrant. Such
complexities, nuances, and variations have been ignored or denied by
abolitionist forces and by governments influenced by them.

CONFLATING TRAFFICKING WITH ALL OTHER SEX WORK

When a moral crusade achieves success with respect to its foundational


objective, it may set its sights on other problems that it associates with its
original raison d'etre - the phenomenon of 'domain expansion'. What began
in the mid-1990s as a campaign against sex trafficking has steadily expanded
over time. In addition, over time the focus of the crusade has shifted to 'the
demand', that is, the customers, who are increasingly demonized and
targeted for harsh penalties, as shown below.

1. Targeting prostitution

Religious conservatives have long denounced prostitution as perverse and


sinful, a source of moral decay in society, and a threat to marriage because it
breaks the link between sex, love, and reproduction. The anti-trafficking
campaign has given these conservatives new opportunities to express these
fears, which they do in their publications and websites and in the media. A
government crackdown on prostitution ratifies the religious right's views on
sex and the family. Some feminist crusade leaders also champion rather
traditional views of 'proper' sexuality. The founder of CATW, Kathy Barry,
does so in a remarkable passage in her seminal abolitionist manifesto,
Female Sexual Slavery:
We are really going back to the values women have always attached to
sexuality, values that have been robbed from us, distorted and destroyed as we
have been colonized through both sexual violence and so-called sexual
liberation. They are the values and needs that connect sex with warmth,
affection, love, caring ... Sexual values and the positive, constructive
experience of sex must be based in intimacy ... It follows then that sex cannot
be purchased, legally acquired, or seized by force. 3

32 Steinfatt, op. cit., n. 27, p. 24.


33 K. Barry, Female Sexual Slavery (1979) 227, 230.

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And another CATW leader, Janice Raymond, seems to agree, when she
states that prostitutes' customers 'lack responsibility, intimacy, emotion' in
their sexual behaviour.34
Yet, the core abolitionist feminist tenet is that prostitution is an institution
of male domination and exploitation of women. CATW s website is
unequivocal: 'all prostitution exploits women, regardless of women's con
sent. Prostitution affects all women, justifies the sale of any woman, and
reduces all women to sex'.35 It can never qualify as a conventional
commercial exchange like other service work nor can it ever be organized in
a way that advances workers' interests. As Laura Lederer insists:
This is not a legitimate form of labour ... It can never be a legitimate way to
make a living because it's inherently harmful for men, women, and children
... This whole commercial sex industry is a human-rights abuse.36

Abolitionist groups have fought for policies that target sex trafficking
more than labour trafficking. A journalist sympathetic to the crusade
nevertheless took issue with this exclusive focus on sex trafficking:
To the dominant coalition ... the only slaves - anyway, the only slaves worthy
of American attention - were prostitutes. And all prostitutes were slaves.
Theirs was a circular logic that dumbfounded those who regularly aided real
slaves, real prostitutes, and really enslaved prostitutes.37

Abolitionists were also intent on linking sex trafficking to prostitution.38 The


central premise is that sex trafficking is inseparable from prostitution, and
prostitution is evil by definition. Not only are the two conflated, but activists
also claim that 'most' sex workers have been trafficked.39 Such linkage is a
transparent attempt to lay the groundwork for the crusade's ultimate goal,
that is, to eliminate the entire sex trade. Activist Donna Hughes, for example,
calls for 're-linking trafficking and prostitution, and combating the
commercial sex trade as a whole'.40

34 J. Raymond, 'Prostitution on Demand: Legalizing the Buyers as Sexual Consumers'


(2004) 10 Violence Against Women 1182.
35 Available at: <www.catwinternational.org>.
36 Lederer, quoted in B. Jones, 'Trafficking Cops' World Magazine, 15 June 2002.
Lederer was a leader in the anti-porn movement in the 1980s. Between 2001 and
2009, she was a senior advisor in the US State Department's Trafficking in Persons
office. In 2009, she became Vice-president of Global Centurion, an organization
fighting sex trafficking.
37 E.B. Skinner, A Crime So Monstrous: Face-to-Face with Modern-Day Slavery
(2008) 289.
38 See, for example, M. O'Connor and G. Healy, The Links between Prostitution and
Sex Trafficking: A Briefing Handbook, CATW and European Women's Lobby
(2006); see, also, the article by CATW co-director Dorchen Leidholdt, 'Prostitution
and Trafficking in Women: An Intimate Relationship' (2004) 2 J. of Trauma
Practice 167.
39 D. Hughes, 'Accommodation or Abolition?' National Rev. Online, 1 May 2003, 1.
40 D. Hughes, 'Wolves in Sheep's Clothing: No Way to End Sex Trafficking' National
Review Online, 9 October 2002, 2.

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The American government has fully adopted the crusade's conflation of
trafficking and prostitution. The State Department's website, 'The Link
between Prostitution and Sex Trafficking', draws this 'link' boldly. The site
proclaims that prostitution 'is inherently harmful'; that it 'leaves women and
children physically, mentally, emotionally, and spiritually devastated'; that
legal prostitution 'creates a safe haven for criminals who traffic people into
prostitution'; and that prostitution is 'the oldest form of oppression'.41 The
site documents these notions with footnotes exclusively to writings by
leading abolitionists, including Janice Raymond, Melissa Farley, Donna
Hughes, and Gunilla Ekberg.42 Some government officials privately ques
tioned the crusade's depiction of prostitution,43 but this internal questioning
had no effect on the Bush government's official position that prostitution
was an unqualified evil.
What is missing from this discourse is recognition that prostitution and
trafficking differ substantively: prostitution is a type of labour, whereas
migration and trafficking involve the process of relocation to access a
market. Both empirically and conceptually, it is inappropriate to fuse the
two.
The slippage between trafficking and prostitution is facilitated by
demonization of the client. The identification of 'folk devils' is a staple of
moral crusades, and this is certainly the case here.44 The initial focus on
traffickers has steadily expanded to include customers ('the demand'), who
are seen as the root cause of trafficking. Some crusade members define both
traffickers and customers as 'predators'. Melissa Farley declares that clients
'are not just naughty boys who need their wrists slapped. They could be
more accurately described as predators'.45 A recent report on clients of
prostitutes in Scotland proclaims that 'prostitution is best understood as a
transaction in which there are two roles: exploiter/predator and victim/prey';
the report advocates putting customers 'in the same category as rapists,
paedophiles, and other social undesirables'.46 Donna Hughes offers a blanket

41 US Department of State, 'The Link between Prostitution and Sex Trafficking'


(2004) 1, available at <www.state.gov/documents/organization/38901.pdf>.
42 Gunilla Ekberg is now the co-executive director of CATW-International and is
based in Brussels. Previously she was active in the successful campaign to
criminalize clients in Sweden.
43 Skinner (op. cit., n. 37, p. 283) writes:
But privately, Justice Department officials who actually dealt with victims were
galled that the coalition expected them to find moral equivalency in the
victimization of a $90,000-dollar-a-year call girl in Georgetown, who kept her
own income and worked for herself, and a fourteen-year-old girl, raped fifteen
times a day in a fetid trailer in a migrant labor camp.
44 Cohen, op. cit., n. 7.
45 Melissa Farley, quoted in A. Brown, 'Sex Industry in Scotland: Inside the Deluded
Minds of the Punters' Daily Record, 28 April 2008.
46 J. Macleod, M. Farley, L. Anderson, and J. Golding, Challenging Men's Demand for
Prostitution in Scotland, Women's Support Project (2008) 30, 27.

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indictment: 'Men who purchase sex acts do not respect women, nor do they
want to respect women'.47 The very title of Hughes' report, The Demand for
Victims of Sex Trafficking, seems to imply that customers are intentionally
seeking trafficked 'victims'.
It is true that some clients are indeed predators, but the crusade's
sweeping claims are caricatures. Research on customers cautions against
gross generalizations: they vary considerably in background characteristics,
behaviour, and motives for buying sexual services.48 Some customers act
violently and some seek out under-age prostitutes, but abusive clients appear
to be in the minority.49 In one study, only 8 per cent of arrested customers
had a previous conviction for a violent or sexual offence.50
The focus on prostitution has had important policy outcomes in the United
States. First, most of the enforcement efforts against trafficking have cen
tered on prostitution cases, with much less attention to labour trafficking.51
Since 2006, the Justice Department has created 42 task forces (multi-agency
law enforcement units) responsible for identifying trafficking victims, but
some enforcement agents equate sex trafficking with prostitution, as a recent
assessment revealed: 'some local task forces have focused exclusively on
prostitution, making no distinction between prostitution and sex
trafficking'.52
Second, there has been a crackdown on 'demand'. The 2005 Trafficking
Victims Prevention Reauthorization Act (TVPRA) authorized $25 million
per year to be distributed to police departments for expanded arrests of those
who 'purchase commercial sex acts' and other efforts against clients, such as
funding the creation of John schools,53 which are day-long rehabilitation
programmes for clients, designed to educate arrested customers about the
harms of prostitution and deter future offending. As of 2008, forty American
cities had created such schools, which have also been introduced in Britain
and Canada.54 In just one city, San Francisco, more than 5,700 arrested
clients passed through its John school between 1995 and early 2008.55
The 2008 TVPRA provides resources for additional enforcement. It
contains funding for police data-gathering on the sex trade, studies of 'the

47 D. Hughes, The Demand for Victims of Sex Trafficking (2005) 7.


48 M. Monto, 'Prostitutes' Customers: Motives and Misconceptions' in Weitzer, op.
cit., n. 3; T. Sanders, Paying for Pleasure: Men who Buy Sex (2008); J. Lowman and
C. Atchison, 'Men Who Buy Sex' (2006) 43 Canadian Rev. of Sociology and
Anthropology 281.
49 Monto, id.; Lowman and Atchison, id.
50 B. Brooks-Gordon, The Price of Sex: Prostitution, Policy, and Society (2006).
51 A. Farrell et al., Understanding and Improving Law Enforcement Responses (2008),
52 Women's Commission for Refugee Women and Children, The U.S. Response to
Human Trafficking: An Unbalanced Approach (2007) 14.
53 TVPRA 2005, s. 204(lb, lc)
54 M. Ohtake, 'A School for Johns' Newsweek, 24 July 2008.
55 id.

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use of Internet-based businesses and services by criminal actors in the sex
industry', and for dissemination of best practices for apprehending and
prosecuting those who use the Internet for purposes of prostitution or
trafficking.56 This clearly sets the stage for increased arrests of persons who
advertise sexual services online and who avail themselves of such services.
Many local police departments around the country have increasingly
monitored Internet postings in recent years, using them to arrest providers.
A third important outcome centres on eligibility restrictions for govern
ment funding. Activists successfully pressed the United States government to
adopt a policy denying funding to organizations that were not sufficiently
committed to eradicating prostitution. Today, to be eligible for United States
funding, any foreign NGO working on the trafficking front must declare its
opposition to prostitution and especially legal prostitution. This requirement
was added to the 2003 TVPRA, and it applies to any funds or activities of the
organization, including funds that come from sources other than the govern
ment. The State Department's policy is clear: 'no U.S. grant funds should be
awarded to foreign non-governmental organizations that support legal state
regulated prostitution'.57 This, despite the fact that the Justice Department
had lobbied against the measure, questioning its constitutionality.58
Furthermore, the ban applies to anyone, including Americans, who applies
for funding to conduct research on trafficking.59
Similarly, the 2003 Global AIDS Act requires that any international
organization working to curb AIDS must 'have a policy explicitly opposing
prostitution and sex trafficking' if it wishes to receive such funding. This
applies to American groups in so far as they work with or subcontract work
to international organizations. Organizations that take no position on prosti

56 TVPRA 2008, s. 237(c).


57 US Department of State, op. cit., n. 41, p. 2.
58 A letter from the Justice Department's Office of Legislative Affairs to Rep. James
Sensenbrenner, chair of the Judiciary Committee in the House of Representatives
(dated 24 September 2003), accepted that the government had the right to prohibit
organizations from using government funds to promote prostitution, but opposed the
prohibition on providing grants to organizations if they used separate, non
government money in support of prostitution:
There is substantial doubt as to whether the Federal Government may restrict a
domestic grant recipient participating in a Federal anti-trafficking program from
using its own private, segregated funds to promote, support, or advocate the
legalization or practice of prostitution.... We believe that there is serious doubt as
to whether that provision [in TVPRA 2003] would survive judicial scrutiny if
challenged in court. In particular, we note that the prohibition on grant recipients
using their own private, segregated funds to promote the legalization of
prostitution, as opposed to the practice of prostitution, would be particularly
vulnerable to legal challenge.
Because of these 'serious First Amendment concerns,' the Justice Department
recommended that this provision be deleted from the Bill.
59 National Institute of Justice, Solicitation: Trafficking in Human Beings Research
and Comprehensive Literature Review (2007) 4.

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tution as well as those that favour decriminalization or legalization are thus
ineligible for government funding.60 Failure to do so results in summary
denial of funding.
These funding restrictions cannot help but skew research and intervention
in one direction, eliminating consideration of competing points of view and
further privileging and institutionalizing the abolitionist perspective. In May
2005, 171 American and foreign organizations signed a letter to President
Bush opposing the anti-prostitution pledge because they believe the policy
interferes with promising interventions that require building trust with sex
workers. Because of the restriction, several NGOs have declined to apply for
government funding.
Legal prostitution systems are a prime target. CATW's mission is broad:
to 'challenge acceptance of the sex industry, normalisation of prostitution as
work, and to de-romanticise legalisation initiatives in various countries'.61
Legalization is claimed to pose a symbolic threat to society, by giving the
state's blessing to an institution that oppresses women, and legalization also
allegedly increases trafficking, by removing the constraints on a formerly
illegal and circumscribed enterprise. CATW's co-director, Janice Raymond,
declares that 'legalized or decriminalized prostitution industries are one of
the root causes of sex trafficking'.62 And Linda Smith, director of Shared
Hope International, testified in Congress that the government should
'consider countries with legalised or tolerated prostitution as having laws
that are insufficient efforts to eliminate trafficking'.63 Concerned Women for
America claims that 'legalising prostitution does not remedy the problem of
sex trafficking but rather increases it'.64
The state of Nevada is the only site in the United States where prostitution
is legal and regulated by the government, and therefore has become a target
of abolitionists. These brothels stand out as dens of iniquity ripe for
criminalization. The groundwork for criminalization was laid in a recent
State Department-funded investigation of Nevada's brothels by anti
prostitution activist Melissa Farley. Her report goes out of its way to
demonize the state's legal brothels, and has been criticized by scholars who
have studied the brothels for over a decade.65 I describe Farley's report in

60 See N. Masenior and C. Beyrer, 'The U.S. Anti-Prostitution Pledge: First


Amendment Challenges and Public Health Priorities' (2007) 4 PLoSMedicine 1158.
61 Available at: <www.catwinternational.org>.
62 J. Raymond, 'Ten Reasons for Not Legalizing Prostitution' (2003) 2 J. of Trauma
Practice 315, at 317.
63 L. Smith, Testimony before Committee on International Relations, House of Repre
sentatives, Hearing on the State Department's Trafficking in Persons Report, 19
June 2002, 66.
64 Available at: <www.cwfa.org>.
65 K. Hausbeck, B. Brents, and C. Jackson, 'Vegas and the Sex Industry: Don't Make
Assumptions about the Choices Women Make' Las Vegas Rev. J, \6 September
2007.

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some detail here because it was publicized and praised in the media,
including the influential New York Times, and was given the stamp of
credibility when it was published as an official State Department report. The
report is saturated with wild claims based on anecdotes and flawed infor
mation, typical of Farley's writings.66 First, Farley provides no evidence of
trafficking into the brothels and relies instead on a few individuals'
perceptions to make this connection:
Women are trafficked from other countries into Nevada's legal brothels ... In
Nevada, twenty seven per cent of our forty five interviewees [or just twelve
individuals] in the Nevada legal brothels believed that there were
undocumented immigrants in the legal brothels. Another eleven per cent said
they were uncertain, thus as many as thirty eight per cent of the women we
interviewed may have known of internationally trafficked women in Nevada
legal brothel prostitution.67

Another way of reporting this 'finding' is that as many as 62 per cent did not
believe that women were trafficked into the brothels, while the remainder
either did not have an opinion or believed that there were undocumented
immigrants, who are not necessarily 'trafficked'. Interestingly, Farley
converts the beliefs of a minority into evidence of trafficking. Elsewhere,
Farley writes that a few women in one brothel told her that women in another
brothel had been trafficked from China. Instead of treating this as hearsay,
Farley presents this is factual and calls the women who told her this story
'witnesses', lending their statements an aura of credibility.68
Second, Farley twists findings to fit her abolitionist orientation. In
interviews with some workers at eight of Nevada's thirty legal brothels, she
states, 'I knew that they would minimise how bad it was'.69 If the respondent
did not describe working in a brothel as 'bad', they were in denial, and Farley
sought to penetrate this barrier: 'we were asking the women to briefly remove
a mask that was crucial to their psychological survival'.70 She also asserts that
'most' of the women working in the legal brothels had pimps, despite the fact
that the women were 'reluctant to admit that their boyfriends and husbands
were pimping them'.71 And 'a surprisingly low percentage - thirty three per
cent - of our interviewees in the legal brothels reported sexual abuse in
childhood', a percentage that 'is lower than the likely actual incidence of
sexual abuse because of symptoms of numbing, avoidance, and dissociation
among these women' or discomfort discussing such experiences.72 In citing
research by Brents and Hausbeck that concluded that the brothels 'offer the

66 See the critiques of Farley's previous work in Weitzer, op. cit., n. 8.


67 M. Farley, Prostitution and Trafficking in Nevada: Making the Connections (2007)
118, 119. Emphasis added.
68 id., p. 120
69 id., p. 22.
70 id.
71 id., p. 31.
72 id., p. 33.

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safest environment available for women to sell consensual sex acts for
money',73 Farley dismisses their findings by arguing that 'safety is relative,
given that all prostitution is associated with a high likelihood of violence'.74
Evidence that contradicts her position is summarily discounted.
What about legal systems in other nations? The State Department's own
assessments appear to undercut the notion that legal prostitution systems are
a magnet for sex trafficking. In its annual Trafficking in Persons Report,
several nations where prostitution is legal (Australia, Germany, the Nether
lands, New Zealand) were found to 'fully comply with minimum standards
for the elimination of trafficking'.75 Moreover, the 2005 Report reveals that
the Dutch authorities report a 'decrease in trafficking in the legal sector', a
finding confirmed by other analysts.76 Rather than being a magnet attracting
migrants into a country, it appears that legal prostitution may help decrease
trafficking due to increased oversight. Moreover:
it is the prohibition of prostitution and restrictions on travel which attract
organised crime and create the possibilities for large profits, as well as creating
the prostitutes' need for protection and assistance.7

As one analyst states:


Traffickers take advantage of the illegality of commercial sex work and
migration, and are able to exert an undue amount of power and control over
[migrants] ... In such cases, it is the laws that prevent legal commercial sex
work and immigration that form the major obstacles.78

In addition to potentially discouraging trafficking, legal prostitution can


be organized in a way that enhances workers' safety, health, and job
satisfaction - as seems to be borne out in several nations. These systems are
not problem-free, but the evidence from these sites contrasts strikingly with
the image proffered by the anti-prostitution crusade.79

73 B. Brents and K. Hausbeck, 'Violence and Legalized Brothel Prostitution in


Nevada' (2005) 20 J. of Interpersonal Violence 289.
74 Farley, op. cit., n. 67, p. 20.
75 US Department of State, Trafficking in Persons Report (annual publication).
76 Transcrime, Study on National Legislation on Prostitution and the Trafficking in
Women and Children, Report to the European Parliament (2005) 121. There has also
been an overall decrease in prostitution establishments (brothels, window units)
since legalization in 2000 due to increased government monitoring.
77 A. Murray, 'Debt Bondage and Trafficking' in Global Sex Workers, eds. K.
Kempadoo and J. Doezema (1998) 60.
78 K. Kempadoo, 'Introduction: Globalizing Sex Workers' Rights' in Kempadoo and
Doezema, id., p. 17.
79 The evidence for this is reviewed in Weitzer, op. cit., n. 8.

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2. Targeting stripping and pornography

Domain expansion is broader than prostitution. Activists have pressed the


government to criminalize 'the commercial sex trade as a whole',80 and they
have met with some success thus far. The key legislation on sex trafficking
defines 'commercial sexual activities' as 'any sex act on account of which
anything of value is given to, or received by, any person'.81 One purpose of
the 2005 End Demand for Sex Trafficking Bill was to 'combat commercial
sexual activities' in general, because 'commercial sexual activities have a
devastating impact on society. The sex trade has a dehumanising effect on all
involved'. The bill targeted a wide variety of sex acts, such as lap dancing in
strip clubs, legal brothel prostitution in Nevada, and pornography. Parts of the
End Demand Bill were included in TVPRA 2005, which contains a section
that repeatedly refers to the need to investigate and combat 'trafficking in
persons and demand for commercial sex acts in the United States'82 -
effectively blurring the line between trafficking and commercial sex.
Donna Hughes's report on trafficking (funded by the State Department)
includes sections on pornography and stripping.83 Her report claims that 'the
introduction of lap dancing has almost eliminated the distinction between
dancing and prostitution', and also that women and girls are trafficked to
perform at strip clubs (though she found only six cases of this in the United
States during 1998-2005).84 Other crusade members have made similar
claims about strip clubs, which in the future may result in increased
government surveillance or control. Hughes maintains that strip clubs are
'attractive to some criminals because they assume that since stripping is
legal they will be less likely to be caught trafficking women into these
markets'.85 This, despite the overwhelming evidence that organized crime
thrives under conditions where a particular vice is criminalized - amply
demonstrated by drug, gambling, and alcohol prohibition - and tends to
decline when it is legalized.86 Organized crime may be reduced in legal
prostitution as well. In Queensland, Australia, a government evaluation
concluded that organized crime had been largely eliminated in the legal
brothels, and in New Zealand, a government study found no evidence of
criminal involvement in prostitution.87 Elsewhere, organized crime may be

80 Hughes, op. cit., n. 40, p. 2.


81 TVPA 2000, s. 103(3); TVPRA 2005, s. 207(3).
82 TVPRA 2005, s. 201a.
83 Hughes, op. cit., n. 47. Hughes received $108,478 from the State Department to
write this report: Attorney General, Report to Congress on U.S. Government Efforts
to Combat Trafficking in Persons in Fiscal Year 2004 (2005).
84 id., pp. 22, 26.
85 id., p. 22.
86 See, for example, the voluminous literature on Prohibition in the United States.
87 Crime and Misconduct Commission, Regulating Prostitution: An Evaluation of the
Prostitution Act 1999, Queensland (2004) xii; Prostitution Law Review Committee,

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more resilient in a particular vice sector, but the claim that it necessarily
increases when prostitution is legalized, as abolitionists claim, is dubious.88
Pornography is also under new scrutiny. Most of the groups involved in
the anti-prostitution crusade are equally alarmed by pornography, and they
have begun to associate it with trafficking. In an article entitled 'Porno
graphy as Trafficking', abolitionist icon Catharine MacKinnon equates the
distribution of pornography with the trafficking of persons depicted in
pornography:
In the resulting materials, these people are then conveyed and sold for a
buyer's sexual use ... Each time the pornography is commercially exchanged,
the trafficking continues as the women and children in it are transported and
provided for sex, sold, and bought again. Doing all these things for the purpose
of exploiting the prostitution of others - which pornography intrinsically does
- makes it trafficking in persons.89

The slippage between 'materials' and 'persons' is striking in this formula


tion. Conflation is even more conspicuous in MacKinnon's circular argu
ment that 'the pornography industry, in production, creates demand for
prostitution, hence for trafficking, because it is itself a form of prostitution
and trafficking'.90
Pornography became widely available during the 1990s via video, cable
TV, and the Internet. The expanding market of sexual material heightened
anxieties within conservative and prohibitionist feminist quarters, whose
leaders complained that the Clinton administration was ignoring the growing
'threat' to traditional values and/or to women.91 Anti-porn groups had hoped
that the inauguration of President Bush would result in a robust crackdown on
pornography, but this did not materialize until his second term in office. Two
years after Bush took office, a right-wing organization, Concerned Women
for America, analysed the Justice Department's (DOJ) record to date, and
complained that it was only targeting the most extreme kinds of porn:
Until the DOJ vigorously and consistently targets the major hard-core porn
producers and distributors of prosecutable but less deviant material, the
industry will continue to make billions exploiting women, addicting men,
exposing children, destroying marriages, and polluting the culture while
laughing all the way to the bank.92

Report of the Prostitution Law Review Committee on the Operation of the


Prostitution Reform Act 2003 (2008) 163^.
88 Mary Sullivan, a leader of Australia's branch of CATW, claims that organized crime
is 'inherent' whether prostitution is illegal or legal. M. Sullivan, What Happens
when Prostitution Becomes Work? An Update on Legalization of Prostitution in
Australia (2005) 4.
89 C. MacKinnon, 'Pornography as Trafficking' (2005) 26 Michigan J. of International
Law 993, at 993, 1004.
90 id., p. 999.
91 Public Broadcasting Service, 'American Porn', Frontline television series (2006).
92 J. LaRue, 'DOJ Releases List of "Obscenity Prosecutions During This Admini
stration"', Concerned Women for America, <www.cfwa.org>, 18 December 2003.

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Attorney General John Ashcroft held private meetings with conservative
groups in 2002 to assuage their concerns, and Attorney General Alberto
Gonzales created a new Justice Department unit in 2005 (the Obscenity
Prosecution Task Force), but anti-porn activists remained unsatisfied.93 A
2007 letter to President Bush, signed by over fifty major players in the anti
porn movement, urged him to wage war on pornography. The letter writers
were alarmed at the 'explosive increase' in the availability or pornography,
which they associated with a host of harms. The letter argues that 'trafficking
in women and children' is 'linked to the spread of obscenity' and that
pornography 'corrupts children, ruins marriages, contributes to sex crimes
against children and adults, and undermines the right of Americans to live in
a decent society'.94 The letter complains that the Justice Department has
been lax in enforcing the obscenity laws, demands intensified prosecution of
pornography cases, and asks Bush 'to make fighting obscenity one of your
top priorities'. Two years earlier, one of the signatories, Patrick Trueman
(former chief of the Justice Department's obscenity unit and now legal
counsel for the Family Research Council), testified before Congress that
'pornography is closely linked to an increase in prostitution, child
prostitution, and human trafficking ... Pornography is a powerful factor in
creating the demand for illicit sex'.95 And Donna Hughes asserted that the
producers of pornography 'often rely on trafficked victims'.96 These charges
were made without supporting evidence.
It is clear that the perceived 'mainstreaming' or 'normalization' of
pornography is the driving force behind activists' robust campaign to
criminalize its production, distribution, and possession. As the leader of
Morality in Media stated:
if we could just send a message to people that this is not what sex is all about,
we will have won more than half the battle. Whether you're a creationist or a
Darwinist, sex is linked to something greater than masturbating to depictions
of other people having sex. It's linked to a person. We have a capacity to
love.97

93 'Justice Department Sets Sights on Mainstream Porn' Pittsburgh Post-Gazette, 11


April 2004.
94 'Appointment of New U.S. Attorney General and Other Matters Regarding Vigorous
Enforcement of Federal Obscenity Laws', 10 September 2007. <http://
www.moralityinmedia.org/obscenityEnforcement/Letter-Regarding-Appointment
of-New-U.S.-Atty-General_10Sep2007.pdf>. The letter was signed by, among
others, Donna Hughes, Patrick Trueman, Morality in Media, Family Research
Council, Concerned Women for America, Focus on the Family, American Family
Association, American Decency Association, and Citizens for Community Values.
95 P. Trueman, Testimony, US Senate Subcommittee on the Constitution, Civil Rights,
and Property Rights, Hearing on Obscenity Prosecution, 16 March 2005.
96 Hughes, op. cit., n. 47, p. 26.
97 Robert Peters, quoted in G. Beato, 'Xtreme Measures: Washington's New
Crackdown on Pornography' ReasonOnline, May 2004.

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Pressure from these individuals and groups helps to explain recent
government actions regarding pornography. For the most part, the law has
remained unchanged (the 1973 Miller decision - stipulating that local
'community standards' should be used to decide whether something is
obscene - remains the cornerstone of pornography law),98 but law enforce
ment has expanded. The Justice Department recently launched a new
crackdown on pornography, including greater resources targeting adult
pornography (previous practice centered on child porn).99 The Justice
Department also created a new unit (the Obscenity Prosecution Task Force)
alongside the existing obscenity branch.100 The head of the new unit, Brent
Ward, was United States Attorney in Utah during the Reagan administration,
during which he vigorously prosecuted distributors of pornography,
attempted to impose new restrictions on strip clubs, prosecuted a phone
sex company, and forced Utah's two remaining adult theatres to close.101
Another major figure is Bruce Taylor, who served in the Justice Depart
ment's obscenity unit in the Reagan years, was a lawyer for the nation's
premier anti-pornography group (Citizens for Decency through Law,
founded in 1956), and was president of another anti-porn organization (the
National Law Center for Children and Families). He is now the obscenity
unit's senior legal counsel.102 The appointments of Taylor and Ward were
praised by right-wing groups that had pressed the Bush administration to
launch a new war on porn.103
An intriguing arrangement is the link between the Justice Department and
a leading anti-porn organization, Morality in Media (MIM). The Justice
Department website contains a section, What Citizens Can Do About Ob
scenity, which encourages people to report 'hard-core pornography'. Since
2004, visitors who click on that icon are redirected to ObscenityCrimes.org,
whose employees then conduct a review. This website is run by MIM, which
received two large grants to fund the work of two retired police officers who
review the complaints.104 In the past few years, 67,000 citizen complaints
have been passed from MIM to the Justice Department.105 That the
Department's website provides links to MIM appears to reflect a seamless
convergence of interests with a very partisan organization.

98 This is in contrast to Britain, where recent legislation targets 'extreme pornography'.


See F. Attwood and C. Smith, 'Extreme Concern', this volume, pp. 171-88.
99 'U.S. Attorney's Porn Fight Gets Bad Reviews' Daily Business Rev., 30 August 2005.
100 US Department of Justice, 'Obscenity Prosecution Task Force Established to
Investigate, Prosecute Purveyors of Obscene Materials', Press Release, 5 May 2005;
R. Schmitt, 'U.S. Cracking Down on Porn' Deseret News, 15 February 2004.
101 'Nation's Porn Prosecutor Fronts War against Obscenity' Salt Lake Tribune, 26
February 2007.
102 Schmitt, op. cit., n. 100.
103 'Porn Industry Moans for Good Reason' at <www.cwfa.org>, 24 February 2004.
104 'Outsourcing Justice? That's Obscene' Washington Post, 15 July 2007.
105 'Federal Effort on Web Obscenity Shows Few Results' New York Times, 10 August
2007.

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Whereas the Clinton administration prosecuted almost no cases involving
adult obscenity, Bush launched several prosecutions. Between 2001 and May
2005, prosecution resulted in convictions of forty individuals and businesses,
with an additional twenty indictments pending.106 This record did not satisfy
anti-porn activists. Former Justice Department official Patrick Trueman
complained:
The few cases that have been prosecuted involve extreme pornography,
depicting violence, defecation, or animals. Most people have no interest in this
stuff, and it's not the business the mainstream porn industry is in. By only
pursuing extreme obscenity, the mainstream porn industry is given a green
light. There's this perception that anything other than extreme pornography is
legal, and it's not. The fact that it's not being prosecuted does not make it legal
... Most porn violates community standards; that makes it illegal, and it's easy
to prove. 07

Trueman went on to describe the dangers of mainstreaming:


The mainstream porn industry has been left to do pretty much whatever it
wants. Porn is now so pervasive that our college students don't even know
how to date, because pornography has conditioned young men to believe that
they're entitled to sexual services from women without the need for relation
ship. They're on such a steady diet of porn that they can't distinguish between
love and sexual desire.108

In a nutshell, the trend in anti-porn enforcement under Bush can be


characterized as both slow to materialize and less far-reaching than crusade
activists had hoped for, yet greater than under the Clinton administration.
Government anti-pornography efforts under Bush were less intensive than
the major legal innovations and robust enforcement actions against
prostitution and trafficking, but were nonetheless a significant part of the
state's broad targeting of the sex industry in general.
Six months into the Obama administration, little has changed. Brent Ward
remains in charge of the Obscenity Prosecution Task Force, and Justice
Department prosecutors continued to work on cases inherited from the
previous government.109 In July 2009, a large coalition of anti-porn
organizations, headed by the Alliance Defense Fund, requested a meeting
with President Obama's new Attorney General, Eric Holder. Their letter to
Holder illustrates, again, my argument that the current abolitionist crusade is
a direct response to the perceived unravelling of traditional sexual mores due
to the flourishing of sexual commerce and the alleged sexualization of the
larger culture:

106 'Bush Administration Stepping Up Obscenity Prosecutions' USA Today, 4 May


2005.
107 Patrick Trueman, quoted in W. Laugesen, 'Pornography Crackdown' National
Catholic Register, 22 April 2007.
108 id.
109 'Porn Prosecution Fuels Debate' Politico, 31 July 2009.

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Since the advent of the Internet, illegal pornography has flooded homes,
businesses, public libraries, and even schools. The results have been devastat
ing to America. Pornography addiction is now common among men, women,
and even many children. Children are creating cell phone pornography, in a
new trend called 'sexting'. Pornography use is now a significant factor in
divorce. Hotels, motels, cable and satellite companies, and other businesses are
making tremendous profits by offering illegal, obscene pornography. America
is becoming a 'pornified culture'.... We are compelled to write to you and ask
for an expansion of the Administration's efforts against the scourge of
pornography.110

The letter writers oppose both obscene material (that is, pornography that has
been judged obscene by a jury) and the 'scourge' of pornography in general,
including legal porn.

CONCLUSION

The evidence presented here shows that the dominant forces in the anti
trafficking, abolitionist crusade and their allies in the United States
government are committed to a far-reaching attack on commercial sex -
prostitution, strip clubs, pornography - all of which are associated with
trafficking and 'sexual slavery'. A crackdown on, if not outright
criminalization of, pornography and strip clubs becomes more palatable to
mainstream organizations and moderate politicians if they can be linked to
sex trafficking, that is, if they can be convinced that sex workers in these two
sectors have been coerced and trafficked. Such domain expansion has been a
gradual process. The initial, exclusive focus on trafficking was subsequently
broadened as activists began to insist that all sectors of the commercial sex
industry should be targeted for repression. Evidence of this domain
expansion can be found in the areas designated for increased scrutiny in
the End Demand Bill, the growing crackdown on domestic prostitution
provided for in the 2005 and 2008 TVPRA, the requirement that those
seeking government funding for their research or interventions on trafficking
or AIDS sign an anti-prostitution pledge, and the Justice Department's
increasing investigation of producers and distributors of adult pornography
under the obscenity laws.
This moral crusade has succeeded, remarkably quickly, in transforming
itself from social movement into a project of the United States government -
becoming almost fully institutionalized in official discourse, legislation, and
enforcement practices under the Bush administration. During this period,
there has been an extraordinary osmosis between crusade and government
ideology and policy initiatives. As I have shown here and elsewhere, the
success of this movement is largely due to the convergence of interests and

110 Letter from Alliance Defense Fund to Attorney General Eric Holder, 15 July 2009.

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organizational interp?n?tration between crusade groups and the Bush
government, quite similar to the partnership between anti-pornography
organizations and the Reagan administration in the mid-1980s.111 The
advent of a new government under President Obama is unlikely to alter the
status quo, given how far-reaching the institutional investment in
abolitionism has become. It is likely that right-wing political and religious
forces will have less access to the state than under the Bush administration,
but the laws, agency apparatuses, and enforcement machinery are likely to
remain firmly in place for the foreseeable future.

111 Weitzer, op. cit., n. 8.

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