[This is the Introduction of Sex, Cash & Privacy: A Case for Allowing People to Profit From Their Own Sexuality in Peace. For subsequent segments, click on that link.]
I believe that dictating the way a person relates to their sexuality is one of the gravest wrongs a society can impose, so long as that person is not directly harming others in their sexual activity.
The past sixty years have seen the greatest reduction of this type of societal wrong in human history. In many parts of the world, we have thankfully decided “it’s none of our business” whether another person:
- Fucks before marriage
- Fucks using contraception
- Fucks someone of a different race
- Fucks someone of the same sex
- Fucks (or is fucked) in the ass
- Fucks themselves
- Fucks with sex toys
- Fucks while watching other people fucking
- Fucks multiple people
- Fucks rough (consensually)
- Fucks with kinky role plays
- Fucks while high on cannabis
- Fucks in a furry costume (even more entertaining when combined with the previous…)
- Etc. Etc.
When society decides that these and other activities among consenting adults is “none of our business,” it does not mean that all people who respect this “bedroom privacy” of others—as I call it—approve of all such activity that goes on in others’ bedrooms. It does not mean everyone thinks all such activity is socially beneficial. It does not mean everyone in society would be happy if their teenagers (or even grown children) engaged in such activity.
And it certainly does not mean everyone would want to try all such activity themselves (unless one is, like me, a “try-sexual”: I’ll try pretty much anything once).
It just means we have decided that what consenting adults do in the privacy of their own bedrooms. . . is none of our damn business.
It’s not our business to judge, and it’s certainly not our business to get the law, the police, or the courts involved.
I believe this shift towards the ethos of “live and let live” when it comes to what other consenting adults do in the privacy of their bedrooms (or orgy parlors) is one of the greatest pieces of progress in human history. And most of this shift—in the US legal sphere at least—happened in about the last 60 years.
In the US, it started with the landmark Supreme Court Griswold v. Connecticut case (1962, legalizing contraception for married couples); to the felicitously-named case Loving v. Virginia (1967, legalizing interracial marriage); to Eisenstadt v. Baird (1972, legalizing contraception for unmarried adults); to Roe v. Wade (1973, legalizing abortion); to Carey v. Population Services International (1977, legalizing the distribution of non-prescription contraceptives by non-pharmacists, the distribution of contraceptives to people under 16, and the advertising of contraceptives); to Lawrence v. Texas (2003, decriminalizing anal and oral sex for all people—referred to in the law as “sodomy”—though the anti-sodomy laws had been enforced almost exclusively against sex between men); and of course Obergefell v. Hodges (2015, legalizing same-sex marriage).
Yet, over the same time, there has been at least one massive area of consensual, adult human sexuality that has received no such reprieve from societal or legal dictates whatsoever:
Fucking for cash. (And its counterpart, paying cash to fuck.)((Twenty-seven years ago, in 1993, philosopher Igor Promoratz pointed to the same divergence: “Over the last three decades the sexual morality of many Western societies has changed beyond recognition. Most of the prohibitions which made up the traditional, extremely restrictive outlook on sex that reigned supreme until the fifties–the prohibitions of masturbation, pre-marital and extra-marital sex, promiscuity, homosexuality–are no longer seen as very serious or stringent or, indeed, as binding at all. But one or two traditional prohibitions are still with us. The moral ban on prostitution, in particular, does not seem to have been repealed or radically mitigated. To be sure, some of the old arguments against prostitution are hardly ever brought up these days; but then, several new ones are quite popular, at least in certain circles. Prostitution is no longer seen as the most extreme moral depravity a woman is capable of; but the view that it is at least seriously morally flawed, if not repugnant and intolerable, is still widely held.”
Unfortunately, nothing about the situation Primoratz pointed to has changed in the intervening 27 years since he made this observation. His words pointing to the lack of progress on this front could have been written today, in 2020, with as much accuracy as in 1993, though spanning three additional decades. While the trend he pointed to 27 years ago—increasingly liberal attitudes towards most other areas of sexuality—has continued, the rights of sex workers have not improved in the slightest out of this wider liberalization. And in many (though not all) respects, the legal and cultural climate for sex workers and their clients has deteriorated.))
We are in the midst of a recently-escalated war, waged by the Christian right, aided and abetted by many feminists who are bizarrely allying with these misogynistic, homophobic, pro-forced-birth religious zealots on this issue, to shut down the entire adult entertainment industry, from pornography, stripping, and professional BDSM (all currently legal), to criminalized forms such as erotic massage and consenting adults exchanging sex for money.
This coalition–one of the most extreme examples of “strange bedfellows” in history–is waging their war against commercial sex on three major fronts.
The first front is a law passed in with overwhelmingly bipartisan support in the US House and Senate and signed by Trump in 2018, called SESTA-FOSTA. This law effectively bans adults from advertising sexual services online, including legal forms such as stripping, nude web-camming, porn performing, and professional BDSM, and criminalized forms such as sensual massage and escorting. The law primarily targeted sex workers—those adult professionals who exchange sexual services and performances with other adults for money, and it has been devastating to these workers, as we shall see.
Additionally, the “collateral damage” of SESTA-FOSTA includes censorship and banishment of almost anything that has to do with sex on most social media, including many sex educators, and members of alternative sexual subcultures. Every day, social media becomes more-and-more of a G-rated, Disney-fied “sex desert,” where adults cannot discuss ideas, share information, and connect with others around their sexuality.
The second front is a new set of bills–and an accompanying cultural movement–designed to scare the public into thinking there is a public health crisis around viewing and masturbating to adult entertainment. This movement also involves calls to revive prosecutions under old obscenity laws, and a revival of old, religiously-tinged shaming around masturbation.
The third major front in the war against adult entertainment is a movement to coerce sex workers to stop offering their services. This policy is known as “End Demand” (because it aims to put sex workers out of work by ending demand for their services) or the “Nordic Model” or “Swedish Model” (because the policy originated in Sweden, in 1999). Its method involves further criminalizing adult clients who wish to pay for direct sexual contact with other consenting adults—and increasingly, publicly exposing and shaming them, as if we were back to the times of the pillories. This policy starves sex workers of their income, forcing them out of work—and in many cases, into the streets, subject to further risk of violent clients and trafficking.
My thesis is that these attempts are a moralistic encroachment on the sexual privacy of both the providers of these services and the buyers, and have no place in a free society.
I believe the legal protection and enshrinement of a Constitutional right to “bedroom privacy,” as developed by the Supreme Court between Griswold (1962) and Obergefell (2015)–and particularly as articulated in Lawrence (2003)–should be extended to cover all sex between consenting adults in private, including that which involves the consensual exchange of cash.
A recent California case, ESPLERP v. Gascon (2017, brought by the Erotic Service Providers Legal, Education, and Research Fund), aimed to do precisely that. The case sought to overturn the California state law criminalizing prostitution. It reached a Federal court, the Ninth Circuit Court of Appeals. In the hearing, Judge Consuelo Callahan posited that decriminalizing prostitution “seemed like a natural extension of Supreme Court precedent.” To my knowledge, this was the first time a federal judge has suggested that Supreme Court precedents protecting bedroom privacy should be extended to prostitution.
(In the same hearing, Judge Callahan uttered my favorite line I’ve ever read in any legal document or proceeding. She prodded the state attorney: “Why should it be illegal to sell something that you can give away for free?” I’ve never heard an advocate for criminalizing consensual sexual transactions provide a convincing answer to that simple question. In the proceeding, Judge Carlos Bea also pointed out that “the state’s argument for why it could ban prostitution also applied to one-night stands,” Reason reported.)
Unfortunately, however, the Ninth Circuit Court ultimately dismissed the appeal, for complicated—though I believe spurious—reasons. Maxine Doogan, the President of ESPLERP, vowed to keep fighting: “We’re mindful that, in our nation’s history, other constitutional issues have taken a persistent and continuing effort until the courts get it right. This case is not over. . . . This is an important issue that affects all Americans, and it deserves further consideration by the courts.”
Doogan is right on the value of persistence. Griswold (1962, decriminalizing contraception for married couples, brought by Planned Parenthood), was decided after many challenges to contraception bans had lost at the state and federal level. Before Griswold, a 1940 Planned Parenthood challenge to contraception bans (the first challenge in the nation) had been defeated at the Connecticut Supreme Court. And two other challenges to the bans reached the consideration of the US Supreme Court. Tileston v. Ullman (1942) and Poe v. Ullman (1961) were rejected by the Court on narrow technical grounds.
Finally, after three state and federal attempts, advocates of decriminalizing contraception won in 1962, with Griswold, the first Supreme Court case articulating a right to freedom from state interference in the bedroom—what I’m calling “bedroom privacy.”
I believe that the rich precedential tradition protecting bedroom privacy in the US, initiated in Griswold, will eventually be extended to consenting adults who involve monetary transactions in their bedrooms (or hotel rooms, or BDSM dungeons!)
Decriminalizing Consensual Sex Work is the Wave of the Future
The cultural climate around sex work is slowly starting to liberalize, and while they don’t always walk in lockstep, there is no question that law and cultural opinion evolve together. A 2020 poll conducted by Data for Progress found that 52% of all voters support fully decriminalizing sex work between consenting adults, with 26% supporting it “strongly,” and 26% supporting it “somewhat.” This majority includes 64% of all Democratic voters supporting decriminalization (with 37% supporting it strongly, and 27% supporting it somewhat). Even Republicans are at 37% supporting decriminalization (with 14% supporting strongly and 23% supporting somewhat).
Pointing towards future trends, the age group with the highest support for full decriminalization was 18-29-year-old voters, with 65% of voters in this bracket overall (including Democrats, Republicans, and independents) supporting decriminalization. The future is clear.
These polls are in line with the polling supporting the legalization of marijuana, at the time that the big wave of marijuana legalization laws began sweeping the nation about a decade ago. It seems that once support for legalization or decriminalization reaches the 50-65% territory, laws start changing. (Note: there are important distinctions between “legalization” and “decriminalization,” and these distinctions also play out differently in the context of drug law vs. sex work law. I’ll be delving into these distinctions in much more detail later in the book.)
Dozens of major sex worker rights, women’s rights, human rights, civil rights, HIV, gay rights, and anti-trafficking organizations around the world support the full decriminalization of sex work between consenting adults.
These groups include (with quotes from to their official pro-decriminalization statements):
- The United Nations Population Fund: “With 116 countries criminalizing some aspect of sex work, sex workers face deeply rooted stigma, as well as institutionalized discrimination through legal and policy environments that reinforce and exacerbate their vulnerabilities. . . . States should decriminalize adult, voluntary sex work in order to recognize the right of sex workers to work without coercion, violence or risk of arrest; provide social protection and meaningful employment alternatives and opportunities for economic empowerment, so that individuals who wish to leave sex work have the ability to do so; and include sex workers in the design and implementation of policies and programmes for which they are the intended beneficiaries.” (p. 76)
- The World Health Organization: “Countries should work toward decriminalization of sex work and elimination of the unjust application of non-criminal laws and regulations against sex workers.” (p. 91)
- The Global Alliance Against Traffic in Women: “The Global Alliance Against Traffic in Women. . . strongly opposes introducing criminal penalties against the clients of sex workers. . . . We found that criminalising sex workers’ clients does not reduce sex work or trafficking. Instead, it infringes on sex workers’ rights and obstructs anti-trafficking efforts.”((GAATW describes itself as a Bangkok-headquartered organization comprising an “[a]lliance of more than 80 non-governmental organisations from Africa, Asia, Europe, LAC and North America. . . . include[ing] migrant rights organisations; anti-trafficking organisations; self-organised groups of migrant workers, domestic workers, survivors of trafficking and sex workers; human rights and women’s rights organisations; and direct service providers.”))
- The Sex Workers Outreach Project USA: “Although violence, particularly against street workers, is common, most violence is perpetrated by non-clients, individuals who pose as clients, law enforcement officials, and a very small proportion of clients. The same goes for clients of indoor workers. While news reports frequently vilify clients of sex workers. . . . the overwhelming majority of sex worker clients do not perpetrate violence against sex workers. And the central cause of violence is institutional alienation of sex workers from law enforcement protection and a justice system that leads most sex workers to distrust and fear law enforcement officials.”((SWOP-USA describes itself as “a national grassroots social justice network dedicated to the fundamental human rights of sex workers. . . focusing on ending violence and stigma through education, community building, and advocacy.” The organization is the creator the “International Day to End Violence Against Sex Workers” on December 17th every year))
- Human Rights Watch: “Criminalizing adult, voluntary, and consensual sex – including the commercial exchange of sexual services – is incompatible with the human right to personal autonomy and privacy. In short – a government should not be telling consenting adults who they can have sexual relations with and on what terms.”
- The ACLU: “Prostitution laws are also a violation of the right of individual privacy because they impose penal sanctions for the private sexual conduct of consenting adults. Whether a person chooses to engage in sexual activity for purposes of recreation, or in exchange for something of value, is a matter of individual choice, not for governmental interference.”
- Lamda Legal, the National Center for Lesbian Rights, and the Transgender Law Center, in a joint statement: “Laws criminalizing sexual exchange—whether by the seller or the buyer—impede sex workers’ ability to negotiate condom use and other boundaries, and force many to work in hidden or remote places where they are more vulnerable to violence. Research and experience have shown that these laws serve only to drive the industry further underground, make workers less able to negotiate with customers on their own terms, and put those who engage in criminalized sex work at higher risk for abduction and sex trafficking.”((Lamda Legal describes itself as “the oldest and largest national legal organization whose mission is to achieve full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and everyone living with HIV.” The National Center for Lesbian Rights describes itself as “the first national LGBTQ legal organization founded by women.” The Transgender Law Center describes itself as”the largest national trans-led organization.”))
- The National Center for Transgender Equality: “Decriminalization is not only compatible with efforts to combat coercion and trafficking in the sex trade; it will strengthen them by focusing resources on the real problem and making it far easier for sex workers to screen clients, report violence, access social services, and find employment outside the sex trade without the burden of a criminal record. (p. 26)
- The Center for Health and Gender Equity: “Criminalization creates an environment of stigma, discrimination, and systematic exclusion that prevents sex workers from accessing health and support services and increases their risk of violence and abuse. It creates barriers to sex workers’ involvement in the development and implementation of effective health interventions, including HIV and STI prevention and treatment and reproductive health. And it silences sex workers themselves, who have struggled for full decriminalization, access to services, human rights protections, and dignified and safe working conditions for decades.”
- The Lancet (one the world’s most prestigious and influential medical journals): “Sex workers are among the most marginalised, stigmatised populations in the world. Criminalisation of their profession increases their risk of HIV and violence and abuse from clients, police, and the public. The Lancet Series on HIV and sex workers showed that decriminalisation of sex work would have the greatest effect on the course of HIV epidemics across all settings, averting 33–46% of HIV infections in the next decade. Such a move would also reduce mistreatment of sex workers and increase their access to human rights, including health care.”
- UN AIDS: “Discrimination towards sex workers is nearly universal. In addition to the criminalization of sex work, entrenched social stigma means that sex workers often avoid accessing health services and conceal their occupation from health-care providers. . . . [T]he following are needed: Sex work decriminalized and punitive laws that make it a crime to carry condoms ended. . . . The inclusion of all sex workers in the design of programmes intended for them. . . . Direct funding for rights-based, evidence-informed community services, rather than services that are driven by morality or a punitive approach.” (pp. 8, 11-12)
- The Royal College of Nurses (the UK’s largest union of nurses, passing a resolution committing to lobbying the government for full decriminalization): “As nursing staff, we have a responsibility to call for what is in the best interests of public health and the patients who entrust us with their care. Lending our voice to support a stigmatised and marginalised group is not only the right thing to do but will lead to improved health outcomes.”
- Amnesty International: “Amnesty International calls for the decriminalization of all aspects of adult consensual sex work due to the foreseeable barriers that criminalization creates to the realization of the human rights of sex workers. As described further in this policy, Amnesty International considers that to protect the rights of sex workers, it is necessary not only to repeal laws which criminalize the sale of sex, but also to repeal those which make the buying of sex from consenting adults or the organization of sex work (such as prohibitions on renting premises for sex work) a criminal offence. Such laws force sex workers to operate covertly in ways that compromise their safety, prohibit actions that sex workers take to maximize their safety, and serve to deny sex workers support or protection from government officials. They therefore undermine a range of sex workers’ human rights, including their rights to security of person, housing and health.” (p. 2)
The 2020 US presidential election featured the first-ever presidential candidate with any national name-recognition, US representative Tulsi Gabbard of Hawaii, to advocate for the full decriminalization of sex work. In March 2019, she said, “If a consenting adult wants to engage in sex work, that is their right, and it should not be a crime. All people should have autonomy over their bodies and their labor.”
Before her historic 2018 victory as the youngest woman ever to become elected to Congress, in a stunning upset against 10-term centrist Democratic incumbent Joe Crowley, Alexandria Ocasio-Cortez stated through a spokesperson that “[i]t is important that we make a clear distinction between sex work and human trafficking.” Her official platform states that she “stands in opposition to gun laws that allow those convicted of domestic abuse to have firearms and the criminalization of sex work, both of which increase violence against women.”
To my knowledge, this is the first time a US congressperson made a statement before their election distinguishing between consensual sex work from sex trafficking, or including the decriminalization of sex work in their official platform at any time, before or after their election. This shows that, in liberal districts at least, advocating for the decriminalization of sex work is no longer outside of the “Overton window“–the range of political discourse acceptable to the mainstream–nor a disqualifying position.
And, beyond simply including a positive statement in her platform, New York State Senator Julia Salazar, Democrat of Brooklyn, made decriminalizing sex work a central organizing position of her successful campaign, winning in a huge upset against the 8-term Democratic incumbent Martin Malave Dilan in 2018, at the age of 27.
Salazar told the Intercept, in the run-up to her election, “Sex workers are workers and they deserve to be treated with dignity, including protections and decent working conditions, rather than the abuse and criminalization that they currently face. I’m dedicated to defending workers’ rights, reforming our criminal justice system and ending exploitation, and we know that criminalization puts everyone in sex work at risk rather than protecting them.”
Salazar also organized canvassing groups comprised largely of currently-working sex workers, talking door-to-door to constituents about decriminalizing sex work. To my knowledge, this is the first time a state-level campaign has specifically organized sex workers for canvassing.((One of the 35 canvassers in the group, sex-worker-rights organizer Lola Balcon, summed up one of her days of canvassing to her colleagues: “Everyone reacted well to talking about sex work! I think it’s because the people who I canvassed all happened to be fairly young. And I think there’s a generation of people who grew up on news of racial bias and policing and incarceration and have a framing around that. So if you can put it into that frame, then you don’t have those old feminist debates about whether or not this is empowering. It’s just not relevant.” Salazar organized a canvassing party focused on sex work decriminalization, which long-time sex-worker-rights advocate Melissa Gira-Grant described (with photo) as: “Outside a national conference, the biggest local activist meeting of sex workers & allies I’ve ever seen in US, let alone in NYC.”))
In three US states and cities—New York, Vermont, and DC—lawmakers have introduced bills for the decriminalization of sex work.((All such laws keep state and federal felony penalties against sex trafficking on the books, defined federally as inducing someone to engage in commercial sex via “force, fraud, or coercion,” or facilitating any participation in the sex industry by a minor. Critics of these laws who say that they “decriminalize pimping” are simply lying; if pimping is defined as the use of force, fraud or coercion to induce people into the sex trade, or any involvement of minors, then it remains as serious a crime as ever, with significant state or federal felony penalties.))
The recently-elected District Attorney Chesa Boudin made headlines when he became, to my knowledge, the first district attorney to state that his department will not prosecute acts of commercial sex between consenting adults; this statement is a de facto policy of decriminalization in San Francisco.((In 2019, Tiffany Cabán, the progressive candidate for Queens, NY district attorney–endorsed by Bernie Sanders, Elizabeth Warren, and Alexandria Ocasio-Corrtez–made full decriminalization of consensual sex work between adults a major part of her platform. All of her Democratic primary opponents said they would arrest buyers but not sellers of sex (the “Nordic Model”), but Cabán went further, vowing not to prosecute buyers either, on the grounds that prosecuting away poor workers’ main source of income does not in fact help them. She said in a debate against her Democratic opponents:
“This is literally how they put food on their tables. . . . We want to support people in sex work who want to engage in sex work because certainly our economy doesn’t work for everybody. Or, if it’s survival work, provide other means where their survival is no longer contingent on sex work. . . . You can’t police customers without policing sex workers. And you create an environment where there’s an incentivization of police officers harassing and taking advantage of sex workers to get information on their clients. . . . We are repairing fractured trust so that we have witnesses for our sex trafficking cases, so that we can start to be successful in those prosecutions.”
The NOW-NYC chapter unconscionably opposed this policy and advocated for–to use Cabán’s term–taking food off of marginalized women’s tables, via the Nordic Model). They endorsed instead the Democratic-establishment-backed centrist Melinda Katz for the primary instead, in large part over this issue.
Cabán initially declared victory in the primary against Katz, based on a razor-thin lead of 1,000 votes. During a six-week recount, however, Katz pulled ahead by just 55 votes (in one of the most populous counties in America), and Cabán conceded. Katz went on to win the general election.
By a 55-vote margin, instead of having a progressive DA with a platform of destigmatizing and decriminalizing sex workers and their income, Queens got a DA who is now aggressively attempting to impoverish these women further by criminalizing their income.))
The times they are a-changin’ when it comes to sex work decriminalization in the United States. Despite the ramped-up war against commercial sex mentioned at the beginning of this introduction, there are glimmers of hope beginning to emerge. The polling, local bills, and growing support from politicians and candidates are still in a nascent phase, and they’re not happening nearly fast enough. But it’s clear that advocates for decriminalization of sex work are on the right side of history.
My goal in Sex, Cash & Privacy is to contribute substantively to this changing cultural climate, thereby putting additional wind behind the sails of sex work decriminalization in the US.
I argue free people should have the right to decide the terms of their own sexual behavior with other consenting adults—with whom, when, for how long, and what activities. And I argue that part of this right to sexual self-determination involves the right to decide that these terms include earning significant money from one’s sexuality.
If this is your first time considering these issues, welcome to your reading journey into one of the most cutting-edge areas of activism, debate, and policy change in current American politics. This fight has wide-ranging implications for labor rights, women’s rights, LGBT rights, the rights of people of color, human trafficking prevention, prison reform, immigration reform, civil rights, freedom of speech on the Internet, sexual expression, privacy, human rights, and civil liberties for all people.
