Autumn 2020
Stigma, Sex Work, and Criminalization
An editorial by Nina Ovian
I have had the “fortunate displeasure” of watching the ways stigma and the criminal justice system have depleted and decayed communities, communities that consist of people surviving in poverty and a disproportionate amount of people of color. I say fortunate because by gaining the insight into how and why these patterns arose and continue to exist, I am one step closer to being part of the solution to dismantle the systems that enforce them. Displeasure, because obviously this is an agonizing experience that has robbed me of loved ones and community leaders and so much of my youthful optimism. With ongoing conversations on public health and racism, I wanted to share some of my observations over the years about the cyclical nature of stigma and criminalization of underground economies, such as the sex industry and the drug trade, and the ways in which they impact and incarcerate primarily low income women of color specifically. My experiences come largely from harm reduction and homeless services direct service with a focus on women but the lessons I learned can be applied more broadly to better understand how we came to this point of mass incarceration and modern day slavery.
Our criminal justice system is designed to punish more than rehabilitate, similar to the original definition of stigma as a mark to be brandished on the face of a person to avoid. It accounts for behaviors but rarely for the circumstances that led to those behaviors. It is this weakness that allows it to be exploited and to become a tool of discrimination. By creating circumstances for a specific group that are known to lead to certain behaviors, and then stigmatizing and criminalizing those behaviors, America found a way to continue a legacy of racism and forced labor. When focusing this lens on prostitution charges and the sex industry we see that the circumstances of consent are often glossed over when applying consequences. Victims of human trafficking, street-based sex workers, and the lower risk indoor sex workers can all face the trauma and consequences of prostitution criminal charges---charges resulting in incarceration, family separation, loss of housing, and many other life-altering outcomes. While more funding has gone into the care and rehabilitation of trafficking victims, the introduction to services often still requires an initial arrest and police-inflicted trauma.
The loss of resources associated with criminal charges, poor health outcomes from disrupted care due to repeated short incarcerations, and other impacts on the targeted group only further fuel stigma. By trapping people in a cycle of poverty, they are more likely to be vulnerable to disease and more likely to be pushed into other survival crimes, thus linking illness and crime without the nuanced understanding of how stigma and criminalization created those circumstances initially. The primary focus is instead that stigma in criminalization serves to only strengthen its argument and distract from the larger issues of poverty and basic human rights, replacing them with narratives about “criminals” and “degenerates.”
With this increased knowledge about the relationship of stigma and criminalization, it’s time to investigate the ways in which this cycle impacts the behavioral health outcomes more specifically. With high rates of trauma and poor health outcomes we have seen an increase of diversion programs meant to reduce the impact of criminalization by instead funneling people into behavioral health treatment. While this sounds constructive on the surface, almost every diversion program has some aspect of forced treatment--forced treatment that is proven ineffective and often can be re-traumatizing for many participants. This treatment is also stigmatizing in that most of these programs geared towards prostitution charges also include substance use treatment regardless of the individual’s relationship to substances. This legal policy conflates sex work with substance use and furthers the assumption that someone would be engaged in the sex industry due to substances. This further distracts from causes of poverty and the criminal justice system, and completely glosses over the issue of human trafficking.
By confining adequate behavioral health care to diversion programs, it also sets many people up to seek getting arrested in hopes that they will be diverted into care. This inclusion of the initial trauma of arrest and in most cases court appearances could be avoided entirely if people had the same access to care without incarceration. Unfortunately, many people, even with health insurance, lack the access to proper behavioral healthcare. Until that is addressed, we cannot pressure people to exchange care for incarceration.
While these laws do not explicitly mention race or gender, the unequal policing of low income black and brown women has led to devastating impacts to them and their larger communities. When a law is only enforced on a certain group of people, it causes people to attribute those criminal acts as being related to things such as race, gender, and class. While prostitution law never mentions gender or race, and statistics show that people of all genders and race are engaging in the behavior, it is apparent that these policing patterns are not only informed by stigma but also seek to reenforce it. By conflating sex work with behavioral health issues we are unable to address the issues of poverty and the reality that while it is a choice for most people, the other available choices are often more harmful.
In order to reduce this stigma, I believe that we must find a solution using the lens of criminal justice reform. Sex worker advocates and many major organizations, such as the Human Rights Watch, Amnesty International and the ACLU, have been advocating for decriminalization of sex work. While many agree that sex workers should not face criminal charges and arrests, it becomes more complicated when discussing legalization and regulation where punitive repercussions would still exist and still disproportionately impact women of color. To effectively destigmatize, decriminalization must be the first step to addressing the underlying issues of poverty and trauma. While we find ways to ensure proper healthcare and personal agency for everyone involved in the sex industry, we should remove all barriers to care that we can.
https://www.hrw.org/news/2019/08/07/why-sex-workshould-be-decriminalized
https://www.amnesty.org/en/qa-policy-to-protect-thehuman-rights-of-sex-workers/
https://www.aclu.org/news/lgbt-rights/sex-work-is-real-work-and-its-time-to-treat-it-that-way/