All people have a right to health, safety, dignity, and justice. Too often, people engaged in transactional sex face violence, health disparities, stigma, procedural injustice, and systemic harm. Unfortunately, polarization has stifled practical public policy approaches that could materially improve the lives of all people who are or have engaged in transactional sex (including victims of sex trafficking and exploitation) to enjoy those rights.
In 2011, Minnesota adopted Safe Harbor legislation, decriminalizing the sale of sex by minors. Before 2011, the law defined youth engaged in transactional sex as “delinquent” and criminally liable for the crime of prostitution. Safe Harbor reclassified these youth as “sexually exploited” and created a system of specialized housing, case management, and multi-disciplinary coordination available to youth and young adults under age 25 who have been or are at risk of being victims of sex trafficking or exploitation. The sale of sex remains a criminal offense for any person aged 18 and older, as it does throughout much of the US.
Involvement in transactional sex spans a wide spectrum of experiences, including consensual, coercion, and force. An individual may experience transactional sex in one – or all – of these ways, often changing over time. Nationally, tensions remain about the best policy and legal approach for adults involved in transactional sex. For some, the best policy approach is partial decriminalization: removing criminal penalties for the sale of sex but maintaining them for the purchase of sex to protect victims of sex trafficking and exploitation while reducing the overall size of the commercial sex market. A few states have recently adopted partial decriminalization measures. Others argue that full decriminalization – removing criminal penalties for the sale and purchase of sex, as well as ancillary activities such as advertising – is the best way to promote safety and dignity for impacted communities because it has the potential to reduce stigma and violence.
This is an important debate in which well-meaning experts disagree.
We believe that current public policy dialogue has become entrenched in an either/or debate about partial versus full decriminalization that obscures a wider range of policy changes that could reduce harm and advance justice.
Safe Harbor Expansion to Adults
In 2018, the Minnesota legislature mandated the creation of a Safe Harbor for All Strategic Plan. Our team was tasked with exploring various policy approaches to sexual exploitation and sex trafficking of adults. We heard from nearly 300 people from diverse communities across Minnesota, including over 100 people with lived experience (people who self-identify as sex trafficking survivors and sex workers) and professionals in criminal justice, victim services, housing, and healthcare.
The process did not yield consensus on every issue, but it revealed important common ground. Our process documented numerous harms to all adults involved in transactional sex, including violence, threats of violence, abuse, housing instability, physical and mental health problems, institutional discrimination, and more. Others described serious harms at the hands of sex buyers, traffickers, and the system itself (including law enforcement). We also documented disproportionate impact of these harms on Black, Indigenous, and LGBTQIA2S+ communities and people of color. Without exception, participants agreed that people with lived experience in transactional sex have a right to health, safety, dignity, and justice. Stakeholders also unanimously identified significant harm to people with lived experience under the current system resulting from criminalization, judgment, and discrimination against people involved in transactional sex.
Our report echoed the current policy arena in the US by identifying disagreement about partial versus full decriminalization of prostitution amongst stakeholders. Those who view transactional sex itself as a form of violence tended to support partial decriminalization. Black and Indigenous participants who viewed transactional sex as a continuation of the harms of colonialism and enslavement expressed concern about the elimination of criminal liability for sex buyers. Those who view transactional sex as a form of work, albeit occurring in a context of structural inequality, tended to support full decriminalization of commercial sex. There was no agreement among stakeholders about whether the best legal pathway is partial or full decriminalization. Here we lift several widely supported recommendations that we could move on together.
Common Ground for Policy and Practice
Expand eligibility of Safe Harbor services for people of all ages. Stakeholders were very clear that focusing on the legal framework alone is not enough to promote safety and justice. Intervention and prevention services that are culturally competent are essential to helping adults avoid and exit trafficking and exploitation. Stakeholders named the need for outreach, housing, economic stability supports, healthcare, mental healthcare, and substance use treatment. Services should be available to anyone who trades sex and is experiencing harm across their lifespan, no matter how the person chooses to describe their involvement.
Identify, repair, and prevent harms from systems and institutions. People in the sex trades encounter many harms from systems and institutions (e.g., police, child protection, healthcare, employment, and housing), resulting from stigma and abuse of power. Black, Indigenous, and low-wealth communities are disproportionately impacted. Our report identified several ways to address these harms. Housing providers should remove prostitution charges as automatic deniers for housing. State institutions should audit or assess policies, procedures, and licensure requirements across private and public employment sectors to rectify barriers to employment for people involved in the sex trade. Minnesota’s inaugural Missing and Murdered African American Women and Girls Office is a beacon for addressing this intersectional harm.
Recognize, support, and fund Tribal nations and Indigenous communities to develop their own responses to sex trafficking. Trafficking disproportionately affects Native communities because of systemic marginalization and legacies of settler colonialism.
Respecting tribal sovereignty and uplifting tribal cultural practices for healing, in conjunction with related statewide efforts such as the Missing and Murdered Indigenous Relatives initiatives, are vital to prevention and intervention.
Our report recommended funding Tribal communities, along with technical assistance, to develop their own culturally affirming solutions.
Investigate and prosecute people who perpetrate crimes against people in the sex trades.
Fear of arrest impedes the ability of people in the sex trades to call the police when they are a victim of crime, including trafficking or exploitation. If they do call the police, our report found they reported being ignored, or worse arrested for prostitution, even when calling to report serious crimes such as rape, assault, robbery, and wage theft. Law enforcement efforts could target sex buyers and others who cause harm within the context of commercial sex, including those who commit acts of physical or sexual assault and theft, and those who purchase sex from minors or trafficked individuals. The numbers suggest that we cannot arrest away the demand for commercial sex. Immunity or “safe reporting” laws could shield people from arrest or criminal liability.
Build on current expungement policy efforts to reduce the burden of criminal liability.
People who have experienced sex trafficking often accrue criminal records as a direct result of their exploitation. Any individual convicted of prostitution-related offenses can face severe and lasting consequences in terms of financial security, employment, and housing. Stakeholders agreed that we need accessible expungement processes to support economic empowerment and lessen institutional discrimination.
Vacatur statutes (including a range of offenses, not just prostitution-related ones) would signal institutional acknowledgment that there should never have been a conviction in the first place.
Public Policy on Transactional Sex Tailored to Context
Our review of empirical literature in the Safe Harbor for All report did not identify a one-size-fits-all public policy response. Sex markets – and the experiences of people engaged in transactional and commercial sex – are shaped by local contexts, including the availability of gainful employment, immigration laws, and the region’s array of healthcare, housing, public safety, and social safety net provisions. We can learn from the implementation of different policy regimes across the world, but the vast diversity of context globally necessitates a context-specific approach.
There are disagreements in the field and amongst people with lived experience, and others, about how to conceptualize commercial sex and reduce harm. These disagreements require more discussion and listening. While that is happening, we could take practical steps to reduce harm, promote safety, advance justice, and respect dignity.
