The US government, on the other hand, adopts a more literal view of the term. Its legal system defines ‘sex trafficking’ as: “‘The recruitment, harboring, transportation, provision, obtaining, patronizing or soliciting of a person for the purpose of a commercial sex act.” Note that this definition does not include any mention of force, coercion, or age. This is by design. In the United States, paying for sex, soliciting for sex, and providing lodgings or other services to sex workers has been intentionally defined in the law as ‘sex trafficking’.
While American federal law defines ‘sex trafficking’, it does not actually criminalise it except for cases in which “a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age”. However, in the United States, most criminal law enforcement is conducted at the state level. And at the state level, buying and selling sex is already illegal in every state but Nevada (and even there, only in certain rural counties).
Who are ‘sex traffickers’?
The legal reality in the United States is that ‘sex trafficking’ refers to the illegal buying and selling of sex. This means that ‘sex traffickers’ are not only the people running brothels or taking a cut of the profits for sex workers, but also the clients of sex workers. They are also, legally speaking, the sex workers themselves. And while some states do sanction clients, others have deliberately targeted sex workers on the logic that criminally sanctioning them is the most effective way to diminish the availability of commercial sex.
Branding sex workers as ‘sex traffickers’ is not always explicit, and a current trend is for politicians and legal practitioners in the United States to refer to sex workers (in particular women) as ‘victims of sex trafficking’. However, despite this change of labels, no state has ended the penal sanctioning of adult sex workers. In some cases these sanctions have simply been rebranded. The State of New York, for example, established diversionary courts for ‘victims of sex trafficking’, where they can be tried and sentenced as victims. In Houston, the police have claimed that arresting and prosecuting sex workers is intended to help them escape from trafficking. Meanwhile, Rhode Island, where previously only solicitation had been illegal, criminalised the sale of sex in 2009. Much of the driving force for this change came from the local activist Donna Hughes, who has publicly stated that she views ‘sex trafficking’ and sex work as one and the same. Thus, rhetoric aside, it is clear that in the eyes of the American criminal justice system, sex workers are as culpable as their clients – if not more – in the crime of ‘sex trafficking’.
What is ‘online sex trafficking’?
In the United States, Section 230 of the Communications Act of 1934 holds that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This provision made it possible for websites like eBay, Facebook, and Google to host user-generated content without worrying that they would face civil and criminal liability for the actions of those users. For sex workers, this meant they could use these services for activities including networking, exchanging safety tips, and advertising (discreetly) to clients.
This ended in 2017 with the passage of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), which criminalises anyone who “owns, manages, or operates an interactive computer service […], or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person.” FOSTA, as its name suggests, made it a crime to run a website that facilitates ‘sex trafficking’, with sex trafficking defined – as it is elsewhere in US law – as the buying and selling of sex.