Legalizing prostitution could end sex-trafficking investigations

After the arrest of New England Patriots owner Robert Kraft and 24 other men on misdemeanor prostitution charges in an investigation of an erotic massage parlor, some suggested that prostitution should be legalized. In fact, the topic is poised to become an issue in the 2020 presidential race.

While this suggestion may be simple pandering, considering how unlikely legalization of prostitution would be at the federal level, it is a worrisome possibility at the local level for law enforcement and anti-trafficking advocates.

{mosads}Because he is well known, Kraft’s arrest has moved the needle toward the normalization of commercial sex consumerism, and thereby legalization. Some consider his prosecution a waste of resources. Though local police believe it was “manifestly obvious” the Orchids of Asia Day Spa was engaged in sex trafficking, some argue that its patrons were engaged in a victimless, consensual commercial sex exchange that should not be a crime. After all, the proprietors of the massage parlor haven’t been charged with sex trafficking.

Moreover, the pro-legalization camp argues that by legalizing and regulating commercial sex exchanges, sex trafficking would decrease exponentially and be replaced by the legal market. They believe that men who engage in commercial sex consumerism would never do so with a victim of sex trafficking if given the opportunity to patronize a legal, regulated brothel.

However, the reality is more complex. Research suggests that legalization would increase the incidence of sex trafficking, and law enforcement officials have no doubt that it would hamper trafficking investigations.  

In 2012, researchers in Germany, Switzerland and the United Kingdom examined the impact of legalized prostitution on human trafficking inflows around the world. The data were used to test two competing theories on the effect of legalization: scale and substitution. The scale effect posits that legalized prostitution leads to an expansion of the prostitution market, which increases trafficking, while the substitution effect contends that legalized prostitution would reduce the demand for trafficked women because legal prostitutes are favored over trafficked ones. The data from this study suggest that the scale effect dominates the substitution effect — that is, areas with legalized prostitution experience larger reported incidence of trafficking inflows.

In addition to empirical data on the increase of sex trafficking in areas with legalized prostitution, from a law enforcement perspective legalization would seriously inhibit the ability of police to combat trafficking, rescue victims and arrest offenders. Rescued women are fearful of law enforcement and it is difficult to get them to fully cooperate and self-identify as victims. Though they aren’t caged or bound in chains, these women can’t walk away. Where would they go? There are few resources available for sex trafficking survivors, and victims often are led to believe their relatives overseas would be in jeopardy if they were to run away or cooperate with police.  

While there is research to suggest that legalization of prostitution can lower incidence of violence and disease afflicting consenting sex workers, it would increase the prevalence of sex trafficking and further inhibit law enforcement’s efforts to intervene.

That said, consenting sex workers and victims of sex trafficking often are unjustly criminalized when they report victimization to police, which is unacceptable. For example, consider the case of a woman in Connecticut who called police to report her sex trafficker but then was arrested for prostitution. Two years later, her sex trafficker was arrested for the malicious wounding of a woman in Fairfax County, Virginia, though he was not prosecuted when the victim went missing.

Most police, anti-trafficking groups and advocates for sex worker rights agree that victims of sex trafficking and other forms of violence never should be criminalized. But the legalization of prostitution is not the answer; it would further complicate the problem. Instead, legislators should consider measures that expand tools for law enforcement to facilitate investigations, rescues and arrests. In addition, to protect victims, consider decriminalization, which is not the same as legalization. Decriminalization would allow police to use further discretion in enforcing the law and/or lessen penalties for truly consensual exchanges between adults.

Ultimately, the interests of consenting sex workers and victims of trafficking are not mutually exclusive and shouldn’t be treated as such. All women engaged in the commercial sex industry should feel empowered to come forward for help, without fear of criminalization. But law enforcement also must be empowered to catalyze rescues of women who are forced, defrauded, coerced or deceived into commercial sexual exploitation.

Kimberly Mehlman-Orozco holds a Ph.D. in criminology, law and society from George Mason University. She serves as a human trafficking expert witness for criminal cases and is the author of “Hidden in Plain Sight: America’s Slaves of the New Millennium.” Follow her on Twitter @MehlmanOrozco.

William D. Snyder is the sheriff of Martin County, Florida, and a former state legislator with more than 40 years of experience in law enforcement. The Martin County Sheriff’s Office originated the investigations that resulted in charges against Orchids of Asia Day Spa and Robert Kraft.