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Five years of the US’s futile FOSTA-SESTA sex trafficking laws

The US law has inflicted enormous damage worldwide on sex workers, while doing nothing to fight exploitation, writes Marin Scarlett

4 to 5 minute read

Protestors will placards and red umbrellas. The central placard reads 'proud to be whores' in French

Just over five years ago, en route to the flat I’d rented to work from for a couple of days, I opened up the website where I’d been listing my ad. I stopped dead in the middle of the street and stared at my phone. The website had been taken down.

My first thought was that this was some kind of hoax. The logos weren’t just unfamiliar; they looked cartoonish, like knock-offs mocked up for a Marvel movie, or online scammers trying to convince you to hand over your bank details. As I stood in the street and started scrolling the news, however, it became clear that this was no hoax.

I went to the flat that day but, with the platform that I’d used gone and unable to list an ad, I couldn’t make back the money I’d spent on renting it. My independence had been rescinded and I was forced back to the brothel where I’d been working before I’d struck out on my own, where management took a 40 per cent cut of my earnings. Having the option of a safe and legal brothel to return to, however, made me one of the lucky ones.

Higher risks

‘I saw the rise in street work with my own eyes,’ says Rosie*, a sex worker based in the Bay Area in Northern California. ‘Police reports in San Francisco said it had trebled.’

The enormous rise in street sex work is backed up by soaring arrest figures for loitering and solicitation across the US, as the removal of online platforms forced sex workers back onto the streets to find work. Trans, racialised and migrant women are especially likely to be targeted by law enforcement.

Working outdoors exposes sex workers to significantly higher risks of crimes like theft and assault. Research by violence-prevention charity National Ugly Mugs found that more than three quarters of violent crimes against sex workers were experienced by those working on the street, while the English Collective of Prostitutes estimate street sex work to be 10 times more dangerous than indoor work.

By contrast, a three-year research project Beyond the Gaze concluded that online platforms provided sex workers with improved client screening and safety strategies, plus greater independence and autonomy. In the US, one paper linked these platforms to a massive 17.4 per cent reduction in homicide rates nationwide.

Superfluous and harmful

The seizure of Backpage came five days before FOSTA SESTA became law and was inextricably linked to a broader movement against sex work in general. However, that FOSTA SESTA was not necessary to take down Backpage speaks volumes to the overcriminalisation of sex work and sex workers, where we face a constant push for more laws to combat already criminalised activity.

The futility of FOSTA SESTA is underlined by the scarcity with which it has been used. A 2021 US government report reported a solitary case, filed by the Department of Justice in June 2020. To this day, that remains the sole case. While doing nothing to achieve their stated aim, these laws created the perfect conditions for exploitation, and have inflicted enormous harm on an already marginalised community.

‘Within a month of Backpage being taken down, I received multiple messages from people offering to help me, and so did everyone I know,’ Rosie tells me. ‘Taking away websites for us to advertise independently was a gift to predatory pimps and managers.’

FOSTA SESTA may have been a US law but, in a globalised and digitising world, its impact didn’t stop at the border. Online discrimination against sex workers has positively boomed in the past five years, with women, particularly those of colour, bearing the brunt.

The futility of FOSTA SESTA is underlined by the scarcity with which it has been used

‘Since FOSTA SESTA I’ve had two Instagram accounts and one on Twitter closed, plus a warning on OnlyFans,’ says Kali Sudhra, a Europe-based sex worker and one of the co-founder of OTRAS, the first trade union in Spain for sex workers. ‘I also have a lot of non-explicit content flagged and deleted for no reason.’

The deletion of sex worker accounts removes a crucial means by which we advertise our services online, making it harder to find clients and threatening our income. This is compounded by soaring financial discrimination since FOSTA SESTA, with payment processors increasingly refuse to work with adult content platforms and sex workers thrown off platforms such as PayPal and Venmo.

‘PayPal froze my account for six months, preventing me from accessing money that I’d earned legally and that I needed to pay my rent,’ says Sudhra. ‘I had to do more sex work and hustle more as a result. Eventually I did get my money back but they closed my account and permanently banned me.’

These blunt instruments of censorship and discrimination are often not in adherence with the actual law, with online content creators doing legal work in the US and others engaged in legal sex work around the world frequently caught up in their arbitrary application.

Nothing about us without us

The damage inflicted by FOSTA SESTA is a cautionary tale about writing laws without input from the already marginalised communities who will be affected by them. With legislation under debate that threatens sex workers’ ability to advertise online – including the Online Safety Bill in the UK and client criminalisation in Spain – sex worker rights organisations are clamouring for governments worldwide to listen instead to their longstanding demands for decriminalisation.

‘The effects of FOSTA SESTA couldn’t be clearer: we are poorer, forced back to exploitative managers, taking more risks, working in more dangerous conditions,’ says Rosie. ‘We need to repeal this disastrous law in the US and decriminalise sex work.’

‘Nothing about us without us,’ adds Sudhra. ‘It’s common sense, especially when you claim you want to help us. How can you do that without actually talking to us?’

* Some names have been changed to protect anonymity.

Marin Scarlett is a writer and activist working with the European Sex Workers’ Rights Alliance

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