Street-based sex workers and the revolving door of incarceration

by Naiymah Sanchez

As we continue to talk about decriminalizing sex work-related offenses, we must acknowledge the stigma associated with being a sex worker and challenge such perceptions head-on. Decriminalization means that those who engage in sex work –whether a provider or a client– would no longer be subject to arrest or criminal charges. The stigma surrounding sex workers is rooted in personal beliefs, false assumptions, and a culture of sex work being too taboo to discuss openly. These challenges to having an open and honest conversation about decriminalizing sex work means that sex workers are subject to a revolving door to jails and prisons across the nation. But today, let’s talk about Philadelphia.

In 2021, the ACLU of Pennsylvania surveyed 60 experienced sex workers in the Philadelphia area. Nearly half the respondents shared that they had been arrested and charged with a range of minor offenses for engaging in the consensual sex trade industry. Most were arrested because the police simply suspected that they were a sex worker. Respondents reported that they had been arrested for everything from alleged obstruction of traffic to loitering because a person was standing in one location too long. Sex workers have also been arrested simply for having condoms or cellular phones in their possession.

From 1996 to 2018, Philadelphia had the highest incarceration rate among America’s largest cities. Years into a citywide effort to reduce the incarcerated population in Philadelphia, there has been real progress in limiting the number of people incarcerated in the city. Nevertheless, Philly still has one of the higher rates of incarceration in the country. Most of those people arrested and jailed are detained pretrial on minor charges or serving time for convictions for low-level offenses. And the racial disparities persist as the vast majority of those behind bars are people of color.

In a 2021 annual report, the Philadelphia District Attorney’s Office noted a significant decrease in the filing of charges related to sex work. While progress has been made, it’s not enough. We need full decriminalization and a focus on harm reduction for those already entangled with the criminal legal system. Even if a district attorney uses their prosecutorial discretion to deprioritize prosecution of sex workers, laws against sex work are still on the books. That means these cases are filtered through a lower court that handles more minor offenses and can offer alternatives to incarceration.

For example, a lower court might order a person to enter into a diversionary program with penalties that range from fines up to $200 and/or taking a class with the option of expungement at the end of completion. But for many street-based sex workers who may be experiencing being unhoused or working through a substance use disorder, even a diversionary program can feel like an insurmountable challenge. If they cannot meet the requirements of the diversionary program, they are likely to face incarceration. The revolving door keeps spinning.

The bottom line is that current programs and policies to try and mitigate the harm caused by the criminalization of sex work are not enough; these policies are akin to placing a napkin over a bleeding wound. Many policymakers understand that we cannot simply lock people up and expect that to end sex work. As one of the oldest industries in human history, sex work is here to stay. We need rational, effective policies of harm reduction and an end to the revolving door that continues to incarcerate sex workers in jails and prisons. Limiting criminal prosecution and pushing people into diversion programs is not enough!

We need full decriminalization of sex work. For the safety and dignity of those in the industry who are just trying to make ends meet, like any other working person.

Naiymah Sanchez is the trans justice coordinator at the ACLU of Pennsylvania

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ACLU of Pennsylvania

We are the ACLU’s Pennsylvania affiliate, defending the Constitution and the Bill of Rights through litigation, advocacy, and community education and outreach.