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The Law’s Tougher on Sex Workers Today Than It Was in the 19th Century

How suffragettes, wartime paranoia, and 9/11 stripped Victorian entrepreneurs of rights and reputation.
German soldiers entering a Soldatenbordell in Brest, France, in 1940. (Photo: BArchBot/Wikimedia Commons)

German soldiers entering a Soldatenbordell in Brest, France, in 1940. (Photo: BArchBot/Wikimedia Commons)

We like to think that, over time, our laws become less prejudiced and discriminatory. Even Martin Luther King, not always an optimist, took an optimistic approach to the evolution of American law: “The arc of the moral universe is long, but it bends towards justice,” he said in 1965. The 20th and 21st centuries, indeed, saw some major civil rights victories: It was in this period that women won the right to vote, the Jim Crow laws were eradicated, and marriage equality became a Constitutional right. The legal system hasn't abolished prejudice exactly, but it has improved for some groups who were, not so long ago, marginalized by it.

For sex workers, however, the law hasn't bent in the direction of greater equality. Over the last 150 years, rights for sex workers have in many ways diminished, according to West Virginia University journalism professor Alison Bass. In her book Getting Screwed: Sex Workers and the Law, released today, Bass surveys the history of laws regulating prostitution in America and abroad. In the past and today, Bass finds, sex workers have been marginalized by stigma that portrays them as immoral, dangerous, even diseased figures. But while the stigma hasn't changed, the laws have—in many cases, from the point of view of the sex worker, for the worse. Law has gotten even tougher on sex workers than it was a century and a half ago.

It may come as a surprise that sex workers enjoyed more rights in Victorian-era America than they do now, post-sexual revolution. But smaller government, and a very limited number of women in frontier towns, contributed to a less restrictive legal environment in the 19th century, especially in the West, Bass says. "In many cities, sex work was legal in certain districts—that’s what led to the storied red light districts,” Bass says. “In New Orleans and Denver and San Francisco, and in other cities in the Midwest, it was actually legal to have brothels." Other cities, such as New York, technically had laws against prostitution; police, however, tended to accept bribes to look the other way.

Law has gotten even tougher on sex workers than it was a century and a half ago.

The semi-legality of sex work—and the lax execution of the laws that were in place—didn’t make prostitution any easier in the 19th century than it is today. Women still faced violence from clients and the threat of venereal diseases. Nevertheless, prostitution was one of the few professions open to female entrepreneurs. "There wasn't a lot of things that single women could do in the 19th century," Bass says. "There was also a dearth of women in the mining economies of the American West. So a good-looking smart woman could set herself up and do decently." A self-employed sex worker could also make a pretty decent living: In a Renegade History of the United States, Occidental College history professor Thaddeus Russell writes, "Prostitutes made, by far, the highest wages of all American women." In the West, brothel owners (colloquially known as "madams") were accepted as part of the community—according to both Russell and Bass, many had good relationships with law enforcement, and even hired police officers for protection.

Prostitutes had allies in the 1870s in medical authorities, who pushed to further legalize and regulate the profession in the interest of public health. This was opposed, however, by early suffragettes such as Susan B. Anthony. Like later waves of anti-prostitution feminists, suffragettes believed that sex work was immoral and degrading to women. They joined forces with evangelist preachers and other religious groups to stigmatize prostitution as a social evil. The coalition worked to ban sex work, just as they worked to ban alcohol during Prohibition. "They whipped up public fervor against prostitutes,” according to Bass.

The suffragettes’ scare tactics were quite successful. Wealthy landlords stopped renting their spaces; some brothels in the West were even burnt down by angry mobs. Suffragettes put pressure on police to stop accepting bribes, and started enforcing existing statutes targeting prostitutes. They passed new Red Light Abatement laws, which made landlords culpable for prostitution on their premises according to journalist Melissa Gira Grant. The Mann Act of 1910 was the first federal anti-prostitution law. It was compounded by pre-World War I fears about venereal disease, which provoked the passage of a Navy decree making sex work illegal near military bases. By 1916, Grant writes, red-light districts had closed in 47 cities.

Laws in the U.S. have never again been as tolerant of sex work as they were in the 19th century. But even by latter-day standards, the last couple of decades have seen an unprecedented erosion of rights, according to Bass.

Even by latter-day standards, the last couple of decades have seen an unprecedented erosion of rights.

Over the last 20 years, history has repeated itself—and created additional difficulties for sex workers in the 21st century. Like the suffragettes before them, a new generation of radical, anti-prostitution feminists has stigmatized sex workers. In the nineties and aughts, feminists like Melissa Farley and Janice Raymond developed the concept of human trafficking—any illicit movement to bring people to the U.S., as well as other countries, for labor and sexual exploitation. To their eyes, trafficking was especially applicable to female sex workers arriving from Eastern Europe after the Soviet Union collapsed. But the irony, Bass says, was that “most of the women from Eastern Europe knew what they were getting into and they were doing it for economic reasons, by choice.”

The war against human trafficking also got a boost from the War on Terror. The number of people designated as trafficking victims by the annual State Department Trafficking in Persons report has crept up in the years following 9/11: The department’s 2002 report stated “at least 700,000, and possibly as many as four million men, women and children worldwide” were trafficking victims; in the 2014 report, the estimate had risen to 20.9 million. These statistics are wildly insupportable—as Tom Kecskemethy wrote for us earlier this year, we know very little about the scope and nature of trafficking. Nonetheless, they provide the grounds for ongoing persecution of sex workers who have not been coerced. The trafficking narrative is basically a way for anti-trafficking groups “to raise a lot of money and crack down on prostitution," Bass says.

There have been some important moves toward equality, especially since the 1960s and '70s, when the modern sex workers rights movement began. Sex workers were central to the 1969 Stonewall riots, which inaugurated the movement for gay rights. Organizations like COYOTE have organized for, and raised awareness of, de-criminalization as a viable policy option in the U.S. Most recently, testimony from sex worker advocacy organizations contributed to Amnesty International's recommended policy to de-criminalize sex work. De-criminalization makes sense from the standpoint of public safety, according to Bass. If their work were de-criminalized, prostitutes could work with police to get violent predators off the street. It also makes sense from a public health standpoint, she says. In countries that have de-criminalized prostitution, HIV infections rates are significantly diminished.

But health and safety don't drive U.S. prostitution policy in the modern day; instead, the history suggests, stigma does. And while prejudices against many other groups have been mitigated, or at least seriously questioned in law over the last 150 years, antipathy toward sex workers has proven difficult to uproot. History shows us that it is possible for the U.S. to treat sex workers better, and that sex workers can effectively push for change. But it also shows, depressingly, that, for sex workers, there's no guarantee the future will be better than the past.