DSW Supports the Continued Legal Fight Against FOSTA/SESTA

August 23, 2019

Next month, the DC Circuit Court of Appeals will hear the appeal of Woodhull Freedom Foundation et al v. The United States of America, a case that seeks to challenge the constitutionality of the Fighting Online Sex Trafficking Act (FOSTA). FOSTA modified the Communications Decency Act Section 230 to permit civil and criminal suits against third-party platforms/websites that promote or permit prostitution or trafficking. DSW, along with many other sex workers’ rights, civil liberties, and human rights organizations vehemently oppose this law. Woodhull Freedom Foundation’s initial challenge to FOSTA was denied in U.S. District Court in 2018 on the grounds of standing, and they have since filed this appeal. DSW General Counsel Melissa Broudo co-authored an amicus brief on behalf of a dozen allied organizations in support of Woodhull’s challenge to the law back in February of this year.

Plaintiffs are asking the court to issue a preliminary injunction and put a halt to future enforcement of FOSTA, meaning no one could be arrested and charged until the case is decided. The chilling effect is undeniable and has already threatened the livelihood of sex workers and pushed many to work in less safe conditions. This is a bad and dangerous law.

DSW General Counsel Melissa Broudo co-authored an amicus brief on behalf of a dozen allied organizations.

Tiffany Cabán Concedes Queens DA Race

August 6, 2019

Tiffany Cabán came within 60 votes of winning the Queens DA race, running on a platform of decriminalizing and decarcerating nonviolent offenders such as sex workers. She specifically pledged her support to the sex work community. After a lengthy recount process, she conceded on August 6.

Despite her loss, Cabán was able to push sex workers’ message of destigmatizing, decriminalizing and decarcerating. She pushed her opponent Melinda Katz and all Queens residents to rethink how we police our communities.

DSW General Counsel Melissa Broudo and one of our legal consultants, Marguerite Schauer, volunteered their time to oversee the extensive recount process of this extremely close and important election.

NY elections committee reviews all ballots cast in the DA’s race (July 25).

Hawaii Passes Historic Change to Prostitution Law

On July 2, 2019, with the passage of SB1039, Hawaii became the first state in the U.S. to allow a person to have a prostitution conviction erased without being a victim of trafficking. The previous law only expunged sex-work convictions after 6 years if there was conclusive proof of coercion or victimization. Sen. Laura Theilan (D) said that "The days of the scarlet letter are over. People who have been in prostitution should not have an onerous burden on them once they leave that job."

DSW supports the law but cautions its encouragement of conflating sex work with victimization. The best way to combat trafficking and promote safety remains full legalization so that sex workers who wish to find new employment can do so without shame or stigma, regardless of their reasons for entering the trade.

Hawaii Governor David Ige signs SB1039 into law on Tuesday, July 2. (image: CNN.com)

California To Pass Bill for the Health and Safety of Sex Workers

On July 1, 2019, the California Assembly passed SB 233 54-13. SB 233 is an act to amend section 1162 of the penal code by prohibiting the arrest of a person for misdemeanor drug- or prostitution-related offenses if that person is reporting a specified crime including assault, domestic violence, extortion, human trafficking, sexual battery or stalking. It also repeals section 781.1 of the Evidence Code, which allows condoms to be admissible as evidence in the prosecution of prostitution crimes. The bill was first introduced in February 2019 by sponsor Sen. Weiner (D), who has said the legislation is "about protecting victims and increasing public safety. … The last thing we need is for sex workers to be further victimized when they report a crime." The ease and safety of condoms access is also a driving factor. A study by Human Rights Watch found that fear of arrest often overwhelmed workers’ need to protect themselves from STDs and pregnancy. A Los Angeles-based sex worker reported using plastic bags (Clark-Fory, 2019).

SB 233 is en encouraging first step towards combatting the vulnerability of sex workers and “creating a social and political environment in California where people can seek help when they are victims of violence” says Dr. Alexandria Lutnick, senior research scientist with Aviva Consulting). Many cities, such as San Francisco and New York, have taken local action to implement these policies already, but it is important that they be initiated xx state for community and individual protection. The bill is now in the Senate with assembly amendments pending. DSW's directors have sent letters of support encouraging California Gov. Gavin Newsom to sign SB 233.

State Senator Scott Wiener (photo: sd11.senate.ca.gov)

“Gay Panic” Defense Can No Longer Be Used to Excuse Murder, a Win for Trans Sex Workers

Just before the June 30, 2019, kickoff of the World Pride March in New York City, Gov. Andrew Cuomo (D) signed A2707, a new law that bans the "gay and transgender panic" defense from being used in murder cases prosecuted in New York State. The panic defense has historically been utilized to lessen charges in the case that the defendant alleges his or her violent actions with in response to the unwanted advances of someone of the same sexual orientation. The defense has also been used in the murder trials of transgender victims. New York is the sixth state to ban the use of such a defense, the first being California in 2014.

In 1944, 19-year-old Lucien Carr used it to excuse the murder of 33-year-old David Kammerer, whom he stabbed in Riverside Park and dumped into the Hudson River. Carr alleged that Kammerer had been following him around the country making continual, unwanted sexual advances. His killing was depicted in the media as an honorable response to such a threat. Though convicted of murder, Carr pled guilty to a lessened charge of manslaughter and served only two years. The defense has been used dozens of times since then, as an outgrowth of the traditional legal doctrine of "provocation," or that the victim is partially responsible for a crime by eliciting it through some offensive action (Suk Gersen, 2019).

The memory of institutionalized violence against the LGBTQIA community lingered as the world commemorated the 50-year anniversary of the Stonewall riots on June 30. In 2018, a federal bill to ban the "gay and trans panic" defense nationwide died in a U.S. House committee. The New York bill is a step towards protecting the health, safety, and very humanity of every individual in the United States, but we still have a long way to go.

The #DecriminalizeSexWork movement has played a vital role in speaking out about the criminalization of trans and queer bodies, especially for women of color and those involved in the sex trade. Grassroots activism has been vital to the passage of this bill. We are fighting against the unjustifiable deaths of those who are most vulnerable, such as Layleen Polanco, a 27-year-old transgender woman who died in her jail cell on June 7 at Rikers, where she was being held, unable to make a $500 bail resulting from a prostitution arrest in August 2017. Polanco is the tenth transgender woman of color to be found dead in the U.S. in 2019. Decriminalization is necessary to combat state-sponsored violence, such as that condoned by the "gay panic" defense. Our path forward is to focus on public health and harm reduction and to stop the murders of innocent people.

After signing A2707 to ban “gay/trans panic” legal defense in NY, Gov. Cuomo marched in the New York City Pride parade. (photo: Brittany Newman/NYT, 2019)

Tiffany Cabán: Champion of Sex Workers’ Rights

Campaigning for district attorney of NYC, Tiffany Cabán initially declared victory on election night, June 25, 2019, but a full recount is currently ongoing due to how close the original count was after absentee ballots were figured in. The process is expected to take a few weeks.

If victorious, Canán would be the first queer Latina Democratic nominee for District Attorney in Queens. It will be a huge victory for sex workers. The 31-year-old former public defender has served New York County and the Legal Aid Society for 6 years. Ms. Cabán campaigned on a platform of criminal-justice reform, including the decriminalization of sex work.

Cabán’s win, over Democratic organization-backed Melinda Katz, was recalled after Board of Education representatives began tallying paper votes after the primary. The BOE predicts the recount, which began on July 9, will take a minimum of 10 days. Democratic nominees historically run unchallenged in Queens, so the winner will likely serve as the next District Attorney.

Despite this upset, Cabán’s campaign has been heralded as one of the most stunning victories of the new anti-establishment Democratic Party, paralleling Alexandria Ocasio-Cortez’s defeat of powerful Queens Democratic machine candidate Joe Crowley almost a year ago (Nixon, New York Magazine). In a speech at the New Visions Democratic Club debate in Jackson Heights on April 29, Cabán asserted, “Who I am and what I fight for has been shaped by my experiences in over-policed, over-criminalized and resource-starved communities.” Her platform encompasses the reversal of economic and racial inequality in policing, increasing funding for schools rather than prisons, an end to mass incarceration and the war on drugs.

This election has exciting implications for the work of DSW and the broader #decrimsexwork coalition. A memo instructing fellow DAs not to prosecute sex workers and their customers has been pledged as one of Cabán’s first priorities if she were to take office. Not only would this change the lives of sex workers in Queens, increasing rights and safety through the legitimization of their work, but it shows the effects of decriminalization to be real and meaningful. In a Vice article, former Manhattan assistant DA Marie Solis describes how, when the District Attorney declines to prosecute an offense, it functions as a demonstrative trial run for how decriminalization can improve public safety—and pushed for legislative action, as with the decriminalization of marijuana possession. The decriminalization model, proposed by DecrimNY and endorsed by Cabán, would repeal parts of New York penal code that criminalize prostitution and especially target transgender women of color (Solis, Vice).

At DSW, we believe the current decriminalization bill could use improvements, and we are excited by the possibility of promoting them with the help of our supporters. DSW is humbled and inspired by the hard work of so many in this community that made such a historic campaign possible—and honored to be involved in this exciting step towards rights and safety for all.

Tiffany Cabán campaigns in New York City on the day of her District Attorney Democratic Primary election. (photo: Seth Wenig/AP, 2019)

New York Legislator To Introduce “Stop Violence in the Sex Trades Act” – June 10, 2019

Protesters advocate for the full decriminalization of sex work in New York State. (Photo: Rolling Stone)
On June 10, Assemblywoman Julia Salazar, in tandem with local coalition DecrimNY, announced that she would be introducing a series of bills in the NY legislature that would fully decriminalize sex work in New York State. While it usually takes years to enact legislation into law, the mere introduction of the NY legislation fits with the trend of good legislation that has been introduced in states like NH, RI, and HI this year — something we haven't seen in decades of organizing.