Sex Worker Rights Organizations Challenge Constitutionality of Federal Law That Criminalizes Free Speech

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Sex Worker Rights Organizations Challenge Constitutionality of Federal Law That Criminalizes Free Speech

Washington, DC (September 15, 2022) — Decriminalize Sex Work (DSW), joined by eleven other organizations working to ensure the health, safety, wellbeing, and human rights of sex workers and survivors of trafficking, filed a new Amicus brief supporting the appellants in a federal case challenging the criminalization of protected speech. The Stop Enabling Sex Traffickers and Fight Online Sex Trafficking Acts (SESTA/‍FOSTA), which became law in 2018, damage the longstanding “safe harbor” rule provided by Section 230 of the Communications Decency Act, which protects freedom of speech on the internet. Individuals depend on this freedom to work, socialize, and exchange ideas online.

Woodhull Freedom Foundation et al. v. United States argues that SESTA/FOSTA is an unconstitutional violation of the First and Fifth Amendments. The case, filed in 2018, has again reached the U.S. Court of Appeals for the District of Columbia. DSW’s Amicus brief details the historical and political contexts that have bred misguided anti-trafficking policies and laws built on the conflation of sex work and trafficking. The law’s failure to differentiate between the two has injured sex workers and survivors. “Both qualitative and quantitative evidence show that SESTA/FOSTA has caused immense harm to already marginalized and vulnerable communities, without advancing its purpose to combat trafficking. It must be repealed,” said Rebecca Cleary, DSW staff attorney and attorney for Amici Curiae.

Proponents of the law argue that fighting human trafficking, a heinous and violent crime, is worth broad internet censorship. However, the law, as written, fails to punish traffickers. Three years after it was enacted, the Government Accountability Office (GAO) found that it was an abject failure. Free speech, internet rights advocates, and law-enforcement officials have protested the law. Instead of combating trafficking, SESTA/FOSTA:

* Endangers trafficking survivors and sex workers
* Impedes law enforcement’s efforts to find victims and prosecute traffickers
* Censors free speech on the internet and endangers the livelihoods of informal service sector workers

The brief concludes, “SESTA/FOSTA is the shining example of what happens when policymakers conflate sex work and human trafficking: trafficking numbers remain the same, victims get left behind, and those facing the greatest consequences are not traffickers but already marginalized communities.” Amici curiae include DSW, The Sex Workers Project of the Urban Justice Center, Freedom Network, Brooklyn Defender Services, The Erotic Laborers Alliance of New England, Old Pros, National Coalition for Sexual Freedom, New York Transgender Advocacy Group, Free Speech Coalition, Sex Workers Outreach Project Brooklyn, Gays and Lesbians Living in a Transgender Society (GLITS), and St. James Infirmary.

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Decriminalize Sex Work (DSW) is a national organization pursuing a state-by-state strategy to end the prohibition of consensual adult prostitution in the United States. DSW works with local organizations, advocates, and lobbyists to build community support and convince legislators to stop prostitution-related arrests. Evidence shows that decriminalizing sex work will help end human trafficking, improve public health, and promote community safety.

New Report: New York Prostitution Arrests Target Women and People of Color

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New Report: New York Prostitution Arrests Target Women and People of Color

Prostitution arrests seemingly shifted from street arrests to massage-parlor raids

New York, NY (February 15, 2022) — Prostitution arrests in New York State overwhelmingly target women and people of color, according to a new report released by the national advocacy organization Decriminalize Sex Work.

The report aggregates data in New York that have not been previously examined in their totality, finding that:

* In 2019, the enforcement of crimes explicitly involving prostitution, including loitering for the purpose of engaging in a prostitution offense, resulted in the arrest of female-identified individuals 97% of the time.

* Similarly, in 2019, these prostitution-related arrests targeted people of color more than 90% of the time.

* In the last 10 years, 90% of individuals arrests for patronizing a prostitute in the third degree were Black, Indigenous, and people of color (BIPOC), despite the fact that national studies report between 80% and 85% of sex buyers are white men. Convictions in New York showed a similar racial bias.

* Arrest rates for prostitution and related crimes are declining in New York. Instead, those arrests have seemingly shifted to people working at unlicensed massage parlors, locations NYPD Vice Squad regularly raid as a result of anti-Asian bias and discrimination.

“Lawmakers in New York, particularly in New York City, have been very vocal about trying to protect survivors of human trafficking as well as sex workers. However, in general, the lived experience of individuals does not reflect this,” said Frances Steele, research and policy coordinator at Decriminalize Sex Work. “Not only are these policies failing, but they are disproportionately harming people of color.”

“We all want to end human trafficking. Arrest data, public health research, and the lived experiences of those in the industry all point to full decriminalization of consensual adult sex work as the best way to diminish exploitation. Because this is a deeply emotional issue, individual beliefs and bias often get in the way of enacting the most effective and safest policies. We must turn to the data and ensure a fact-based approach to making policy — not one based on stereotypes, tropes, misinformation, or fear,” said Melissa Broudo, Legal Director of Decriminalize Sex Work.

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Decriminalize Sex Work’s new report — “By the Numbers: New York’s Treatment of Sex Worker and Trafficking Survivors” — examined trends in arrest and conviction rates for both prostitution and human-trafficking offenses in New York State, as reported by the New York State Division of Criminal Justice Services.

Vermont Voters Support the Decriminalization of Sex Work

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Ariela Moscowitz, director of communications
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Montpelier, VT (January 31, 2022) — A recent statewide survey shows Vermonters support the decriminalization of sex work by more than 13% compared to those that think sex work should remain a crime (46–33). 21% of those surveyed remain undecided. The poll found that Democrats are far more supportive (50–24) of decriminalization than Republicans (30–57). Individuals over the age of 65 are least in favor of reform, while those between the ages of 18 and 45 are most supportive of decriminalization followed by those between the ages of 46 and 65. These results closely reflect national trends.

Evidence supporting the numerous benefits of decriminalization continues to surface. Sex workers, academics, human-rights activists, and public-health experts are increasingly calling on legislators to consider the facts around decriminalization, which demonstrate increases in public health and safety and decreases in exploitation.

On January 14, 2022, Representatives Colburn of Burlington and Kornheiser of Brattleboro, along with eleven other legislators, introduced H.630, an act relating to voluntary engagement in sex work. The bill, citing research and evidence proving the many deleterious effects of criminalization, cultural changes in the century since laws prohibiting prostitution were enacted, and “Vermont’s commitment to personal and bodily autonomy” proposes to decriminalize consensual adult prostitution while reinforcing laws against human trafficking.

The survey also asked voters whether they would support decriminalizing the sale of sex, while keeping the purchase of sex illegal. Only 13% support this model of prohibiting prostitution, while 61% oppose it, and 26% are unsure. Bills proposing this “entrapment model” — also called the “Nordic model” or “equality model” — have been introduced in the New York, Massachusetts, and Maine state legislatures. Lawmakers market this legislation as a means of curtailing prostitution and combatting trafficking, while evidence shows it does neither. Countries that have implemented the entrapment model continue to see violence and exploitation perpetrated against sex workers.

Most individuals involved in selling and buying sex are consenting adults. Sex work is not inherently dangerous or exploitative, but criminalization puts sex workers at risk and creates conditions that allow for trafficking to proliferate. “The decriminalization of sex work has reduced exploitation where and when it has been implemented,” said J. Leigh Oshiro-Brantly, co-founder of The Ishtar Collective, Vermont’s only organization run by and for sex workers and survivors of trafficking and research and project manager at Decriminalize Sex Work. “Unambiguous data from around the world shows a clear correlation between laws like the equality or entrapment model and an increase in violence and exploitation within the sex trade,” they continued.

The decriminalization of consensual adult sex work, a critical component of criminal-justice reform, has gained considerable traction amid a nationwide reckoning with the dangers of over-policing, a ballooning prison population, and cries for immediate changes to the criminal justice system.

The poll, which surveyed 616 registered voters in Vermont, was conducted by Public Policy Polling on January 17 and 18, 2022.

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Vermonters Urge Burlington City Council To Change Discriminatory and Dangerous Language in City Charter

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Ariela Moscowitz, director of communications
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Burlington, VT (December 12, 2021) — The Burlington City Council will vote on whether to adopt recommended changes to archaic, dangerous, and discriminatory language in the Burlington City Charter. The formal process to amend the charter mandate to “restrain and suppress houses of ill fame and disorderly houses, and to punish common prostitutes and persons consorting therewith,” was triggered by a resolution by City Councilor Perri Freeman, P-Central, which was unanimously approved in June 2021. The City Council Charter Committee then voted in favor of bringing the amendments to the full Council. On December 13, 2021, City Councilors will determine if the measure should head to the March ballot, giving voters the opportunity to make a change that would support human rights and dignity.

Vermonters who engage in consensual adult sex work and individuals who have experienced trafficking are urging City Councilors to allow residents to vote on the issue. “We have been criminalized and marginalized for too long,” said Henri Bynx, co-founder of The Ishtar Collective, Vermont’s only organization run by and for sex workers and survivors of trafficking, “We’re asking our neighbors to recognize us as deserving of dignity and bodily autonomy. This charter change would be a step in the right direction towards improving the health and safety of individuals who engage in sex work consensually and those who are trafficked into it,” Bynx continued.

The charter amendment would not decriminalize prostitution, as it remains illegal at the state level. In May 2021, Gov. Phil Scott approved legislation that provides limited criminal immunity to people who report a crime committed against them, or which they witnessed, while voluntarily involved in sex work or while a victim of human trafficking. “This [law] means that a pimp or an abuser could no longer threaten arrest to exploit a sex worker or survivor of trafficking, which is a common tactic of exploitation. It shows lawmakers care about us as people. They are taking action to protect our safety by giving us equal protection under the law,” said Bynx.

Sex work is not inherently dangerous or exploitative but criminalization puts sex workers at risk and creates conditions that allow for trafficking to proliferate. “Permitting sex workers to come forward to report being the victim of or witness to a crime without fear of arrest is critical but I’m looking forward to the day when we will no longer be as vulnerable to crime or exploitation as we are now. That day will come when consensual adult sex work is decriminalized,” said J. Leigh Oshiro-Brantly, co-founder of The Ishtar Collective and research and project manager at Decriminalize Sex Work.

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At Least 42% of U.S. Voters Want Prostitution Decriminalized

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Ariela Moscowitz, director of communications
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New York, NY (October 14, 2021) — A national survey recently found that 42% of registered voters are in favor of decriminalizing prostitution, while 36% think prostitution should remain a crime and 22% remain undecided. Democrats are far more supportive of decriminalization than others, as are people who identify as men. Individuals over the age of 65 are least in favor of reform, while those between the ages of 18 and 45 are most supportive of decriminalization followed by those between the ages of 46 and 65.

Evidence supporting the many benefits of decriminalization continues to surface. Sex workers, academics, human-rights activists, and public-health experts are increasingly calling on legislators to look at the facts around decriminalization, which demonstrate increases in public health and safety and decreases in exploitation.

The survey also asked voters whether they would support decriminalizing the sale of sex, while keeping the purchase of sex illegal. Only 7% support this model of prohibiting prostitution, while 60% oppose it, and 33% are unsure. Bills proposing this “entrapment model” — which some people call the “Nordic model” or “end-demand model” — have been introduced in the New York, Massachusetts, and Maine state legislatures. Lawmakers market this legislation as a means of curtailing prostitution and combatting trafficking, while evidence shows it does neither. Countries that have implemented the entrapment model continue to see violence and exploitation perpetrated against sex workers.

The vast majority of individuals involved in selling and buying sex are consenting adults. “Proponents of the entrapment model conflate human trafficking with consensual adult sex work, intentionally confusing the issue to advance their agenda of restricting sex between consenting adults. Where trafficking and prostitution are conflated, human trafficking victims are treated like criminals and consenting adults are needlessly arrested,” said Ariela Moscowitz, director of communications at Decriminalize Sex Work (DSW), which commissioned the national poll. “There is less support for the entrapment model than there is for white supremacist views, yet legislators continue to propose the former,” Moscowitz continued.

Decriminalization, a critical component of criminal-justice reform, has gained considerable traction amid a nationwide reckoning with the dangers of over-policing, a ballooning prison population, and cries for immediate changes to the criminal justice system.

The poll, which surveyed 758 registered voters in the United States, was conducted by Public Policy Polling on September 30 and October 1, 2021.

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FBI: Prostitution Arrests Outnumber Trafficking Arrests 38 to 1

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Ariela Moscowitz, director of communications
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New York, NY (September 30, 2021) — There were 12,895 arrests for prostitution-related offenses reported to the FBI in 2020, and only 340 for sex trafficking offenses, says a newly released report from the FBI’s Uniform Crime Reporting (UCR) Program. The UCR notes that “law enforcement agencies participate voluntarily and submit their crime data either through a state UCR program or directly to the FBI’s UCR Program.”

Arrests for prostitution-related offenses outnumber those for sex trafficking by nearly 38 to 1. The FBI defines sex trafficking as “inducing a person by force, fraud, or coercion to participate in commercial sex acts, or in which the person induced to perform such act(s) has not attained 18 years of age.”

The vast majority of individuals involved in the commercial sex industry are consenting adults. Policy makers and law enforcement often target consensual adult sex work under the guise of combatting human trafficking, an egregious human rights abuse. “When trafficking and prostitution are conflated, human trafficking victims are treated like criminals and consenting adults are needlessly arrested,” said Ariela Moscowitz, director of communications at Decriminalize Sex Work (DSW).

Prostitution-related arrests are ranked third on the list of arrests for victimless crimes, only behind drug violations and “drunkenness.” “The harms caused by the criminalization of consensual adult sex work are numerous and severe,” said Moscowitz. “Adults should not be arrested for engaging in private activities that do not harm others. Law enforcement should devote their resources to combatting real crimes,” she continued.

Both prostitution arrests and sex trafficking arrests in 2020 were down almost fifty percent from 2019. While the FBI does not attempt to explain the decrease in arrests, several factors could be responsible for the shift, including the COVID-19 pandemic.

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Vermont Governor Approves Law Combating Crime & Exploitation

Montpelier, VT (May 17, 2021) — Today Governor Phil Scott approved legislation that will provide limited criminal immunity to people who report a crime committed against them, or which they witnessed, while voluntarily involved in sex work or while a victim of human trafficking.

Sex workers and advocates for survivors of human trafficking and domestic violence testified in support of H.18, an act relating to sexual exploitation of children and limited immunity from liability for a person reporting a crime, commonly referred to as a “Good Samaritan Law.” The bill was sponsored by Republican Rep. Tom Burditt and Democratic Rep. Maxine Grad. The provision on limited criminal immunity was added to the bill as an amendment without controversy and with minimal debate.

“As insiders of the sex industry, we are often the first line of defense against trafficking. … We can spot signs of exploitation or coercion that are subtle and easy to miss, but we cannot report that or intervene safely in a criminalized or fear-based stigmatized environment,” noted J. Leigh Oshiro-Brantly, research and project manager at Decriminalize Sex Work.

“Passing this bill means that a pimp or an abuser could no longer threaten arrest to exploit a sex worker or survivor of trafficking, which is a common tactic of exploitation,” said Henri Bynx, co-founder and co-director of The Ishtar Collective, a Vermont-based nonprofit organization serving sex workers, survivors of violence, and trafficking. They continued saying, “It shows lawmakers care about us, as people. They are taking action to protect our safety by giving us equal protection under the law.”

H.18 is critical to protecting the human rights, health, and safety of all Vermonters. Kelly Arbor, Testing and Education Manager at Vermont CARES, says, “If I’m in a dangerous situation, I need all the tools in my tool belt … if I need to call the police … if I need that tool, I should have the right to make that call. And until we [had] a Good Samaritan Law, sex workers [didn’t] have that right.”

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Senators Merkley and Sasse Introduce Bill That Infringes on Privacy Rights

NEW YORK (Dec. 24, 2020) — U.S. Senators Jeff Merkley (D-OR) and Ben Sasse (R-NE) introduced the Stop Internet Sexual Exploitation Act (SISEA) last week. They claim that the bill’s purpose is to protect children, who cannot consent, and adults who have not consented to the sharing of pornographic images of them online. However, forty-six states and Washington, D.C. have anti-revenge porn laws in place and federal law prohibits the production, distribution, importation, reception, or possession of any image of child pornography. This bill is unnecessary and infringes on the rights and income of adults who engage in sex work consensually.

SISEA is like other misguided initiatives such as the EARN IT ACT and SESTA/FOSTA. Proponents of these laws argue that they combat human trafficking, although the laws, as written, fail to punish traffickers. Instead, they undercut the most crucial statute protecting freedom of speech on the internet (Communications Decency Act 230) and endanger the safety, health, and human rights of consensual sex workers and trafficking victims. Far from being a tool to combat sexual exploitation, SESTA/FOSTA ultimately forced websites to close, endangering sex workers and leading to their increased exploitation and financial desperation.

A recent barrage of anti-sex policies, including Instagram’s changes to its terms of service, threatens free speech and harms sex workers. Decriminalize Sex Work’s legal director Melissa Broudo explained, “There is a clear, consistent, and targeted attack on sex workers online under the guise of protecting women and ensuring safety; ironically, all of these measures will ultimately harm those who are the most marginalized. They all fail to target actual trafficking, but instead seek to censor and obstruct people’s ability to work independently and safely.”

Merkley and Sasse claim that this bill is about privacy, but it requires individuals to volunteer sensitive information. The bill calls for people who do not want their pornographic content posted online to enter identifying information into a database. Though the bill mentions that identifying information would be protected, it requires platforms that host pornographic content to cross check their information against the database, with no practical guidance on how to do this without breaching confidentiality. The consequences for an individual whose name is made public and associated with this database could be disastrous. Similarly, individuals who upload videos must trust that online platforms will protect their information.

The bill would create an impossible burden for most platforms. Smaller platforms, especially, will either shut down or ban all pornographic content completely, leaving sex workers who rely on these sites without income. SISEA was introduced as Congress announced Americans would receive $600.00, if they receive anything at all, which many argue does nothing to ease the financial devastation caused by COVID-19. This bill adds injury to insult for the most marginalized workers.

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Decriminalize Sex Work is a national organization pursuing a state-by-state strategy to end the prohibition of consensual adult prostitution in the United States. We work with local organizations, advocates, and lobbyists to build community support and convince legislators to stop prostitution-related arrests. Evidence shows that decriminalizing sex work will help end human trafficking, improve public health, and promote community safety.

Advocacy Group Launches Grants Program for Decriminalizing Prostitution

NEW YORK (Dec. 1, 2020) – Decriminalize Sex Work (DSW) launched a $150,000 grants program to fund projects that will have a measurable impact on decriminalizing adult prostitution in the U.S. DSW runs the only grants portfolio that exclusively funds projects to decriminalize consensual adult prostitution in the U.S. Most grants will be directed to sex worker-led organizations working to change laws on the local and state levels.

DSW awarded grants to the following recipients:

● Ceyenne Doroshow — Founder and executive director of Gays and Lesbians Living in a Transgender Society (G.L.I.T.S.) in NYC. G.L.I.T.S. addresses the stigmatization and criminalization of trans people due to laws prohibiting sex work. Ceyenne is also a prominent leader in the Black Trans Lives Matter movement and has been featured in national news outlets such as Vogue, GQ , and The Wall Street Journal.

● The Ishtar Collective — Vermont’s first-ever anti-trafficking and sex-worker-rights organization run by current and former sex workers, industry allies and survivors of human trafficking local to Vermont.

● SWOP Behind Bars — A national organization that assists currently and formerly incarcerated sex workers.

“In a grossly underfunded movement, $150,000 of grant money has the potential to make a big impact on decriminalizing consensual adult prostitution,” said Crystal DeBoise, DSW’s director of strategic partnerships. “Our grants program will support local, on-the-ground activists who share a mission to decriminalize sex work, promote health and safety, and fight human trafficking.”

Organizations that advocate for sex workers’ rights and practical solutions to ending human trafficking are gravely underfunded. The lack of funding is a result of stigma and misunderstandings about these populations. Also, a large share of the federal money allocated to stopping human trafficking is misused by law enforcement to arrest consensual adult sex workers and their clients.

DSW accepts grants on a rolling basis. Applicants should submit a letter of intent on DSW’s website.

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EARN IT Act Is a Wolf in Sheep’s Clothing

New animation shows how the EARN IT Act, now on the Senate floor, will curtail end-to-end encrypted messages, ending internet privacy as we know it.

NEW YORK, NEW YORK – July 22 – The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020, also known as the EARN IT Act, by a unanimous vote of the Senate Judiciary Committee, has moved to the Senate floor. The bill was originally introduced by Republican Sen. Lindsey Graham of South Carolina. If this dangerous bill becomes law, it will end private communication on the internet.

The EARN IT Act is part of a long history of using sex panics to expand state power. If we fall for it this time we may effectively end freedom of expression and open communication on the internet as we know it. To raise awareness of this wolf in sheep’s clothing, Decriminalize Sex Work, a national advocacy organization, has released a new animated short:

EARN IT threatens website providers’ and other intermediaries’ ability to provide end-to-end encrypted services. End-to-end encryption is critical to ensuring private communication and often personal safety.

“Do voters really want the government snooping into their most private communication, with therapists, journalists, or intimate friends?” asks Kaytlin Bailey, Communications Director for Decriminalize Sex Work. “It’s easy to imagine how Trump’s DOJ will abuse these new surveillance tools to attack whistleblowers, protestors, and adult consensual sex workers.”

End-to-end encryption allows journalists to communicate about sensitive issues with sources, allows doctors to communicate with patients, and allows the average person to share sensitive financial information with trusted people. EARN IT can destroy all of this by exposing web platforms to an “enormous number of lawsuits in which they will potentially face liability for their choice to protect users’ privacy and security through end-to-end encryption (E2EE),” according to Emma Llansó with the Center for Democracy & Technology. “Prosecutors and civil litigants will point to the encrypted status of an intermediary’s services as a relevant consideration in their claims, even for criminal and civil provisions with a ‘knowingly’ mens rea. Even if an intermediary successfully defends against a particular claim, the consistent threat of litigation, and challenge to their decision to employ encryption, will be a strong disincentive against providing E2EE and continuing to have to defend that decision in court.”

“We can learn from the damaging consequences of the 2018 Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and Stop Enabling Sex Traffickers Act (SESTA),” says Bailey. “Donald Trump signed FOSTA-SESTA into law in April of 2018 to devastating effects. Rather than protecting children and victims of sex trafficking, this set of laws has made sex work more dangerous.”

Llansó writes, “The clear lesson from the SESTA-FOSTA debacle: When content hosts, website operators, social media services, search engines, and other intermediaries face increased legal risk for user-generated content, it is the users who end up suffering, a cost often borne by the most vulnerable.”

Like so many of the save-the-children bills before it, EARN IT will not combat child sexual exploitation, but it will be the largest expansion of state surveillance powers in recent history, eliminating private communication on the internet.

Decriminalize Sex Work

Decriminalize Sex Work is a national organization pursuing a state-by-state strategy to end the prohibition of consensual, adult prostitution in the United States. We work with local organizations, advocates, and lobbyists to build community support and convince legislators to stop prostitution-related arrests. Evidence shows that decriminalizing sex work will help end human trafficking, improve public health, and promote community safety.

Kaytlin Bailey
Communications Director
512-942-6078 Ext 1
[email protected]

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