Vol. 43 Associate Editor
Sex workers are one of the most marginalized and stigmatized communities internationally. The precarious socioeconomic status of sex workers has been exacerbated by the COVID-19 pandemic. The pandemic has transformed the sex work industry internationally. In-person sex work has become virtually impossible and many street-based sex workers have been forced to choose between risking their health and paying their bills. Much of the industry, however, has made a big shift to the online format. This shift has not come without complications, however. Both sex workers that had previous experience working in-person and those entering the industry for the first time are struggling to navigate an oversaturated market. Furthermore, the criminalization of sex work in nearly every country and the conflation of sex work and human trafficking by policymakers and intergovernmental organizations like the U.N. have functioned as additional roadblocks for sex workers that use the internet to make their living and to keep themselves safe. In addition to the difficulties in navigating the online market, sex workers have faced the obstacles of evictions, police raids, and exclusion from many government pandemic relief programs. This post discusses the historical conflation of sex work and human trafficking, the impact of the internet on sex work, and the increased marginalization sex workers have experienced due to COVID-19. Finally, this post argues that the international decriminalization of consensual sex work is essential for the promotion of both the physical and financial well-being of sex workers.
Historical Background: the Conflation of Sex Work and Human Trafficking
The conflation of sex work and human trafficking is not a phenomenon unique to the pandemic. The modern anti-trafficking movement has some of its roots in the anti-white slavery movement and legislation of the early 20th century. International fears of sexual exploitation centered primarily on the racist stereotypes of the innocent, white woman falling victim to dangerous, foreign men. In response to fears of “white slavery,” several countries signed on to the Agreement for the Suppression of the “White Slave Traffic” in 1904 and the International Convention for the Suppression of the White Slave Traffic in 1910. While the goal behind these agreements was to protect potential victims of sexual exploitation, some nationally enacted legislation that followed criminalized sex workers. For example, following the international agreements, the United States enacted the “White Slave Traffic Act” in 1910 (later known as the Mann Act), which made it illegal to transport people across state lines for “the purpose of prostitution or debauchery,” or for, “any other immoral purpose.” In United States v. Holte, the U.S. Supreme Court held that a sex worker was guilty of violating the Mann Act for conspiring with a man to transport her across state lines for the purpose of “prostitution of herself.”
The conflation of sex work and human trafficking was resurrected in the international sphere towards the end of the 20th century, leading to the U.N.’s Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime (the Trafficking Protocol) in the year 2000. The protocol defines trafficking as the recruitment or movement of persons for the purposes of exploitation through the use of threat, force, or coercion. The protocol further describes that exploitation encompasses the involuntary servitude in a variety of different sectors, including “prostitution or other forms of sexual exploitation.” Notably, article 3, section b) of the protocol states that the consent of a victim of trafficking is irrelevant. The U.N.’s stance on the irrelevance of consent with regards to the Trafficking Protocol was reaffirmed in 2014 by the United Nations Office on Drugs and Crime in the issue paper “The Role of ‘Consent’ in the Trafficking in Persons Protocol.”
The Age of the Internet
The conflation of sex work and human trafficking has also influenced legislation around sex work and the internet, significantly in the form of FOSTA-SESTA. The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) were passed in the U.S. in 2018, and although they are American legislative actions, they have impacted sex workers internationally. In the early 2000s, websites such as Craigslist and Backpage became popular platforms for sex workers internationally to post classified ads for their services. These websites increased sex workers’ safety by allowing them to vet clients before interacting with them in person. However, despite the benefits sex workers enjoyed from these websites, mounting pressure from government entities, in response to growing concerns of human trafficking, made these platforms increasingly less viable. In 2010, Craigslist shut down its international adult services section. Backpage followed in 2017 by removing its adult services section and completely shutting down in 2018. The culmination of these efforts by American legislators to curb human trafficking on the internet emerged in the form of FOSTA-SESTA in 2018. FOSTA-SESTA make website publishers liable if users are found posting ads for prostitution, even if it is consensual. After the passage of these acts, many websites engaged in self-censorship and deletion of certain sections as a means to avoid possible liability. FOSTA-SESTA impacts more than just websites that allow users to post classified ads. Dating apps, discussion forums, social media sites, and any other platforms that have user-created content could be liable under the acts. As websites have succumbed to the pressure of complying with FOSTA-SESTA’s strict requirements, sex workers have been left with fewer tools to ensure safety and stability in their work.
Sex Work and the Pandemic
The COVID-19 pandemic has created additional obstacles for sex workers. Many sex workers that had been engaging in full-service in-person work have been forced to adapt. While some sex workers must now make the decision of whether to risk their health or pay their bills, others have moved online. Particularly the website OnlyFans saw a massive increase in users during the beginning of the pandemic, gaining an average of 500,000 new users a day in December 2020. OnlyFans is a content subscription based service that allows users to post adult content behind paywalls that can be accessed through fees set by creators. While OnlyFans has given sex workers the opportunity to work more safely during the pandemic, it has come with its own challenges. The influx of new users has resulted in a major oversaturation of the market that makes it difficult to make a living using OnlyFans unless they already have an online following. Many sex workers have reported that they need to work a full 40 hours to make on OnlyFans what they had been able to make in an hour of in-person work. As of 2021, the majority of OnlyFans users make less than $145 a month, while the top 1% of users make approximately 33% of the money, and the top 10% of users make approximately 73% of the money. Furthermore, when sex workers use social media sites as a means to direct traffic to their OnlyFans, they are often censored due to FOSTA-SESTA.
In addition to the difficulties of trying to transition to the online format, sex workers have faced other challenges. Worldwide, many sex workers have been excluded from governmental emergency funding due to their inability to provide proof of employment and/or loss of income. Additionally, many sex workers have reported “increased discrimination, harassment, and punitive crackdowns, resulting in violence, the raiding of their homes, compulsory COVID-19 testing, arrest and threatened deportation of migrant sex workers.” These struggles are further exacerbated by diminished access to healthcare as a result of poverty, criminalization, discrimination, and stigma sex workers face.
In order to address the myriad of obstacles sex workers must contend with, which have been worsened by the pandemic, international human rights organizations like Amnesty International have called for governments to take action. Amnesty International has recommended that governments protect the health and human rights of sex workers by including them in social and economic support schemes, repealing laws that criminalize sex work, and removing some of the barriers to accessible healthcare such as discrimination and economic obstacles. These suggestions are best implemented by governments on a country by country basis, primarily due to the urgency of the situation. Additionally, the laws surrounding the criminalization of sex work vary from country to country. The pandemic has highlighted the many ways sex workers have been ignored by governments and forced to navigate precarious circumstances. In light of COVID-19, governments now have the opportunity to not only enact emergency legislation to include sex workers in essential government support schemes, but also an opportunity to permanently change the law surrounding sex work, most importantly in the form of decriminalization. The first step towards decriminalization is the uncoupling of human trafficking and sex work on an international level. Without this change, sex workers will continue to be marginalized and as a consequence will continue to suffer physically and financially.
 Amnesty Int’l, Include Sex Workers in the COVID-19 Response, AI Index POL 30/2788/2020 (July 28, 2020).
 Manola Secaira, Already Stigmatized, Sex Workers Have Fewer Choices in a Pandemic, Crosscut (Sept. 14, 2020), https://crosscut.com/focus/2020/09/already-stigmatized-sex-workers-have-fewer-choices-pandemic.
 Erika Beras, Covid Transformed the Sex Work Industry but Not the Laws Governing It, Marketplace (Mar. 4, 2021), https://www.marketplace.org/2021/03/04/covid-transformed-the-sex-work-industry-but-not-the-laws-governing-it.
 Katie Tastrom, I’m a Sex Worker Who Has to Decide Whether to Risk My Life to Pay My Bills During COVID-19, HuffPost (Oct. 14, 2020, 9:00 AM), https://www.huffpost.com/entry/sex-worker-covid-19-pandemic_n_5f7f299fc5b6a9322e248a7c.
 Beras, supra note 3.
 Secaira, supra note 2; Beras, supra note 3; Tastrom, supra note 4.
 Amnesty Int’l, supra note 1.
 Laura Lammasniemi, ‘White Slavery’: The Origins of the Anti-Trafficking Movement, Open Democracy (Nov. 16, 2017), https://www.opendemocracy.net/en/beyond-trafficking-and-slavery/white-slavery-origins-of-anti-trafficking-movement.
 Id.; International Agreement for the Suppression of White Slave Traffic, May 18, 1904, 35 Stat.1979 1 L.N.T.S. 83; International Convention for the Suppression of the White Slave Traffic, May 4, 1910, 211 Consol. T.S. 45, 103 B.F.S.P. 244.
 White-Slave Traffic (Mann) Act, ch. 395, 36 Stat. 825 (1910) (current version at 18 U.S.C. §§ 2421–24); Andrew Glass, Congress Passes the White Slave Traffic Act, June 25, 1910, Politico (June 25, 2018, 12:00 AM), https://www.politico.com/story/2018/06/25/this-day-in-politics-june-25-1910-663071.
 United States v. Holte, 236 U.S. 140, 143–45 (1915).
 United Nations, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2237 U.N.T.S. 319.
 Id, art. 3.
 U.N. Office on Drugs and Crime, Issue Paper: The Role of ‘Consent’ in the Trafficking in Persons Protocol (2014), https://www.unodc.org/documents/human-trafficking/2014/UNODC_2014_Issue_Paper_Consent.pdf.
 Aja Romano, A New Law Intended to Curb Sex Trafficking Threatens the Future of the Internet as We Know It, Vox (July 2, 2018, 1:08 PM), https://www.vox.com/culture/2018/4/13/17172762/fosta-sesta-backpage-230-internet-freedom.
 Samantha Cole, How a ‘Human Trafficking’ Narrative Was Used to Kill Backpage, Vice (Apr. 13, 2018, 4:55 PM), https://www.vice.com/en/article/vbxqv3/backpage-sex-trafficking-texas-carl-ferrer.
 Romano, supra note 19; Cole, supra note 20.
 Ryan Singel, Craigslist Shuts Down International “Adult Services” Sections, Wired (Dec. 18, 2010, 3:18 PM), https://www.wired.com/2010/12/craigslist-adult-services-international.
 Cole, supra note 20.
 Romano, supra note 19.
 Secaira, supra note 2; Beras, supra note 3; Tastrom, supra note 4.
 Tastrom, supra note 4.
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 Tastrom, supra note 4.
 Influencer Mktg. Hub, supra note 31.
 Secaira, supra note 2; Beras, supra note 3.
 Covid-19, Glob. Network of Sex Work Projects (NSWP), https://www.nswp.org/page/covid-19 (last visited Nov. 1, 2021); Amnesty Int’l, supra note 1.
 Amnesty Int’l, supra note 1.
 Amnesty International Publishes Policy and Research on Protection of Sex Workers’ Rights, Amnesty Int’l (May 26, 2016, 12:00 AM), https://www.amnesty.org/en/latest/news/2016/05/amnesty-international-publishes-policy-and-research-on-protection-of-sex-workers-rights.