On Monday Steven Brown, Executive Director of the Rhode Island ACLU, presented a history of the state’s prostitution laws before a State House Commission examining the state’s laws on sex work.

See also: The History of Sex Work Law in Rhode Island

Brown prefaced his comments with three points:

“First, the ACLU has long opposed criminalizing consensual sexual activity among consenting adults. So while I hope to present a largely fact based presentation today, I think you ought to be aware that these facts are being viewed by us through this lens of supporting decriminalization. There are at least three major reasons that the ACLU has had this position for so many years.

“There is the clear discriminatory impact that these laws have had on women in terms of their enforcement. There is what we consider to be a very broad invasion of personal privacy when we’re talking about out consensual sexual activity in private, and concerns about the enforcement techniques that have to be used by law enforcement precisely because it is a consensual private activity. It requires police to engage in various types of conduct – that we think are inappropriate – in order to catch people for engaging in consensual activity.

“Second, my focus is on Rhode Island, not on the national picture. I would note that two years ago, the national ACLU issued a very thorough, detailed report entitled Is Sex Work Decriminalization the Answer? What the research tells us, and it reviewed over 80 empirical studies that had been done analyzing the issues and the impacts of both criminalization and decriminalization of prostitution.

“I will very briefly read the summary of the report.

“In sum, the research points to negative impacts of criminalization on the physical safety, health, and financial well-being of sex workers, with repercussions for clients seeking consensual sex between adults. These findings are only amplified when specifically examining the impact of the criminalization of sex work on marginalized communities, including LGBTQ people, people of color, and immigrants. People without adequate financial resources, such as those living in poverty, are also more harmed by the criminalization of sex work.

“Overall, the evidence suggests that going from less to more prohibitive laws on adult consensual sex work is damaging to sex workers and appears to have little impact on curbing trafficking or other crimes. Conversely, as laws move down the continuum from more to less prohibitive or restrictive on consensual sex work, workers experience less harm, and there is no strong evidence to indicate negative impacts on crime, health, or safety.”

“I will note that a number of the studies in that report reflect analysis of what happened in Rhode Island between 1980 and 2009 when the so-called loophole existed in the state, and there were some really major findings in terms of the decrease in STDs and sexual assault. Those are certainly worth looking at, but I claim no expertise on those particular issues,” said Brown.

“The third the third and final point I want to make before I get into the bulk of my presentation is about terminology. I’ll often be using the term prostitution instead of sex work, simply because that is what the laws and the court cases refer to. I will more often than not be referring to women, not because these laws affect only women, but because women have and continue to bear the brunt of the enforcement of prostitution laws.”

In the course of his presentation Brown quoted some brief excerpts from court opinions. In doing so he got rid of citations to statutes but didn’t change the substance in any way. The quotes therefore may not be verbatim  – they have been edited for clarity. You can watch Brown’s presentation here:

Brown continued:

“Any discussion of the history of prostitution laws in Rhode Island has to start with the case of COYOTE v. Roberts which was a lawsuit filed in 1976 by the national and state organization COYOTE as a challenge the constitutionality of the state’s prostitution law as it existed at that time. That statute made it a felony not only to engage in prostitution, but also to engage in any other lewd or indecent act. There were Rhode Island Supreme Court decisions looking at another statute that interpreted lewd or indecent act to mean something as broad as one could ever imagine it to mean. The Rhode Island Supreme Court interpreted it to encompass all extramarital sexual intercourse, as well as any “unnatural” form of copulation, regardless of marital status. It could not have been broader – but it was on the books. The Rhode Island Supreme Court had upheld the law’s constitutionality in a number of court decisions and that was also the court’s interpretation of the prostitution law, which banned not only prostitution, but lewd or indecent acts.

“Let me summarize the court’s explanation of what the statute covered at the time.

“The court said criminal sanctions could be imposed without regard to whether the sexual activity was a commercial venture undertaken for financial gain, or whether the activity was undertaken in private with the full consent of two adult parties. The statute also banned what the court called preliminary or preparatory activities for prostitution. These were felonies such as loitering to solicit, transport, aiding or abetting a person to commit an indecent act and similar things. These acts were all felonies without regard to the public nature of the activity, the mutuality of consent or the financial motivation of the participants. 

The challenge to the law was on two major constitutional grounds. One that the act was over broad and impermissibly infringed on constitutionally protected rights of privacy and association. Importantly, plaintiffs did not challenge the public aspects of the ban – that is, they did not challenge loitering to solicit or other public prostitution offenses. Instead they focused on the constitutional protection of privacy that the solicitation for the act, as long as it occurred in private, was no business of the government. The second major aspect of the challenge was an “equal protection of the laws” challenge. They argued that the statute was discriminatorily enforced in that, even though the statute on its face was gender neutral, women were almost exclusively arrested for violating it and the court case presented a lot of evidence to that effect.”

Here are a few of the facts that were presented to the court:

First the court noted that the police officer in Providence who was in charge of the prostitution arrest testified that from 1959 through 1975, right before the lawsuit was filed, prosecution for violation of the prostitution statute was primarily focused on females. Though males were arrested, they were not prosecuted, but were rather used as witnesses to prove the crime against the female. That was the testimony from the Providence Police Department itself. 

Then there were some statistics presented to the court. Between 1974 and 1977, 846 women were arrested in charged with prostitution. In the same period, 251 men were arrested, but the police were only able to provide evidence that three of those males were actually charged with a crime. The police also acknowledged that it used a total of 55 male undercover officers for prostitution investigations during the 1974 to 1977 period while employing no female undercover officers at all in 1974 and 1975 and four female officers in 1976 and 1977. It was only with the filing of the lawsuit that the police department changed its practices in that regard.

Fast forward a few years. Discoveries are being taken, depositions are being taken and the case is still before the court. And while the court was preparing its decision, the General Assembly amended the law. This was in 1980. The General Assembly acted for two reasons. First was the obvious one: There was this lawsuit hanging over the state’s head challenging the constitutionality of the prostitution law. In addition there was a large public outcry in the West End of Providence where there was apparently some very overt, hard to miss street walking taking place out in public, and it generated a great deal of consternation in the community. It prompted public officials and politicians to get involved and try to deal with it and the solution they came up with was to streamline the legislation in a few ways.

The first way was to not make it a felony that required a lot of leg and case work in Superior Court. Instead, they decided to make the crime a petty misdemeanor which would allow for speedier convictions, not necessitate the right for a jury trial, and also limit the appeals that individuals could bring. They added the phrase “for pecuniary gain” into the statute to specifically have it address commercial sexual activity and they deleted the prohibition against committing the act of prostitution itself or any other indecent act. As a result of those changes in the law as well as a change in Providence’s enforcement of the law, all the parties agreed to dismiss the suit as moot in 1980.

Now I want to quote a few sentences from the court’s decision in which it was acknowledging dismissal of the case, because the RI ACLU has always pushed back on this notion that there was an unintentional loophole in the law that nobody knew about that needed to be addressed. Here are some quotes from the court decision in 1980 in which the court is looking at the new statute that the General Assembly had just enacted. From the decision:

“The statute is now directed at suppressing specifically that type of sexual activity, commonly regarded as prostitution, more significant for present purposes the amendments appear to have decriminalized the sexual act itself, even when undertaken for remuneration. Thus, it appears to the court that the statute now outlaws only certain preliminary or preparatory activities. And then only when pecuniary gain is somehow involved. The core of plaintiff’s claim was that the state could not constitutionally bar consenting adults from engaging in purely private sexual activity, irrespective of whether the motivation of one of the participants was economic. As the court reads these new statutes, they do not purport to outlaw that activity.” https://law.justia.com/cases/federal/district-courts/FSupp/502/1342/1512140/

“I don’t think it could have been clearer at the time what the General Assembly had done and what the impact of it was. It was there, in black and white, in the federal court decision.

“Fast forward 18 years. In 1998, the Rhode Island Supreme court issued a decision that affirmed this clear reading of the statute that the federal court had made in 1980. This case involved a person who lured women into posing for him, sought to videotape them and have sex with them with the alleged goal of creating pornographic movies. This person was charged with a number of violations of the law, including a violation of the soliciting for prostitution law. The Rhode Island Supreme Court said, ‘We believe that the legislature enacted this statute primarily to bar prostitutes from hawking their wares in public. Whether this is done by strutting up and down a public street, or by calling out the passers by from the shadowed stoop of a privately owned building, Because the statute is directed at the public solicitation of prostitution its reach simply does not extend to this activity when it occurs within the confines of private residences. Although other sections of the penal code prescribed the defendant’s challenged conduct, this statute does not.’

“This was in 1998. This statute could not be used to address private consensual sexual activity and since Rhode Island had not gone the way of Rome, nobody seemed to care or feel there was a problem with the lack of a broader statute.

“Then, in 2003, after there was a lot of publicity about an attorney getting a number of prostitution charges dismissed on the grounds that there was no basis for them under the 1980 statute, because the conduct had not occurred in public, and it was purely private and purely consensual. At about the same time the City of Providence began examining the rise of the so-called Asian spas in the city and began conducting raids on those spas. The rationale for them at the time was that sex trafficking was occurring in the spas and that some, if not all of the people engaged in prostitution at these spas were the victims of sex trafficking.

“That, generally is what they hung their hat on throughout what became five years of a legislative battle here in the General Assembly to reinstate the criminalization of indoor prostitution.

“One thing that we pointed out at the time, when Providence first introduced the bill in 2005, was that there was nothing that prevented them from going after sex traffickers. While it was true that indoor prostitution itself had been decriminalized, there were a handful of laws that remained on the books as felonies that would apply to individuals who were engaged in trafficking. There were laws against pandering, harboring, and deriving support or maintenance from prostitution – all felonies that remained on the books, not withstanding the changes to the 1980 law and all of which could have been used to prosecute individuals who were in fact engaged in trafficking. The RI ACLU had argued from the beginning that there was not a legitimate rationale for reinstating laws against indoor private activity.

“It’s also worth noting that at the time there wasn’t a problem of police arresting people for prostitution. We looked at the statistics and if you look at the Department of Corrections‘ ACI population in 2008 right before the law passed the number one criminal offense that women were in the ACI for, either pre-trial or after, was prostitution. That was the number one offense. So there certainly was not a problem of individuals not getting arrested for prostitution even without changing the 1980 law.

“We were also troubled by a few other things leading up to the passage of the law and the city’s attempt to address the problem of prostitution. One was an argument that some officials made that they were arresting the prostitutes, the alleged victims of the sex trafficking, as a tool to force their cooperation with police – that is, to get them to give up information about who the traffickers were. We found that morally reprehensible and an extremely cruel policy. Another very disturbing aspect of the raids is that the city began collaborating with ICE [Immigration and Customs Enforcement] and were contacting ICE when they had immigrant women who were being charged with this offense. A number of them were handed over to ICE and often ended up being deported and detained for months longer than they would have been if they had actually been convicted of the crime of prostitution. Not withstanding all the concerns that the ACLU and a number of other organizations raised, the General Assembly did pass the law in 2009.

“There are a few aspects of the law that largely went unnoticed that I think are worth mentioning. First, with all this talk of sex trafficking and the need to protect women – the law as it passed actually provided very limited protection for women who were supposedly the victims of trafficking. What it did was it allow accused women to establish an affirmative defense that they had been coerced into engaging in prostitution. That’s a very heavy and unfair burden to place on them. It’s hard to do. I think it’s also hard just as a practical matter for anybody to snitch on those individuals, traffickers, that may have held their lives in their hands, if they were in fact victims of trafficking – but the burden was on them. That meant they would get arrested, they might get detained at the ACI, go to trial and then, at trial, present as their defense that they shouldn’t be convicted because they were victims of human trafficking. That’s a very difficult road to ask anybody to take, much less individuals who are allegedly victims of sex trafficking.

“A second thing included in the bill that became law was a provision allowing for the seizure and forfeiture of any property that a woman owned that police claimed derived from the proceeds of prostitution. As a result, under the very low burden that exists under the state’s forfeiture laws, women could lose what little money or property they had as a result of an arrest and conviction. If these are people trying to turn their lives around, this obviously makes it much more difficult. And a year later the legislature amended another law imposing special court fees specifically on individuals who plead to or are convicted of prostitution offenses. It is a separate statute focused specifically on prostitution.

“Now I want to move forward and look at the past five or six years and see where we are and what’s happened. Every so often a prostitution street sting is conducted by a local law enforcement agency. The sting receives some media attention but ultimately it has no lasting effect other than, in our view, embarrassing and penalizing consenting adults who’ve been engaged in sexual conduct for a fee and by humiliating and giving arrest records to these individuals in the name of helping them. We think the laws major effect is to make the lives of sex workers more difficult and dangerous. At about the same frequency police will raid massage parlors or a strip club like the Foxy Lady and claim to have acted in an effort to address the problem of sex trafficking.

“I don’t want to suggest it anyway that this never happens, but all too often there is this conflation of sex trafficking with prostitution that is simply inexcusable because that’s not what ends up being the result of these raids. It is the women who get charged, who get arrested and who get convicted and there are no human sex traffickers to be found anywhere. I want to give just two examples because I think they highlight these points.

“In 2016, the Cranston Police Department conducted a sting operation and they issued a news release, announcing the that, in the police department’s words, it was “aimed at targeting human traffickers, specifically those victimizing juveniles” and according to their news release, no fewer than eight law enforcement agencies were involved in the operation.

“According to the news report, however, the sting led to one arrest for trafficking, one arrest for pandering, 14 arrests of Johns for procuring sexual conduct and 14 arrests of other people for engaging in prostitution. That was the net result of that sting.

“The second one I want to mention, which got a lot of public attention at the time, but I think is important to remember the facts behind it, is the raid and the closing of the Foxy Lady in 2018. I want to highlight it because I think it exemplifies what is wrong with these laws and with their enforcement. Although the Foxy Lady had been providing adult entertainment in Providence for decades, it had never been called before the Providence Board of Licenses until a police sting there resulted in three women being charged with soliciting for prostitution.

“The board then took the extraordinary step of permanently revoking the Foxy Lady’s entertainment and liquor licenses, and throwing more than 200 people out of work just a week before Christmas. It did so, concluding without any direct evidence, that club owners had “created an environment for tolerating prostitution.” I want you listen that carefully and note that the owners were not accused of promoting prostitution at the establishment. They weren’t even accused of tolerating prostitution there. Their offense was that they had created an environment for tolerating prostitution, whatever that means. The unfairness is really compounded when you learn that the sting operation at the club was initiated because a female employee a few weeks earlier had been the victim of a sexual assault by a customer and the club had sought the police department’s help. As a result of the sting it was the women who bore the brunt of the punishment.

“These three women faced criminal charges. They had their names and their photos splashed across the media. And dozens more women were suddenly out of work and without a paycheck – all of this is being done under the guise of protecting women. It actually gets worse. This permanent closure of the Fox Lady was overturned administratively – but the true outrage was in comparing the permanent closure that the Board of Licenses issued with the penalties they’d imposed against other licensees who had much more serious trouble with the law. We did some checking. We went back a couple years and looked at the Board of Licenses’ actions in issuing punishment for other night clubs that had engaged in improper activities and these included such things as a club where a bouncer had stabbed a patron, and a instance where a patron shot a gun into the ceiling and the establishment deleted the video surveillance.

“In both of those instances, the punishment was something like two weeks suspended license. So when you look at all the facts surrounding those particular incidents, it exemplifies some of the problems with trying to enforce these consensual laws.

“It should not come as a surprise that the prostitution laws continue to be discriminatorily enforced. We filed an open records request with the City of Providence to obtain their prostitution arrest data for 2016 to 2019. They claimed to have arrested 79 people on prostitution related charges. 77 of them were for engaging in prostitution, only two of them for solicitation. 94% of the people arrested were women.

“We filed a similar request for Woonsocket and it was similar – 89% who were arrested were women. And we also found something extremely disturbing when we got the Woonsocket arrest reports. There were a handful of them where the police officer in the sting described in their narrative of the arrest how the alleged prostitute had asked them to squeeze or touch their breasts, just to prove that they weren’t a police officer and the police officer obliged. To think that we are giving the police the power and authority to arrest people and in order to do that, to engage in activity like that, should be absolutely condemned by everybody as another reason why this type of ban on consensual activity is completely inappropriate.

“Finally, we we took a look at the uniform crime reports for Rhode Island because we also wanted to take a look at race issues. We know that throughout the criminal justice system there are problems of race – and prostitution is no different. You won’t be surprised by the statistics we found. Out of all the arrests between 2015 and 2018 for engaging in prostitution, according to the uniform crime reports, almost 25% of the people arrested were Black. 2019 was actually the only year we found where the percentage of Black people arrested for prostitution was much lower, but if you combined it with the Asians who were charged with prostitution offenses it was around 31% of people arrested.

“So that is the history of prostitution in Rhode Island.I think it paints a pretty clear, consistent and persistent picture and one that the ACLU thinks really needs to be addressed. I want to end with offering some of our suggestions for recommendations that we hope this commission will consider. I will note that if you look at the national ACLU report, they also have a number of big picture recommendations that I encourage you to look at. Mine are much more specific.

“First as politically infeasible as it might seem, we would urge for the decriminalization of prostitution or, as an alternative, we would at least argue, based based on the way the law has been implemented and enforced, that this commission consider recommending going back to the pre 2009 status quo where truly private activity is not criminalized and only the public display and conduct related to prostitution is criminalized. That would be a significant step forward, though we recognize that either of those options may take a little time and will not occur this year.

“Smaller recommendations:

• Repeal the provisions that were added to the 2009 law that allows the police to subject a sex worker’s property and money to forfeiture proceedings.
• Repeal the statute that requires those convicted of prostitution to pay extra court costs.
• Bar police from contacting immigration officials about women they have arrested for prostitution.
• Remove the stigmatizing statutory requirement that any woman convicted of prostitution have an HIV test performed on them.
• Repeal the statute that imposes additional penalties for engaging in prostitution within 300 yards of a school. I don’t think this activity is occurring at 11 o’clock in the morning. I’m not quite sure why a law like that is on the books, but it is.
• Once a woman has claimed she is a victim of coercion or trafficking, the burden of proof on the police, not the woman, in order to obtain a conviction.
• Enact legislation that’s been introduced this year and last year by Representative Henries to make very clear that police officers cannot engage in consensual sex with anybody who is in their custody.
• And finally, consider the use of non incarceration penalties in the statute and eliminate all the fees, court fees, and costs that are imposed on individuals who do end up getting convicted or plead to the crime of prostitution while it continues to be a crime.

“In conclusion, the RI ACLU believes the General Assembly made a terrible mistake in 2009 in passing this harsh law. All it has done is once again make criminals out of people engaging in consensual sexual activity and put sex workers in more, not less danger. We think it is time for a fresh review of that law and the adverse consequences that have flowed from it. And we hope that the commission will take action to address these inequities.”