by Alison Bass
Some prosecutors don’t buy that argument. Nancy O’Malley, the district attorney for Alameda County (which encompasses Oakland and other towns across the bay from San Francisco), says her office prosecutes both labor and sex trafficking cases. Indeed, Alameda County (population, 1.5 million) prosecutes fully 50 percent of all the trafficking cases in California (population, 25 million), and O’Malley is known throughout the state as a woman on a mission. “We’ve been very aggressive about trafficking for a number of years,” says O’Malley, who became Alameda’s district attorney in 2009. “My consistent effort has been to say that if trafficking is not in your community, you’re just not looking.”
Yet even O’Malley acknowledges that most police departments do not take labor trafficking very seriously. “I think law enforcement doesn’t have the tools to look at labor,” she says. “They don’t investigate it as a crime. But we’re investigating it as a crime.”
O’Malley is the first to admit, however, that most of her office’s energies go into combatting the sex trafficking of underage youth, through a program she has dubbed HEAT (Human Exploitation and Trafficking) Watch. Her office is working with a coalition of antitrafficking proponents to further increase penalties and fines against pimps and clients who exploit underage youth, in a measure known as Senate Bill 1388. According to sex worker advocates, most of the lobbying support for this measure has been paid for by Demand Abolition, a group that is aimed at ending the demand for commercial sex and funded largely by Swanee and Helen Hunt, Texas sisters who are heirs to the Hunt oil fortune.
“There are very well-funded groups like the Hunt sisters working with the Justice Department, the FBI, and other law enforcement on an antiprostitution campaign, and [Senate Bill 1388] is just one small piece of that agenda,” says Rachel West, a longtime community organizer with the US PROStitutes Collective (US PROS), a nonprofit that serves mostly streetwalkers. West served on the original San Francisco Task Force on Prostitution in 1996, and her organization is working with Doogan’s group to defeat the bill.
The sex worker advocacy groups recently managed to convince the sponsors of Senate Bill 1388 to remove the provision that would have criminalized clients and made it harder for sex workers to negotiate safe sex. In its current incarnation, however, Senate Bill 1388, like Proposition 35, may still create perverse incentives for law enforcement. In a recent analysis of the bill, the state Senate Committee on Public Safety concluded that the payment of criminal fines under the proposed law “raises the issues of an improper bounty — an incentive for law enforcement agencies to pursue investigations based on financial interest, rather than public safety.”4
O’Malley waves aside such concerns. “The challenge is not inflating numbers or creating incentives. It is getting people to recognize the problem,” she says. If anything, she believes the problem of pimps sexually exploiting underage girls (which she considers synonymous with trafficking) is an under-recognized crisis. “On any given day on International Boulevard in Oakland, you can see kids on the street and traffickers lurking in the background,” she says. “It’s a real problem.”
San Francisco city officials agree that underage prostitution is a problem that demands attention, but they have a different approach to dealing with it. “If you acknowledge that these youth are victims of trafficking, we shouldn’t be treating them as criminals,” says Minouche Kandel, a spokeswoman for the San Francisco Department on the Status of Women, a city agency.
Nonprofit groups that work with sexually exploited youth agree. They say arresting these teenagers simply retraumatizes them and makes them even more distrustful of authority and thus more dependent on pimps. “A lot of [exploited] children have been abused by police, and they don’t feel comfortable with you if you work with law enforcement,” says Ellyn Bell, executive director of the SAGE Project, the oldest antitrafficking organization in the country (founded in 1992). Her organization, which works mostly with underage sex workers, has received funding from private donors, the city of San Francisco, and the U.S. Department of Justice’s Office for Victims of Crime.
Bell says she supports the decriminalization of prostitutes, regardless of their age. “Our goal at SAGE is to provide people with trauma-informed services and options to change their lives, if that’s what they want,” Bell says. “And if they’re not ready to change their lives, we try to give them options to live safer.”
In line with this more prevention-oriented approach, San Francisco police make far fewer arrests for adult or underage prostitution than Alameda County does. “We’re trying to be mindful of not pursuing policies that would harm sex workers,” Kandel says. “Some people feel that all prostitution is by definition violence against women. But if we’re honoring women’s autonomy and adult women are choosing to do this, then we should respect that and make sure they’re not harmed.”
The Legacy of a Corrupt Cop
Maxine Doogan has seen this movie reel before — in her own life. She began doing sex work at age twenty-five in Alaska, as a divorced single mother struggling to make ends meet. She had grown up in Fairbanks, a town in central Alaska, part of a large politically connected family. The Doogans lived in a state where prostitutes, historically, had been a respected part of society (much like in the Old West). Indeed, until the early 1960s, Fairbanks had a fairly visible red-light district, what Alaskans called the “working line.” But once oil was discovered, the federal government began pressuring state officials to rein in the brothels and introduce antiprostitution laws similar to those that had already been implemented in most of the other states. Even then, most Alaskans remained pretty laissez-faire about prostitution.
“There’s a lot of acceptance in Alaska for different types of people and not as much prying into people’s personal lives,” Doogan says. She herself had read The Happy Hooker, by Xaviera Hollander, when she was twelve and liked the famous madam’s adventurous attitude toward sex. So when Doogan found herself divorced and in financial straits, she followed Hollander’s lead and began working in the brothels of Anchorage, which she continued to do until the price of domestic oil plummeted and took Alaska’s economy down with it. In 1988, Doogan came to Seattle and began exploring the sex trade there. But it was the height of Gary Ridgway’s murder spree, and police had also mounted a huge sting of escort agencies around the city. “There was no place to work in Seattle besides the streets, and the streets were really dangerous,” Doogan says.
Having obtained some training in construction at a women’s center in Seattle, she found a job first as a union pile driver and then as a certified welder. In the process, she learned a lot about labor organizing and the power of working collectively. But although her construction job had great health insurance benefits, she still wasn’t earning enough to support herself and her three children. (She was also paying child support to their father, who helped with child care.) So Doogan, who by then had come out as a lesbian, began working as a dominatrix and running an escort service called the Personal Touch (which hired gay men and women doing domination work). Along with dozens of other sex workers, she ended up being arrested in another series of police stings in the early 1990s. But by then she had begun traveling to San Francisco on a regular basis to see whether she wanted to move there.
“I had already started doing some organizing with sex workers in Seattle, and I knew some escorts were working as [police] informants, so I saw the arrests coming,” she says. “And San Francisco had a history with COYOTE.”
Doogan was one of only two sex workers arrested in King County’s massive sting operation who did not plead guilty. “I never worked with any of the informants,” she says. Doogan and her attorneys were thus astounded when, during her first trial on felony charges of promoting or profiting from prostitution, two escorts got up on the witness stand and said they had given her portions of the proceeds from their sex work. “These women all lied on the stand,” she says. “I never received any money from them.”
Th
at trial ended in a hung jury because most of the jury members didn’t find the witnesses credible. Doogan was found guilty after a second trial, but that conviction was overturned on appeal, again because of the questionable testimony given by the same female witnesses. Rather than undergo a third trial, which Doogan couldn’t afford — “those trials cost me $10,000 a piece” — she agreed to plead no contest to the misdemeanor charge of attempting to promote prostitution. She spent twenty days in jail and another year or two on probation.
“There was this one detective who had wrangled these witnesses to testify against me, and he was really coming after me,” Doogan recalls. “Even after I pled, he kept coming after me with probation violations. At one point, my attorneys asked me, ‘Why does this guy hate you so much?’ ”
Ten years later, Doogan finally learned the answer to that question. In 2004, she got a call from an officer with the Seattle vice squad. They were investigating Dan Ring, the King County sheriff’s vice detective who had been on her case, and they wanted to talk to her about potential crimes Ring had been involved in, such as theft, drug distribution, and sleeping with sex workers who were informants on some of his escort sting operations. In 2005, the Seattle Post-Intelligencer published a three-day series that revealed numerous illegal activities Ring had been involved in, according to a three-and-a-half year investigation by the FBI, the King County sheriff’s office, and Seattle police.5
As the Seattle newspaper reported, Ring had had sex with two of the women who were key witnesses in the cases against Doogan and other escort service operators. The King County prosecutor was reviewing those cases, and Ring’s alleged misconduct, some attorneys said, could result in overturned convictions and compensation for court costs.6 County prosecutors had charged Ring with a number of offenses, but on the eve of his trial in 2005, the detective reached a lucrative settlement with the King County Sheriff’s Office, granting him $10,000, a $3,500-a- month pension, and payment of nearly $200,000 in legal fees. In return, Ring agreed to retire as a cop.7
Doogan suspects that Ring got a good deal because the sheriff’s office didn’t want the bad publicity from the public trial of a corrupt cop. “He was a big whoremonger — he would threaten to arrest women for prostitution and then end up dating them,” Doogan says. “Here was the police who are supposed to be your stopgap for safety, and he was harassing the women he’s supposed to protect. It really exposed for me the kind of corruption that goes on in vice squads across America.”
The King County prosecutor who was reviewing the cases ultimately came up with a list of cases that had been tainted by Ring’s misconduct, and it included Doogan’s case, according to Lewis Kamb, one of the reporters who wrote the Seattle Post-Intelligencer series. But when Doogan filed an appeal to vacate her conviction, the appeal was rejected on the grounds that she had taken a plea deal and thus had waived her right to having the conviction overturned. None of the other tainted cases were contested, and Ring got off scot-free. The last Kamb knew, Ring was still living with the stripper who had lied on the witness stand in Doogan’s case. Indeed, she is listed as the beneficiary on Ring’s pension from the King County Sheriff’s Office, Kamb says.
A Constitutional Challenge
Doogan’s personal experience is not the only reason she is so intent on mounting a constitutional challenge to laws that criminalize prostitution. She has seen firsthand how easily external funding can sway the public’s mind on ballot measures. The success of Proposition 35 had a lot to do with the millions of dollars that Chris Kelly, the former Facebook executive and a 2010 Democratic candidate for attorney general, plowed into efforts to make sure the antitrafficking measure passed.8 Kelly, who lost in 2010, has political ambitions, but the sex workers’ rights groups hadn’t seen him coming, and they were badly outspent. Many Californians agree that the state’s “proposition way” of doing government is not a truly representative approach. “It’s about who has the most money and screams the loudest,” says Bell from the SAGE Project. “That’s who wins these ballot measures.”
After Proposition 35 passed, Doogan and other sex workers drew some solace from watching their colleagues to the north take the court battle over Canada’s prostitution laws to the highest court of the land. Canada’s Supreme Court ruling in December 2013 cemented Doogan’s decision to mount a court challenge stateside. “We figured it might cost $100,000 for a lawsuit that brings relief to people throughout the country, as opposed to bringing another ballot measure in California, which would cost at least $300,000,” Doogan says.
Compared with sex workers in Canada, however, Doogan and her band are operating under a distinct disadvantage: they haven’t been able to find a law professor, like Alan Young, willing to take on the case pro bono. While they are working with a private attorney who is familiar with the country’s prostitution laws, they will have to pay him the going rate for his services. The northern California chapter of the American Liberties Civil Union (ACLU) is considering mounting its own constitutional challenge to the prostitution laws. If Doogan’s group files first, the ACLU may come in with an amicus brief.
The northern California ACLU chapter has intervened in other issues involving sex workers. Proposition 35, for example, was originally written to require traffickers to register as sex offenders and inform police about their online activity. Right after the law was passed in 2012, the ACLU requested a restraining order against that particular provision, arguing that it would have a chilling effect on free speech. A district judge in the northern California circuit court agreed and issued a restraining order so that part of the law could not go into effect until a formal challenge was heard in the courts.
A constitutional challenge to U.S. prostitution laws must clear yet another hurdle. While Americans have a clear right to free speech, the U.S. Constitution does not confer the same right to safety and security that is spelled out in Canada’s charter. It was that basic right that Canada’s Supreme Court cited in overturning that country’s prostitution laws.
“The Canadian Charter of Rights and Freedoms was written in 1982, and the American Constitution was written by a bunch of slave owners back in the 1770s,” Doogan says. “[The Canadian plaintiffs] were able to bring their case based on the issue of safety. We will not be able to make a challenge based on safety because safety is not a value in our U.S. Constitution.”
In March 2015, Doogan’s group filed a lawsuit in the U.S. District Court challenging Section 647(b) of the California Penal Code, which prohibits compensation for a lewd sex act, on the grounds that it violates people’s right to privacy and equal protections under the law. The lawsuit argues that laws making consensual commercial sexual activity between adults illegal are unconstitutional because they infringe on privacy rights protected by the 14th Amendment. There is legal precedence for such an argument. In 2003, in the Lawrence vs Texas decision, the U.S. Supreme Court held that a Texas law classifying consensual adult homosexual intercourse as illegal sodomy violated the privacy and liberty rights of adults, under the 14th Amendment, to engage in private, intimate conduct.
Doogan and others believe that ruling could be extended to prostitution. “The Lawrence ruling invalidated similar laws throughout the United States that criminalized sodomy between consenting adults acting in private,” says Michael Chase, a retired high-tech executive who now devotes his time to human rights issues in California. “It was a great decision because it allows people to live their sexual lives without governmental intervention.”
The lawsuit that the ESPLER Project filed also argues that the state’s law against prostitution denies individuals the right to free speech and the right to choose how to earn a living. The lawsuit further alleges that the enforcement of antiprostitution laws discourages safe sex because the possession of condoms is used as evidence by prosecutors. Like the Canadian case, the California lawsuit will have multiple plaintiffs, including several sex workers and a client. As in Canada, the lawsuit also argues that criminalization
, particularly the recent spate of antitrafficking laws in the United States, has caused all sorts of human rights violations. “One of the issues we have with antitrafficking laws is that they result in the arrest of sex workers themselves,” says Chase. “The definition of trafficking is so loose that women who are helping each other be safe are considered to be trafficking.”
What got Chase involved in this cause was reading the literature of Proposition 35 supporters. “I was personally appalled by the way they attempted to infantilize adult women,” he says. “It reminded me of the civil rights movement in the South and the way they referred to adult men as boys.” Chase says he’s known in northern California’s human rights circles “as the straight guy who understands transgender and sex work issues.”
As of this writing, the ACLU had still not decided whether it will file a brief in support of Doogan’s group. And that doesn’t bode well for the sex workers’ rights movement, in large part because Doogan and her group are having trouble rallying other sex workers behind their legal challenge and raising money. “Most of this community thinks they’re at low risk of being arrested,” Doogan says. “They don’t really understand this is a full-on war that has been declared on us by the antitrafficking movement.”
Some sex workers’ rights groups do avow support. Rachel West, who remains an organizer with US PROS, says her street-based group endorses Doogan’s constitutional challenge and will help support it financially. West says her group has worked with the ESPLER Project on a number of recent battles, including a successful fight last year to get the state to pay workers’ compensation for sex workers who have been raped on the job.
But the battle is far from over. There are times when seasoned advocates such as West and Doogan feel as though they are alone on a beach facing a tsunami. West says US PROS has been fighting for decriminalization since 1980, but it is constantly struggling to find funding to survive and help individual street workers with their legal troubles.
