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Episode 1: Prosecution

This episode focuses on how prosecution of crimes affects how we understand and are able to communicate about sexuality.

Since Washtenaw County, Michigan, is having an interesting primary election this August 4, including candidate for Washtenaw County Prosecutor, I am using this episode to focus on how prosecution of crimes affects how we understand and are able to communicate about sexuality.

(Transcript)

Hi, I’m Kenneth, and this is the Unspeakable Vice Podcast, where we talk about talking about sex.  Sex is a dirty word, a taboo, something that just isn’t talked about.  We’re about to dig into why.

This is our first episode, which makes it pretty special, but it is special for another reason too. In Michigan, we have a Primary election is coming up in a couple weeks, on August 4, and it is especially interesting because here in Washtenaw County we have an open seat for the County Prosecutor.  So, I wanted to take an opportunity to talk a little about the intersection between how we talk about sex and prosecution.

There is actually a big overlap here.  There are laws that make certain sexual behaviors illegal, of course. There are also some laws that even make talking about sex illegal, but we’ll save that discussion for another episode.

A warning

Before I get into it, it is probably a good idea to give you a heads-up about some of the content in this episode. While I hope it’s already obvious that we are going to bring up sex and sexuality, today’s topics get into a little more difficult territory. Some of the examples and situations here are going to involve sexual abuse, exploitation, and other criminal activity. So if this is something that may be difficult for you to hear, please take care of yourself as you need to. Now, I promise I won’t go into any details about these topics, but they will come up.

Are prostitutes lawbreakers or trafficking victims?

So let me start with some examples. After a quick Internet search, I found an article, “Are prostitutes lawbreakers or trafficking victims?” (Bridge, June 9, 2016). In this story, a woman was in court because she failed a drug test, but more broadly she was involved in prostitution. She was fully expecting to go to jail, because she knew she had committed multiple crimes. But something interesting happened, involving a lawyer from the Human Trafficking Clinic at the University of Michigan Law School. This lawyer decided that the prostitute should not be looked at as a criminal. Rather, she was coerced or forced into the criminal behavior by her drug dealer, who wanted to get paid for drugs given to her.

This is kind of a progressive position, isn’t it? Even though she broke the law by involving herself in prostitution, this lawyer—and ultimately the court—thought that she was actually a victim.

This Human Trafficking Clinic is actually pretty unique. At the time it was the only such clinic in Michigan, and this court was apparently the only court that was looking at prostitution cases this way. This is actually kind of concerning, because that means every other court is punishing prostitutes as criminals no matter what. But in addition to that, it’s also concerning that the Clinic seems to be looking for someone else to blame for this crime being committed.

I want to quote from one of the lawyers involved in the case:

The most powerful message we can send is who we choose to prosecute.

Elizabeth Campbell, a clinical assistant professor at the University of Michigan Law School’s Human Trafficking Clinic, as quoted by Bridge, June 9, 2016

The question is not whether or not to prosecute. We are not asking how should we respond to this activity. We are not asking how severe is it, who was hurt and to what extent. In this particular case—and pretty much when it comes to sex in the courts period—those questions are glossed over, not even considered. There is an implicit decision that has already been made about how terrible and unacceptable prostitution is, regardless of the circumstances.

So let me explain what I’m saying here. Prostitution is a crime in Michigan. We could ask whether or not it should be; that’s a valid question. But that’s not what I’m getting at here. I’m interested in what is being said about sexuality through the way the Clinic and the court respond to this case.

What is being communicated in this case?

There is an implicit understanding here that this sex act is horrible. And it may be; I don’t know the details. But we are not able to even ask the question. It’s already been decided. The assumption is that nobody in their right mind—no respectable citizen—would trade sex for money. So anyone who does must either be a terrible criminal or a victim of a terrible criminal. It is inconceivable that someone would reasonably choose to engage in this act, so either they are a callous criminal themselves, or they were forced into the act by someone else.

There is another implication here. Someone must be prosecuted. Someone must be punished. If not the prostitute herself, than we must prosecute the drug dealer that was asking her to pay her bill. He must have forced her into it.

Again, I don’t know the details of the situation this woman was in. Maybe she actually was forced. My point is simply that we are not invited to ask. Or maybe it doesn’t even matter. Because sex is that scary, sex is just something we can’t interrogate because it is too horrible to tolerate.


Federal “Human Trafficking” in Michigan

Let me go to another example. I thought I would compare what kinds of crimes are prosecuted under the label of “human trafficking.” This label already is kind of interesting, because people almost always equate it with sex. Human trafficking, in its broad definition, can refer to any situation where someone is taken and transported against their will. Usually it is associated with forced labor.

But in practice, and what makes it so scary and treated so seriously, people almost universally assume that victims of human trafficking are being forced into sex. Sometimes it is prostitution, sometimes it is forced marriages, or it might be something else. Then, as a consequence, lawmakers and prosecutors assume that any sexual activity that is criminal must be “human trafficking.” This could even be the case above, where the person involved in prostitution wasn’t kidnapped per se, and she wasn’t taken anywhere (she wasn’t trafficked). She was simply engaged in sex that happened to be criminal.

Anyway, I started to search for other recent examples of human trafficking in Michigan, and at first I couldn’t even find any. Actually I thought I was doing something wrong using the database I was searching. Finally I realized that there actually were none! The database covered all federal cases from 2000 to 2020, or so it claimed. Maybe the database is incomplete, but the most recent case in Michigan was from 2014. Six years ago. So, having found it, I looked at what was going on. According to what I found, it actually was a serious case with clearly alleged kidnapping of people and forcing them into prostitution. Serious stuff. But, obviously, this doesn’t happen very often if there were no cases since 2014, and only about one a year on average up until then. So I had to laugh a little when I read this quote from the attorney’s press release:

We hope that cases like this one will raise awareness that sex traffickers are exploiting victims in hotels and truck stops in our communities.

 U.S. Attorney Barbara L. McQuade, in a 2014 press release about US v Smith, one of only 15 federal cases involving human trafficking in Michigan since 2000.

There’s probably something to be questioned about the fact that the attorney is even making press releases about a case they’re working on, but never mind that. This attorney wants to “raise awareness” about a problem that I actually had a hard time finding when I was searching for it. But what is actually being communicated here? Is the attorney legitimately trying to “raise awareness?” Or are they using hyperbole and exaggeration to make the problem seem bigger, scarier, and more serious than it really is? Even though the press release is about one case, one person who committed a serious crime, the quotation claims that “sex traffickers,” plural, are exploiting victims in multiple places in our communities. It sounds to me like this press release is designed to scare people. It is not intended to be factual, certainly not neutral. But of course, what do you expect? We are talking about sex. So of course it’s scary.

This is why talking about sex and sexuality is so hard. Even the people who are supposed to be experts are giving us information that is deliberately misleading in order to make sex seem even scarier than it already is. Now I’m not trying to diminish the seriousness of this crime that was committed over six years ago, but I would like to be able to have an open, honest conversation about it. But when we have prosecutors exaggerating the seriousness, using terms like “human trafficking” to refer to anything involving sex, it gets to be really hard to have a conversation at all.


State “Human Trafficking” in Michigan

So, the feds are not the only ones who prosecute crimes. I also looked at state prosecutions related to “human trafficking.” It turns out that Michigan only adopted laws referring specifically to human trafficking in 2011. So, since 2011, there were nine prosecutions that the state Attorney General office has been bragging about. I took a look at one of these at random, and the person being prosecuted was actually involved in prostitution herself. Accused of running a prostitution ring, she was alleged to have taken money from other people involved in prostitution. In fact, looking at all nine of the cases, at least four of them involved the crime of accepting money from a prostitute. And two of the cases were charged against people who were prostitutes themselves.

Now, some of these cases were quite serious and even violent. But look at how they are all lumped together under the category of “human trafficking.” Even people who work as prostitutes themselves are considered guilty of human trafficking when they have financial ties to other people working as prostitutes.

Questions to ask

We could ask whether these specifics should be illegal or not. In particular, I wonder if it makes sense to make it a crime to accept money from a prostitute. This was what happened in the very first case we looked at, where someone worked as a prostitute to pay her drug dealer. And so the drug dealer was guilty of human trafficking. The very same logic could be applied to a landlord, or a phone company, or the city that collects property taxes. They are all accepting money, and if the person they accept it from is working as a prostitute, that means they all could be guilty of human trafficking.

But beyond asking whether it should be illegal, let’s consider the consequences. Of course, not all these people are held criminally responsible as sex traffickers. Why not? Because prosecutors have complete discretion over whether or not to file criminal charges. Prosecutors get to pick and choose who they charge, and what crimes to charge them with.

Think about how dangerous this is, think about how much power this gives the prosecutor. Especially when laws are so broad and so vague, almost anyone could be charged, but too often prosecutors pick certain classes of people to go after. In the very first case we looked at, it was the drug dealer: someone who was deemed undesirable for reasons that had nothing to do with sex. In other cases, as we know all too well these days, prosecutors target people who are black, or who are not wealthy enough, or who are queer. Consequently, these communities are disproportionately impacted by the criminal justice system, and they are disadvantaged even further. In effect, it basically becomes criminal to be black, or to be poor, or to be queer.

In fact, in another state, there was a law against human trafficking that was actually applied exclusively to black trans women who worked as prostitutes. Let’s hope that’s not what the legislators had in mind when they strengthened the penalties against human trafficking.

So you can see how important it is to have a prosecutor who stands for the right things. Who works not only to keep us safe from crime, but also to keep us safe from the criminal justice system.

Restorative Justice

One final thought. Another organization I work with, Friends of Restorative Justice, is working on a video series to explore an idea called restorative justice. These videos are designed to invite the question of how we should respond to crime. Some of the cases we talked about today are complicated, and it is not clear who was the victim and who was the perpetrator. There was harm, yes, but who should be blamed? Who should be punished? Restorative justice asks the questions differently. What harm was done? How can it be healed? If this idea interests you, I recommend you take a look at what they are doing.

Conclusion

So, this episode asked a lot of questions. What does the legal system say about sex? How do we respond to crimes that involve sex? How are important questions about sexual harm being silenced because of the way our criminal justice system operates?

For those of you in Washtenaw County, I encourage you to think about these questions as you cast your ballot for County Prosecutor on August 4. And wherever you are, if there is a primary election in your area, be sure to vote!

Thanks for listening.

By Kenneth

Kenneth is a graduate student at Wayne State University studying sociology. He is also the host/producer of The Unspeakable Vice Podcast and author of "Lessons Learned: Life-Altering Experiences of Incarceration."

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