San Francisco Task Force on Prostitution
Final Report 1996
I. Law and Law Enforcement
Most laws against prostitution activities are written by the State Legislature.
These are the misdemeanors and felonies most used against alleged prostitutes.
The penalties include sentences of up to six months in jail for misdemeanors and
state prison terms of 16 months to eight years for felonies. Because these laws
were written in Sacramento, San Francisco does not have the power unilaterally
to change them. Because of these same laws, the City may not unilaterally legalize
or decriminalize prostitution.
The San Francisco Municipal Police Code also contains some ordinances against
prostitution. Many of these duplicate state laws. Others are patently vague and
archaically written. The City Attorney has concluded that most of the San Francisco
ordinances are unconstitutional and should be repealed. 8
Nevertheless, these ordinances occasionally are used to arrest suspected prostitutes,
though they are usually discharged before they ever make it to court.9
The reality is that enforcement and prosecution of these laws merely creates a
revolving door in the criminal justice system.
The San Francisco Police Department does not consistently enforce laws against
any sex workers except the most visible, those working on the street, and those
most vulnerable, including African American, transgender, and immigrant women.10
Most people arrested spend no more than a weekend in jail before being released.
Though enforcement may increase, there is no evidence that it does any more than
force street workers to move from one place to the next.11
The Task Force concluded that prosecution of prostitution has exacerbated problems
in the industry including violence and chemical dependency, while enforcement
further marginalizes prostitutes.
The Task Force heard evidence that prostitutes are afraid to call the police when
they are crime victims, for fear of being arrested themselves. Once a person gets
a rap sheet as a known prostitute, she/he may be trapped and stigmatized for life,
and may be unable to pursue other jobs.
As noted in the Quality of Life section, enforcement of these laws does not solve
neighborhood concerns. The Task Force findings indicate that decriminalization
of prostitution could eventually reduce street prostitution and would enable the
city to address the problems of the vulnerable populations who are currently part
of the street economy.12
Adequate state and local laws already exist to respond when noise, trespassing
and littering are problems. These infractions are punishable by fines, not by
incarceration. Since they cannot be jailed upon conviction, people charged with
these infractions do not have the right to a jury trial or an attorney. Since
they are handled in traffic court, prosecution, defense and Sheriff's resources
are not needed. Failure to pay fines is a criminal offense, however; those who
refuse to pay their fines may be prosecuted. Infractions are therefore a more
cost-effective enforcement option than misdemeanors and felonies.
Under no circumstance, however, should these infractions be used to harass suspected
prostitutes. Harassment and abuse of suspected prostitutes is a serious problem
in the San Francisco Police Department which is only recently coming to light.13
The very methods of enforcement encourage abuse: police officers pose as prospective
clients and try to get suspects to say the words that will get them arrested.
The police are most successful who most convincingly behave like clients. Many
women complain of vice officers fondling them or exposing themselves before arresting
them. These women refuse to report abusive officers because they fear retaliation
or that they will not be believed.
Despite the difficulty of uncovering and uprooting abuse, in 1994 a police officer
was arrested for forcing a massage parlor worker to orally copulate him;14
and the City paid $85,000 in damages to a registered nurse who was falsely arrested
and held when the officers suspected her of being a prostitute. In the course
of that litigation, Federal District Court Judge Marilyn Hall Patel recommended
that the U.S. attorney's Office investigate the arresting officers for perjury
during their testimony.15
Law enforcement policy also affects public health policy. This issue is discussed
in the Health, Safety and Services section but one particular law should be highlighted
here. State law requires that anyone convicted of soliciting prostitution be tested
for HIV infection. The results are kept on file in Sacramento; if a person is
rearrested for soliciting, any District Attorney may learn their results. If the
person was HIV positive at the time of the previous conviction, the new charge
is elevated to a felony. The person charged faces state prison for offering or
agreeing to perform a sex act for money. The law does not distinguish between
offers of safe sex and offers of unsafe sex.16 Civil
libertarians and AIDS activists point out that this law stigmatizes a group of
people for their immunodeficiency status, without any evidence that they are actually
causing harm.17
Moreover, the forced testing law assumes that prostitutes represent a threat to
public health. There is no evidence that sex workers as a group have greater incidence
of HIV infection than the general population or that they spread HIV disease.
In fact, evidence shows that San Francisco sex workers are highly educated about
safe sex.18
Completely contrary to the policy of improving public health, the San Francisco
Police Department had a policy of confiscating condoms from people arrested for
prostitution-related offenses. Many of the condoms taken had been given to street
workers by the City Department of Health. Further, if a person charged with soliciting
prostitution had condoms when arrested, the District Attorney's office used the
condoms as evidence against them in court. The Task Force unanimously passed a
resolution condemning the Police and the District Attorney's actions. (See Appendix
D.: Laws and Enforcement) Under pressure, the District Attorney promised to stop
using condoms as evidence. Nevertheless, some police officers are still acting
in contradiction to the policy. At this time, Senator Milton Marks is sponsoring
legislation which would prohibit District Attorneys from using condoms as evidence
of prostitution-related activities.19
The following recommendations address immediate shifts in priorities within
the current legal framework as well long term goals.
I. Repeal the unconstitutional Municipal Police Codes-- sections
215 through 248-- in accord with recommendations by the City Attorney.20
II. Immediately stop enforcing and prosecuting misdemeanor and felony laws.
Dismiss all current prosecutions in order to begin immediately reallocating
resources.
III. Respond directly to complaints of excessive noise, littering and trespassing
by enforcing ordinances specific to those complaints.21
The police should not use any laws to harass suspected prostitutes.22
(See Appendix B. For State Laws and Municipal Codes.)
IV. Vigorously enforce laws against coercion, blackmail, kidnapping, restraining
individual's freedom of movement, fraud, rape and violence regardless of the
victim's status as a sex worker.23
V. Redirect resources currently allocated to police investigation, incarceration,
prosecution and defense of sex workers to augment resources for housing, outreach
and other services for these populations. (See Health, Safety and Services Recommendations.)
VI. Curtail expenditures for Police investigation of prostitution venues where
there are no accompanying complaints, including hotels, cafes and bars.24
VII. Remove authority for the licensing of massage parlors, masseuses and masseurs
and escort services from the Vice Crime Division's jurisdiction and place it
with agencies already qualified to grant other standard business licenses.25
VIII. Provide training and circulate directives to Police Department and Sheriff's
Department personnel to eliminate harassment and abuse of prostitutes by law
enforcement personnel.
IX. Provide training to improve the ability of the District Attorney's office
to successfully prosecute cases of rape and other assault in which prostitutes
and other sex workers are the victims.
X. Authorize city lobbyists to identify legislators who will commit to carrying
legislation towards the following goals.: (See Appendix B. For State Laws and
Municipal Codes.)
o Repeal state laws that criminalize engaging in, agreeing to or soliciting
prostitution, or laws and policies which can be interpreted to deny freedom
of travel, and the right to privacy to prostitutes.
o Repeal state laws which can be interpreted to deny freedom of association,
or which criminalize prostitutes who work together for safety.26
o Repeal mandatory HIV testing and felony enhancements of HIV+ prostitutes.
o Repeal minimum mandatory sentencing laws for second and subsequent convictions.27
Currently, and as long as there are people accused and convicted
of prostitution-related offenses in our jails, the Task Force recommends the following:
XI. Conduct a study of the accessibility and relevance of services in the city
and county jails, and the juvenile detention center, to individuals involved
in the sex industry.
XII. Develop peer based pre-release planning programs relevant to prostitutes
to connect them to social service programs that respond to their specific needs,
including sex worker's rights organizations, as well as other programs that
help them obtain housing, jobs, clothes, child custody and child care, health
care and other post-release needs they have.
XIII. Formulate a pro-active policy within the Sheriff's department, that persons
brought in on charges related to prostitution should not be excluded from citation
release programs.28
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