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 The City Attorney has concluded that most of the San Francisco ordinances are unconstitutional and should be repealed. 8 Nevertheless, these ordinances occasionally are used to arrest suspected prostitutes, though they are usually discharged before they ever make it to court.9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.

Currently, and as long as there are people accused and convicted of prostitution-related offenses in our jails, the Task Force recommends the following:

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