I feel cold metal on my wrists. I hear the click of the handcuffs. I see my hysterical toddler son being put into a police car and I wish I could say that the rest is a blur. As the police search me I feel terrified and alone. I know that I have drugs in my pocket and that I am going to jail. What I do not know is where they are taking my little boy who has autism, cannot communicate and has not left my side since the day he was born.
As the Guardian found when it interviewed me for a video investigation on human trafficking in San Diego – leaving the life is by no stretch an easy task. Oftentimes victims never have the chance to make it as a survivor; they die trying.
The degree of failure that I felt on that day is indescribable. Up to that point, because of my exploitation and drug use, my life had been a barrage of failures. This time was different, though. This time I not only failed myself, I failed my son as well.
Not every sad story has a tragic ending. Looking at the statistics, you might think I should be dead. My sad story includes a beginning that was riddled with family dysfunction including domestic violence, neglect, sexual abuse and exploitation. This traumatic upbringing was followed by drug abuse and forced prostitution. And yet here I am today, a sober, emancipated, successful and happy woman.
Years of childhood sexual abuse were, for me, the impetus to a hypersexuality during my adolescence. That set the stage for my many years of human trafficking, defined as forced labor or commercial sexual exploitation and prostitution. Human trafficking is defined as the exchange of money for services that have been obtained by force, fraud or coercion. I firmly believe that one cannot separate human trafficking from prostitution, CSEC (the commercial sexual exploitation of children) and the equally important issue of labor trafficking.
A perfect example of this is the fact that my second husband was my first trafficker, forcing me to have sex with other females for money. He also used my addiction as a tool of manipulation to ensure complete control over me and make sure that I did not leave. This lasted eight years.
Once I escaped my second husband, I soon found that I was no farther from the life without him than I was when I was with him. Traffickers can sense when someone is vulnerable and I was no exception. I went back and forth, sometimes under the control of a pimp and many times engaging in prostitution just to survive. Although I did not know it, I never even had a choice. It would be impossible to count how many times I was raped, assaulted, held hostage and almost died. I have PTSD and major anxiety as a result. Fortunately, today I have a much different story. One that is full of hope and potential.
After the loss of my son and the consequences of my arrest, I had two choices: either let my son disappear into the system or fight like hell to get him back and give him the life that we both deserved. In fall of 2011 I enrolled in San Diego City College as a re-entry student. At this point in my life I was a 35-year-old single parent with absolutely no job skills and no work experience to speak of. It was a humbling process to say the least, and challenging as well.
Is there a solution? When you are talking about an illicit industry as large as human trafficking, one has to acknowledge that there is no one solution to solve this horrific phenomenon. From what I have learned in my many years as an activist fighting human trafficking, I believe that the Nordic Model is one of our best prospects.
The Nordic Model criminalizes demand (the buyer and the pimp) for commercial sex, while decriminalizing individuals in prostitution and providing them with support services. Today, these services are scarce and make it almost impossible to convince a victim that there is something after “the life”. We are working to achieve this level of care in San Diego, but have not yet succeeded.
According to a study from Point Loma Nazarene University and University of San Diego, we have 28 beds and an estimated three to 8,000 victims. This is not the picture that saves lives; it is one that takes away almost all of the hope of transitioning from victim to survivor.
On 11 January 2016 I attended my first course at Point Loma Nazarene University. In 2015 the university established the Beauty for Ashes Scholarship Fund, a scholarship for victims of human trafficking. I decided to take a chance and apply, and soon after I became the first recipient of the new scholarship. As far as I know, this is the only scholarship of its kind that is specifically for sex trafficking survivors.
I am grateful to say that after 14 months, I was granted custody of my son and he is a flourishing nine-year-old boy with the most amazing personality and he is resilient as well. I am not going to lie: raising a child with autism has been one of my biggest challenges. However, it has also been the biggest blessing of my life.
He and I are best friends and have a bond that was not altered by the year that we were separated. Instead, because of the intervention we received from child welfare we are so much stronger and I have a significantly enhanced awareness of the degree of change that the human spirit is capable of. Both gifts that cannot be bought.
I am the exception to the rule. I am one of a handful of victims that has survived to lead a different life. Now, I am determined to be part of solution: to raise awareness and to agitate for a changes in policy and the law. I hope you will lend me your encouragement.
A federal report on sex trafficking in San Diego has revealed a vast underground industry worth more than $800m annually, eight times higher than previously estimated.
The report, considered the best measure of the problem’s scope to date, has shocked researchers and law enforcement officers in the region.
“I didn’t realize the amount of money involved,” said Bill Gore, the San Diego County sheriff.
Sex trafficking, defined as the trade in which someone has been forced, coerced or tricked into prostitution, involves some 110 gangs just in San Diego County, dubbed one of 13 hot spots for child sex trafficking in the US by the Federal Bureau of Investigation.
“This is a beautiful town with an ugly truth,” said Summer Stephan, the county’s chief deputy district attorney.
The Department of Justice is set to use the report as part of a new national framework to build a more accurate picture of the murky trade across the US and develop new strategies to tackle it.
“The study will provide a lot of new information to those seeking to end modern slavery,” said John Picarelli, director of the violence and victimization research division at the National Institute of Justice, part of the justice department.
Aside from the scale of the industry, researchers were also surprised by the demographics of the exploiters involved, after their two-year, in-depth study funded by the department, which included interviews with prison inmates.
“The stereotype that sex trafficking is principally a practice of black gangs is inaccurate … and may channel law enforcement in too narrow a direction,” the report says.
Active use of social media by African American gang members make them “low hanging fruit” for the police, but that’s far from the whole picture, the report found.
“Pimps were evenly split between white, black and Hispanic in San Diego. And that doesn’t take into account that the rate of incarceration for black and Latino populations is disproportionately high, so most pimps, or facilitators, are probably white,” said Ami Carpenter, professor of conflict resolution at the University of San Diego and the primary author of the study.
Carpenter also found that only a tiny minority of pimps, as little as 2%, conform to the stereotypical character who uses “almost psychopathic” levels of violence.
A further 12% of exploiters that the researchers interviewed admitted to using “some physical violence” on the girls and women in their control – although up to 30% of victims interviewed said that had been the case.
But most exploiters rely on economic coercion or emotional manipulation, often accompanied by fostering a drug dependency.
Others have a more contractual partnership, under which they are hired by [prostitutes] as their security guard or driver.
Ryan, 36, who has felony convictions for trafficking in the past and preferred not to publish his last name but goes by the alias “Eff’n McCoy”, said: “San Diego ain’t what people think it is. They see Sea World and the beach … but there are ’hoods.”
He went from a deprived childhood to pimping. “I was just following what I was seeing. You hear people rap about it and they glorify it … I thought, ‘I have to do this, sell this to get somewhere.’ But that’s not right,” he said.
In San Diego County, between 3,000 and 8,000 victims enter the clutches of the sex-trafficking industry every year, the researchers calculated. While a fifth of those come from other countries, many across the nearby border from Mexico, 80% enter the industry from within the US. The average age to begin selling sex is 15, and 50% of women arrested for prostitution have at some point been forced into it, the study found.
Crystal Isle, 41, married her cocaine dealer when she was 21. It was her second marriage. She said she was raped by her mother’s boyfriends starting when she was eight and growing up in San Diego. Now her new husband wasn’t just her drug dealer; he became her pimp and forced her to sell herself. He was imprisoned when she was 29, but by then she was entrenched in “the life”.
Once, a man paying for sex almost broke her neck. But it was only when her two-year-old son was taken away from her while she was high on methamphetamine in 2010, and she received counselling after a stint in jail, that she finally understood, at age 35, that she was a victim of exploitation.
“It was my turning point. I was full of self-hatred. I blamed myself, my mother. It was sad when I realized I’d been a victim my whole life – but it was also freeing, to the point where I don’t feel shame,” she said.
Henry Wallace, 64, said he grew up in a broken home, stealing at five while his mother turned to prostitution to raise five children after their father walked out. Then he performed as a teenage singer and enjoyed local popularity.
“It made me feel good, that power. Next thing, I was approached on the drug side and the pimping side. The girls giving me money in high school from ‘ho’ing’ on the streets. I didn’t know how to get a job. I could only speak street slang,” he said.
He would recruit girls who seemed like loners, with low self-esteem.
“They needed a father, a big brother image … I had a loving relationship with them. It was about us surviving – it wasn’t about me making you do nothing that you don’t want to do already,” he said.
His life of “Cadillacs … big homes … bling-bling” from pimping, robbery and heroin dealing ultimately led to prison, then, eventually, a weary exit from the trade.
The research found that pimps were typically earning around $670,000 a year. Their [prostitutes] are reluctant to come forward or testify against the pimps.
Crystal Isle said: “You’re scared to get out of that life because you can’t see anything better beyond it. You need safety, counselling – and protection from people who might kill you because you’re worth hundreds of thousands of dollars to them.”
Carpenter said the main roots of sex trafficking were in poverty and racism. But her research also revealed that the trade spans the economic scale, ranging from an individual exploiter in a poor neighborhood up to “black book rings”, “where judges, lawyers and generals, elite persons in society, are provided access to women and children, whoever they want”, she said.
The study found the underground industry was shifting from drug trafficking to sex trafficking because of lower risk of detection.
And in the last five to seven years, the authorities in San Diego have changed the way they deal with the flourishing sex trade, Stephan, the chief deputy district attorney, said.
Educators, health and child welfare workers, police, prosecutors and victims’ advocates began collaborating to help girls and women avoid or escape exploitation.
“We want[ed] to go after the organized crime, address kids at high risk, especially who are homeless or in foster care – have a proactive prevention and detection model in our schools,” said Stephan.
But they still lacked key information on the nature and extent of the trade.
Carpenter said the county had “anecdotes but no numbers”, which her research sought to address.
“The study provides answers to important questions – how traffickers come into being, how they learn and operate, and how different interventions might deter them in the future,” said the justice department’s Picarelli.
San Diego is now pushing for change.
Stephan argued recently in the state capitol for new laws allowing heavier punishments for exploiters and men paying for sex in California. She wants automatic jail time, re-education programs and bigger fines for so-called johns, with penalty money diverted to services helping women leave prostitution.
San Diego County is not decriminalizing [prostitution], but there is a growing recognition of the victims of trafficking.
Isle has seen both sides. She believes the statistics in the new report about the scale of trafficking are conservative.
After years of violence and danger, she began studying in 2011 and in January 2016 joined Point Loma Nazarene University, on a scholarship for victims of trafficking. She called for better understanding of the trade.
“People deserve the opportunity to change and they don’t need you over there looking at them like they’re trash,” she said.
Isle is scoring A’s in her studies.
She choked up.
“I’m so proud. I’ve realized I’m really good at this school thing and I might have some value to some organization one day,” she said.
The Blow Monkeys feat. Sylvia Tella, Choice?, TOTP, 1989
Yet again the males on the left have let women down, while kidding themselves that they are being progressive. Jeremy Corbyn has said, during a talk at Goldsmiths University, that he is in favour of decriminalising the sex trade. “Let’s do things a bit differently and in a more civilised way,” he said.
But there is nothing civilised about legitimising one of the most exploitative industries on the planet.
It is apt that Corbyn made his admission at Goldsmiths. Any feminist in support of criminalising sex-buyers is instantly accused by members of Goldsmiths’ feminist society of hating prostituted women, or “whorephobia”, as it is known. This twist of logic is quite something considering the law that criminalises demand also decriminalises those selling sex.
I cannot believe that Corbyn is so misinformed as to see the blanket decriminalisation of the sex trade as necessary to uphold the human rights and safety of those selling sex. In Sweden, the first country to introduce the sex-buyer law in 1999, not one prostituted woman has been murdered by a pimp or sex-buyer since then. In New Zealand, where the sex trade was decriminalised in 2003, there have been five murders.
What decriminalisation actually means is that control is taken away from the criminal justice agencies and given to local authorities. Under this model, pimps become managers, and brothel owners are business entrepreneurs.
The only difference between decriminalisation and legalisation is that under legalisation the state becomes the official pimp by making certain aspects of the trade legal. This way it can collect taxes and impose compulsory health checks on prostituted women – something the great feminist abolitionist Josephine Butler campaigned against in the 19th century.
Many on the left believe any criminalisation of the industry stigmatises those who sell sex, and that the selling of sex should be regarded as a job like any other. But there is a growing body of research showing that in Germany, Australia, New Zealand, Nevada and the Netherlands, where prostitution has been legalised or decriminalised, there is an increase in demand, which in turn has led to an increase in people coerced into prostitution. Such regimes lead to an increase in the legal as well as the illegal sex trade.
In researching my forthcoming book on the international sex trade, I have spoken to a number of women currently and formerly involved in the sex trade in New Zealand, the country hailed as nirvana since the disaster of legalisation in Holland became public.
One interviewee began working in a New Zealand brothel just after she turned 18, prior to decriminalisation. I asked her what decriminalisation had changed. “I don’t think it made any difference,” she said, “because the boss still does everything really dodgy, and I think that’s how he did it when it was illegal.”
The idea that pimps and other exploiters would suddenly turn into considerate employers who pay taxes and abide by the law simply because they are no longer technically criminals is ridiculous.
The sex workers’ rights lobby that has targeted Labour with its propaganda on the benefits of decriminalisation minimises and denies harm. The only harm it is prepared to acknowledge is caused, according to this logic, by feminists and police officers.
One sex workers’ rights activist recently claimed in her blog: “No sex worker I know reports clients as being the biggest problem … It’s always the rescuers, the police and the state that do them the most harm.”
What utter rubbish. While police brutality is prevalent towards women in prostitution in a number of countries, the rapes, homicides and violence from pimps and punters is well documented. In the UK alone, there have been 153 murders of prostituted women since 1990 – none committed by feminist abolitionists or police.
Why the left supports the rights of pimps and brothel owners is a mystery. It is akin to supporting tobacco industry profiteers in order to destigmatise smokers.
Corbyn and his colleagues would do well to listen to survivors of the sex trade before taking such an uninformed line on the best way to regulate prostitution.
As Rachel Moran, sex trade survivor and author of Paid For, remarked: “Males of the left defy every principle they purport to stand for when they contort their own political values to view women’s bodies as commercial products subject to purchase in free market economics. No other social group is treated this way by the men of the left.
“It is only women who are deemed so worthless as to be denigrated with this indignity, and it is only women whose equal human status is so unthinkable as to motivate them to turn their backs on their own politics.”
Child refuges for victims of sexual abuse are to be set up in the UK to cope with the public health crisis from the scale of offences against young people.
Inspired by the Barnahus in Iceland, the child houses will provide young people with a supportive, child-friendly environment in which to talk about their experiences.
Forensic examinations, criminal justice interviews and therapy will be provided under one roof in an attempt to increase the number of prosecutions of perpetrators, end the gladiatorial challenges of victims by defence lawyers, improve the quality of evidence and reduce the stress on children.
The Hollywood actor David Schwimmer, who has spent many years supporting a similar service known as Stuart House in Los Angeles, has lent his support to the creation of the child houses in the UK.
He said: “The general public and government has to accept that child sexual abuse is a national children’s health crisis. In most communities, sexually abused children are taken to numerous agencies in separate locations and at each place the child is interviewed by another adult in cold institutional settings like police stations, often by people who are not trained in best practice. They are shovelled from office to office, when this happens a young victim can shut down, they feel interrogated and disbelieved.”
Speaking at the NSPCC annual conference, Schwimmer said in Stuart House, where he is a director, children were able to receive all the expert care they needed.
“When a child is sexually abused the child’s body is a crime scene. When the children are ready they are examined in a way that feels routine, at the same time the nurses use state of the art equipment to scan their bodies for evidence,” he said.
“Physical trauma is photographed and documented, becoming evidence to help prosecutors. Then the child has a forensic interview with police and prosecutors watching the interview from behind a one-way mirror.”
Interviews are video-recorded and become evidence-in-chief in court, removing the need for young children to appear in person and be subjected to often gruelling cross-examination.
Two child houses will be opened next year in London. There are plans to open three more in the capital. The mayor of London’s office for policing and crime and NHS England have secured £5m worth of government funding for the refuges. The NSPCC and NHS England hope to create more child houses across the country to cope with the growing scale of child sexual abuse, which the charity says is a public health emergency.
In 2014-15 child sexual offences in England and Wales were at their highest for a decade, with more than 47,000 offences against children recorded. The increases are continuing, and in 2015 police investigated 70,000 reports of child abuse.
In Iceland, child refuges have been established in every police district. The model has been copied in Sweden, where there are 30 childrens’ houses, and in Denmark. The aim in the UK is to provide better support for children, but also to create better evidence and increase the number of prosecutions.
DCS Keith Niven, the former head of the child abuse command at the Metropolitan police, said the creation of child houses was “exciting and innovative”.
“All partners work together to gather evidence from a child victim of sexual assault in the least intrusive way, providing a strong and accessible network of support to enable the child to move forward from such a traumatic incident,” he said.
Anne Longfield, the children’s commissioner for England, who recently visited the Barnahus in Iceland, has held a meeting with police and crime commissioners to persuade them to provide funding to build a network of child refuges across the country.
She said the interviews currently carried out with child victims of sexual abuse were multiple and were a complex, gruelling process that often broke down and could take months.
Longfield said: “This can be incredibly traumatising to the child. There may also be a delay in them getting therapeutic support whilst the evidence is collected for fear that it may prejudice what they say. The Barnahus approach has proved to be incredibly successful at overcoming these hurdles where it has been introduced. I hope that it will be trialled in a number of police authorities around England.”
The first two child refuges are to be opened early next year in London, with three more planned for the capital.
Peter Wanless, chief executive of the NSPCC, said: “Children who have suffered sexual abuse are the most vulnerable in society … Our child’s house scheme will put the child’s care and recovery at its centre. By allowing the child to give their evidence remotely, we can minimise their suffering, improve the quality of evidence and ensure they get the justice they deserve.”
Aside from the obvious reversal of guilt and innocence blatantly on display here, a tactic not new in rape trials, what Dan Turner misses about rape culture is constituent of the larger social misunderstanding of what it really is: rape culture not only implicates the millions of male rapists around the planet, rather it is the larger discursive framework which allows the individual rapist or rapist apologist, to take the sexual violation of a woman and parenthetically extricate these “twenty minutes of action” as somehow anathema to that male subject’s essentially good nature. You know, the other 23 hours and 40 minutes of that particular day. It is as if we must uniquely defer to what the male subject does when he is not “out of character” raping women to constitute his holistic “happy go lucky self” who can get back to his eating his ribeye steak.
And herein lies the punctum of rape culture: that the violation of women is conceived as the rupture in behaviour and “good boy” normalcy that constitutes the civil subject. Male as always good natured (except when he is not), male as in control (except when he is not), male as well meaning (except when he is not), and woman as collateral damage for the except when he is not for the “twenty minutes of action.” To anyone contemplating rape in terms of time management, one could vulgarly frame rape within a larger temporal structure to minimise these minutes such that one might rationalise the act of violation in this manner: “She needs to get over it. After all, it only lasted a few minutes.” Indeed, women are constantly reminded to move on and focus on those events that are really worthy of their attention, as if victims of violence evaluate must forgive the date rapist because she knew him and might have, like Lucretia, encouraged him. Women are told to put a line under what was only a few minutes of a long happy future (if only she could put it behind her).
Rape culture epitomises the presumption that women are perpetually willing victims in their own rape, not because in 2016 it is assumed that she wants to be raped, that she was in the wrong part of town, too drunk for her own good, or that she was wearing tight jeans, as the historical clichés go (clichés which are not at all fantastical, but very much based on historical and juridical fact). But because it is assumed that her body is still, in the eyes of the right a private possession, and of the left a public commodity. Because a woman’s cultural value is still pinned upon her ability to concede—to concede her vulnerability in the current bathroom wars, to concede the most minuscule doubt that perhaps she shouldn’t have taken that route home, and even concede that she should not have been drinking. She is even expected to consider the facts leading up to those “twenty minutes of action,” assumed to actively participate in the casting of doubt and aspersions on her possible willingness to have taken part in her own sexual assault. Dan Turner’s perverse reversal of victim and victimiser whereby his son is bizarrely cast as a victim, is all too common today and demands of the rape victim that she have sympathy with her victimiser, that she ally herself with her aggressor, because such is the task of the contemporary female to be perpetually linked to her symbolic paterfamilias as she strays from the perceived safety of the home. Nary a word about how many political actors of the left still regard rape as an unfortunate price to pay for freedom, rather than an extenuating symptom of male violence.
The specific language of “twenty minutes of action,” is a sad indicator of the cultural temperature for reading violence against women today. When rape is regarded as an action, likened to swimming or any other sport or activity one is forced to extricate morality and violence from what is really just an activity like any other. That this action involved the penetration of an unconscious woman is incidental to Dan Turner and his son. In fact, such a letter indicates the familiar and social heritage of rape within the world. That indeed if it is possible for one person to commit this “action,” then it is even more probable that this actor is surrounded by other like-minded actors who have set the scenario, costumes, stage props, and lighting such that everyone but the victim is acclimatised to the leap of faith necessary to suspend disbelief in this his reality. Rape culture is a permanent state of this suspension of disbelief, from the perpetrator, to his father, and friends and anyone who prefers to view the staging of this tragedy as a romantic comedy, as rapist with a heart of gold, or as the potential professional swimmer who made bad judgment call. When it is time to invoke readings of male subjectivity, every effort is extended to the rapist and his clan to explain why he rapes and astonishingly, Dan Turner’s letter was only one of a pile of letters Judge Persky received.
Here is an excerpt of the letter from Turner’s childhood friend, Leslie Rasmussen:
I don’t think it’s fair to base the fate of the next ten + years of his life on the decision of a girl who doesn’t remember anything but the amount she drank to press charges against him. I am not blaming her directly for this, because that isn’t right. But where do we draw the line and stop worrying about being politically correct every second of the day and see that rape on campuses isn’t always because people are rapists.
Rasmussen, who is now bemoaning the fact that her band has recently had many gigs canceled from various events in New York is incredulous that people take issue with her having minimised a sexual assault because the victim lay unconscious while “not blaming her directly,” of course. But Rasmussen does ask a pertinent question that needs to be turned inside-out to speak to the inconsequence of rape culture in her world view since it is due to her support and the many other letters of support which enact the rationale of political correctness. Since political correctness today is commonly understood as the political discourse of policing language and policies so as not to offend or disadvantage a particular demographic, it is clear that every single letter handed to the judge in support of Brock Turner, to include that of Rasmussen, functions precisely to police the legal interpretation of what Turner committed: sexual assault. Or if we are to believe Rasmussen, “These are idiot boys and girls having too much to drink and not being aware of their surroundings and having clouded judgement.” When rape is tantamount to getting drunk and surroundings are a proxy for penises, fingers and vaginas, the stage setting of rape is really as good as the narrative spun by the accused and friends. That is, if they really believe it.
Justice for Brock Turner’s victim, however, is turning into the “gift” that keeps on giving as we now learn that Brock Turner’s sentence has already been reduced to three months due to good behaviour credits applied ahead of time because – sit down for this one – “it was assessed that he was unlikely to misbehave behind bars.” So not only are women like Turner’s victim up against Brock Turners of the present, but we have the luxury to fight against their future persona’s constructed by the generous court system which deems the sexual assailant as benevolent. Sexual offenders are de facto assumed to be “unlikely” to misbehave while paradoxically behind bars for a brief stint because they sort of have – emphasis on the “sort of.” Together with an entourage of people who explain “twenty minutes of action” as a result of “clouded judgment” due to alcohol consumption and who blame Turner’s assault on “sexual promiscuity,” we are being told, effectively, that rapists are just men who rape women. Unpacked, this means that rapists are men who by the sheer number of the world’s population have come into social contact with other humans and who, because of this fact (plus memories), are able to procure letters of support simply because they did not rape every other of these other humans in their inner circle. Unpacked once again: rapists are really not rapists because they did not rape me.
When it comes to relations between the sexes, men do not rape, murder, brutalise, denigrate and oppress women worldwide because women have not educated them sufficiently about our humanity. Women’s humanity is obvious. Men deny it because they enjoy oppressing us, because they directly benefit from it, and they will only stop when women organise politically to MAKE them stop, when we dismantle the institutions by which they perpetuate this. Patriarchy is not a mistake, it is not some glitch in the system that has arisen due to ignorance on the part of men. It is a deliberate arrangement of power.
This is Gangnam, today. Gangnam is a bustling main street area in Seoul, South Korea, similar to Times Square in New York City. I grew up here.
On the night of Tuesday, May 17, 2016, a 23-year-old woman was brutally stabbed to death with a 12-inch knife in a unisex bathroom. She had been enjoying a night out in Gangnam with her boyfriend and friends. The police arrested a 34-year-old man who confessed that he had been waiting inside the bathroom to kill any woman that walked in, because he hated women for ignoring him.
The mainstream media described this murder as a freak incident, a random killing committed by a deranged individual. Worse, many people blamed the woman for having been out drinking at night. Many others empathized with the murderer’s hurt feelings.
Feminists are naming this murder a femicide (woman killing/gender-based crime), one among too many. We recognize the connection between this woman’s murder and the murders of other women, more than a hundred women murdered by male partners every year in South Korea, hundreds of missing and murdered indigenous women and girls in Canada, hundreds more violently killed in Ciudad Juárez, Mexico, women who lost their lives in the Montreal Massacre, and countless others on this planet, past, present, and future.
We will remember her death.
We will fight back.
We will not give up.
In a decision that begs to be characterized as “First Amendment gone wild,” an appeals court has all but struck down a 1988 law that requires pornographers to maintain records showing that actors aren’t underage. For good measure, the court said it violated the Fourth Amendment to require the documents to be available anytime for government inspection. These twin holdings are both plausible applications of recent Supreme Court doctrine. But the results are so absurd that they call out for review by the highest court itself.
The laws in question appear in section 2257 of the Child Protection and Obscenity Enforcement Act of 1988. They arose from Congress’s desire to fight child pornography when the First Amendment has been interpreted to protect adult pornography, including depictions in which an adult actor is presented as underage.
The 2257 laws essentially require anyone making sexually explicit films to keep records documenting the identity and age of all performers. The records in turn must be available for inspection by the attorney general of the U.S. “at all reasonable times.”
Since 1988, these laws have applied without causing any crisis for constitutional free speech or privacy. In 2012, free-speech advocacy groups acting on behalf of pornographers brought a challenge to the U.S. Court of Appeals for the Third Circuit — and lost. But in 2015, the Supreme Court decided a major free-speech case as well as an important Fourth Amendment case. Buoyed by new hopes, the challengers returned to the courts.
They were right to do so: The Third Circuit reversed its 2012 holding on both fronts. The free-speech holding is probably the more shocking, so I’ll start with that.
The plaintiffs’ core argument was that, under a 2015 decision called Reed v. Gilbert, the 2257 laws are not content-neutral, and therefore must be subjected to what the courts call strict scrutiny. That means the law must be justified by a compelling state interest, and must be narrowly tailored to that interest. This standard is so high that in the free-speech context, it is almost always fatal to the law. Holding that strict scrutiny is necessary is almost (but not quite) a holding that a law is unconstitutional.
In 2012, the Third Circuit had held that section 2257 was content-neutral because the purpose of the law was to protect against child pornography. That was correct under then-existing precedent.
But the new Third Circuit opinion says that the 2015 Reed case should be read to say that purpose is irrelevant to content neutrality. The Reed case said that a sign-display ordinance in an Arizona town wasn’t content-neutral because it created different rules for different signs. The Third Circuit held that section 2257 is similarly not content-neutral, because it applies only to sexually explicit speech.
The government tried to save the statute under a doctrine that the Supreme Court has only ever applied to adult theaters and nude dancing. That doctrine says that when speech or expressive conduct is regulated for its “secondary effects” not its content, it can be subjected to lower level scrutiny known as “intermediate” — much easier to survive.
The court flatly rejected the invitation to extend the secondary-effects doctrine to other free-speech contexts. It said, somewhat plausibly, that doing so would endanger much free speech, because the government could almost always say its goal wasn’t to ban some type of speech but the effects of the speech.
This holding shows the absurdity of taking the Reed decision to its logical conclusion. Section 2257 doesn’t target sexually explicit speech in the sense of banning it. It simply imposes the burden of record-keeping as a way to avoid the separate, completely illegal practice of child pornography. That purpose should matter.
The lower court might say the law survives strict scrutiny — but don’t count on it. Almost any law can be tailored more narrowly.
The Third Circuit went on to strike down the inspection provision of section 2257 on the basis of another 2015 decision, City of Los Angeles v. Patel. That case overturned a city ordinance (straight out of a film noir) that allowed L.A. police to inspect hotel registers without a warrant.
If you think that there’s a stronger privacy interest in who’s sleeping in a hotel than in the ages of actors in sexually explicit films, then I think you’re right — but the Third Circuit ignored that distinction, taking the Patel precedent as near-absolute.
There’s a well-recognized exception to the warrant requirement for heavily regulated industries. But the court said that pornography isn’t as closely regulated as, say, the funeral home industry. If that’s true, it shouldn’t be. At the risk of stating the obvious, there’s much more risk to regulate with live people having sex than with dead people being prepared for interment or cremation.
Like the First Amendment holding, the court’s Fourth Amendment holding is tone-deaf to the situational need that created the section 2257 regime. Without records and inspection, the dangers of child pornography will increase. The law addresses this risk without barring any speech or granting government access to any private information. Its loss will be felt. And the Supreme Court, which has in the past made new constitutional law to allow bans on child pornography itself, is likely to respond.