I was interviewed on WLRN, a feminist radio show from Madison, Wisconsin about the state of prostitution and pornography laws in the U.S. It will be aired June 6 if you are interested. Here’s the link. https://wlrnmedia.com/2025/06/05/edition-110-dianne-post-on-the-inequality-of-women-the-law-regarding-prostitution/
Prostitution
Prostitution is illegal everyone in the U.S. but Nevada except Clark County i.e. Las Vegas. It is only legal outside of Clark County in brothels where women can be controlled. The brothels are like prisons and the women are not free to leave when they want and must account for the cost of stained bed sheets and other things from their “wages.” It takes no amount of thinking to know this system is not working and in fact prostitution is rampant not just in Las Vegas but across the U.S.
The U.S. is signatory to the international protocol on trafficking, known as the Palermo Protocol, that entered into force on December 25, 2003. Because of that, the federal government has passed required laws as have states. From that we have the T-visa for trafficked women to remain up to 4 years in the U.S. with a work permit so long as they cooperate with law enforcement (LE). This may be a problem for those who come from countries where LE is not trusted or where the criminal gang that trafficked them may go after their family if they talk.
The law also requires that minors (under 18) may not be prosecuted for crimes they may have done while trafficked because they are victims. Arizona still has not fixed its law on that. But this does not apply to adult victims unless you can prove force or coercion. If you are trafficked, it’s with force or coercion. People do not do this for fun. If you do it because of dire poverty or your parents sold you, that is not consent. Those of us fighting this battle lost that argument.
The use of “commercial sex trafficking” is another misnomer. Sex trafficking is commercial. There is no other reason to do it but make money. Men do not do this as a hobby in their spare time.
In 2018, Congress passed the Allow States and Victims to Fight Online Trafficking Act of 2017 (FOSTA), which combined a House bill of the same name with provisions from a Senate bill, the Stop Enabling Sex Traffickers Act (SESTA) amid much teeth gnashing from the ACLU and the civil liberty types which usually includes me.
FOSTA as passed makes changes to three federal statutory schemes: the Communications Decency Act (Section 230), the Trafficking Victims Protection Act (TVPA), and the Mann Act. The Mann Act (previously the white slave trade act) was passed in 1910 and prohibits taking a prostituted person across state lines. More than two years after FOSTA passage, only one prosecution had been brought under the new criminal provision, and very few lawsuits had been brought against online platforms for sex trafficking, despite the lack of immunity. So teeth gnashing only helped the dental trade.
In July 2023, Maine became the first state to adopt the Equality Model (Nordic model) that
decriminalizes people in prostitution while holding sex buyers and exploiters accountable. The model began in Sweden in 1999 and has spread to Iceland, Norway, Canada, Northern Ireland, France, the Republic of Ireland, and Israel as countries committed to ending the system of prostitution and to targeting the demand for it as a tool to prevent sex trafficking and to change cultural norms that dehumanize marginalized individuals, overwhelmingly women and girls.
The Act solely decriminalizes and ends the arrests of people bought and sold in the system of prostitution, eliminating the crime of engaging in prostitution. The law offers survivors the services they need, while maintaining penalties against sex buyers and other exploiters for the grievous harm and violence they cause. The law also seals records of prostitution convictions so survivors can rebuild their lives without fear of discrimination in housing, employment, and in other sectors that are key to enjoying fundamental human rights. All international research has shown it is the only approach to protecting women in prostitution that works.
PORNOGRAPHY
In 2022, VAWA was modified to allow victims to sue civilly if actual photos of them were used without consent and loaded onto pornography websites. This leaves it to the victim to get the attorney, pay for her, etc. But the law has been used against Pornhub as well as some criminal laws particularly in Canada.
Most recently, the Take It Down Act passed which is a law aimed at revenge porn and deep fakes to combat non-consensual sexual imagery. While most states have laws protecting people from non-consensual sexual images and sexual deepfakes, the legislation varies in classification of crime and penalty.
The biggest problem is forcing the online company to remove the picture(s) from the website as the images keep spreading and the victims are retraumatized. The images also harm future employment, relationships, children etc. The criminal provisions against the person who posted the images go into effect immediately. However, online providers have a year to get their act in order.
Sweden is again ahead of the curve here in just passing a law prohibiting the purchase of “only fans” in Sweden.
One of the problems of regulating pornography in the U.S. is the definition. In Miller v. CA in 1973, the Supreme Court declared that obscenity is illegal and therefore not worthy of First Amendment protection. But what is obscenity? I know it when I see it was not sufficient.
So the court and the laws we have now focus on several questions. The first is whether the material arouses “prurient interest” – having or encouraging an excessive interest in sexual matters. That would describe at least half the males in the country if not more in my experience.
The next part of the test is whether the average person, applying contemporary state standards, would find that the item, taken as a whole, appeals to the prurient interest. For an item as a whole to be found or intended to have an appeal to the prurient interest, it is not necessary that the item be successful in arousing or exciting any particular form of prurient interest either in the hypothetical average person, in a member of its intended and probable recipient group, or in the trier of fact. It doesn’t have to turn you on.
Yet another part of the test asks if he average person, applying contemporary state standards, would find that the item depicts or describes, in a patently offensive way, sexual activity as that term is described in the law. Note the use of “state standards” because the court realized that people in the Bible Belt might find something objectionable that people in San Francisco or New York would not think twice about. We cannot let the beliefs of one small set of people determine national standards. I could go into this about MAGA, but I won’t right now.
The next question is whether the item, taken as a whole, lacks serious literary, artistic, political or scientific value. So even if objectionable, if it has those values, it is not obscenity and should be protected under the First Amendment. So medical textbooks, human diagrams, political sarcasm, artistic license, and scientific research has First Amendment protection. Remember this when MAGA is trying to ban books.
Catherine McKinnon and Andrea Dworkin drafted a statute in 1983 that defined pornography in terms of the violence, abuse, and harm done to women. It was passed in Minneapolis but vetoed by the mayor. It was passed in Indianapolis but then overturned by the court. Preventing harm to women is not a value in this society.
We know that laws will never protect women and girls from male violence. Law establishes the floor (or basement these days) of how people must act in a society or face negative consequences (except for you know who). So by the time we get to the law, the act has already occurred, and the person is harmed. The law is the last resort not the first, necessary but not sufficient.
One thing that works is separation. Women’s train cars, women’s police stations, women’s lands, women’s separate spaces – lockers, bathrooms, gyms, rape and relationship violence shelters, hospital wards, and meeting spaces. We also know that every one of these spaces ends up being breached some time or another by violent men or ideology that says women don’t need to have their own spaces
The only other thing we know that really works is equality. The countries that have more equality (women in political positions, education, employment, earning the same money etc.) have less violence. Again these are primarily the Nordic countries. In addition, we know that in Crete when they had an equalitarian society before the violent invasion of the warrior Mycenaeans whose society was hierarchal with rulers and elites, Crete had 1,500 years with no evidence of violence or warfare. More of that please.