Last month, Congress passed a new anti-trafficking bill: the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA), which will enable victims, prosecutors, and state attorneys general to hold Internet service providers liable for facilitating prostitution and sex trafficking. The bill has been supported by anti-trafficking organizations who have been engaged in a long struggle with sites like Backpage.com, which have profited enormously through the exploitation of women and girls, sold knowingly on the site via “sex ads.” Previous attempts to hold Backpage liable have failed, as litigators, civil liberties organizations, and digital rights groups like the American Civil Liberties Union and the Electronic Frontier Foundation have argued that Backpage is protected by Section 230 of the Communications Decency Act, which says that ISPs should not be held accountable for information users post on their site. In other words, if a child is sold on Backpage.com, the company, despite the fact it knowingly hosts and profits from that ad, has not been considered liable.
In order to learn more about SESTA-FOSTA, the fight to hold traffickers and websites like Craigslist and Backpage accountable for their role in sexual exploitation, and the myths currently being perpetuated by sex work lobbyists, civil liberties organizations, and the media about the new legislation, I spoke with Marian Hatcher, who is the Senior Project Manager and Human Trafficking Coordinator at the Cook County Sheriff’s Office, as well as a sex trafficking survivor herself.
Marian was featured in the Oprah Winfrey Network documentary, Prostitution: Leaving the Life; the Midwest Emmy-winning documentary, INK 180; the Shared Hope International Gang Trap series; Nick Kristoff’s A Path Appears; and, most recently, I Am Jane Doe.
She was the recipient of the 2014 Shared Hope International Pathbreaker Award, presented to individuals who have dedicated themselves to tackling the demand that drives domestic minor sex trafficking. In 2016, she was awarded the 2016 Presidential Lifetime Achievement Award for Volunteer Service from President Obama, and in 2018, Senator Richard Durbin honoured Marian on Congressional Record in his Black History month speech.
Meghan Murphy: Tell me a bit about your background on the issue of sex trafficking and your interest in this bill.
Marian Hatcher: I graduated from Loyola University in 1985 with a degree in finance, after which I worked for three major corporations — in my last position, I had a staff of 25 people. Eventually, I became a victim of domestic violence (which is a common part of the history of many survivors of prostitution), and took flight from my abuser, numbing the pain with drugs and ending up on the street. Basic survival and feeding a now full-blown drug habit made me dependent upon prostitution, then ended up with a pimp, who trafficked me. Thankfully, that led me to jail. I often say I was rescued by angels with handcuffs, never expecting exit services to be offered in a correctional setting. But I was offered substance abuse and mental treatment, intensive case management, and peer support that enabled me to heal and move forward with my life. On December 22, Governor Bruce Rauner granted me Executive Clemency, clearing my criminal history.
Over the last 14 years, my role with the Sheriff’s Office has evolved into coordination of prostitution and sex trafficking-related programming, as well as policy and legislative technical support. I sit on numerous boards and have facilitated trainings on trafficking and prostitution for various law enforcement groups including the FBI and US Department of Homeland Security.
Tom Dart, the Sheriff of Cook County, Illinois, has fought against online promotion of prostitution and sex trafficking since 2009, having sued Craigslist to seek the removal of its “Erotic Services” section as well as taking further efforts against similar companies. His efforts against these companies has been hindered by the Communications Decency Act of 1996, which will now be amended under SESTA-FOSTA, in order to allow sex trafficking victims to hold online companies accountable.
This legislation, supported by Sheriff Dart, is the first victory, providing a path to justice for those exploited online.
MM: Can you explain what this bill [the Fight Online Sex Trafficking Act of 2017 (FOSTA) and the Stop Enabling Sex Traffickers Act of 2017 (SESTA)] will do (or what it aims to do)?
MH: Congresswoman Ann Wagner’s bill, H.R. 1865 (FOSTA) passed 388–25 on February 28th. The bill was considered with an amendment from Congresswoman Mimi Walters that restored victim-centered provisions to the bill (which had been removed in December), amending section 230 of the Communications Decency Act (CDA 230) in order to allow victims to file civil actions in state courts. The amendment offered by Rep. Mimi Walters added in the language of S. 1693 (SESTA), making the critical changes to CDA 230 we were fighting for. Without the Walters amendment, the changes to the CDA would not have been included since these provisions had been removed from FOSTA by the House Judiciary Committee. FOSTA went to the Senate for consideration and was passed without amendment 97–2 on March 21st. Together, the bipartisan package [now] clarifies that Section 230 of the CDA does not prevent states and victims of sex trafficking from pursuing justice against America’s modern day slave markets. It also amends the Mann Act [which made it a felony to engage in interstate or foreign commerce transport of any woman or girl for the purpose of prostitution] to allow the prosecution of websites that promote prostitution.
In short, it is one bill with two parts. SESTA amends the CDA so that states can use trafficking laws to charge website operators in state court and gives survivors a direct civil course of action, federally, against websites that facilitated their victimization. FOSTA includes amending the CDA (by adding back SESTA language), but primarily creates new criminal penalties for website operators, to be used by the feds or by states, by expanding the Mann Act. Civil remedy for survivors can only be sought if prosecution is successful.
MM: What role and responsibility can websites have in facilitating sexual exploitation/trafficking/prostitution?
MH: There are hundreds of websites that allow ads (sometimes they even assist with ad content) to be posted that sell children and (mostly) vulnerable, marginalized adults for sex.
MM: A lot of sex work lobbyists are criticizing SESTA-FOSTA by claiming the bill harms “sex workers” by preventing them from screening clients, “negotiating safe working conditions,” and forming online communities. Some have also argued that SESTA-FOSTA will “hamper trafficking investigations by shutting down online ad venues that act as useful resources for law enforcement to identify victims.” How do you respond to these arguments?
MH: Screening for potentially violent sex buyers and assurances of safe places do not exist in prostitution. Our primary objective must be to end exploitation and prevent the harm that is inherent to those in the sex trade. While there may be some who are prostituted by choice, for the vast majority it is lack of choices that drives them into the sex trade — a trade that is violent whether it is indoors or outdoors. We can’t prioritize that “choice” over the exploitation of vulnerable people.
This illegal marketplace requires visibility in order to function. While a small piece of the sex buying market may go to the dark web, the online marketplace has to be accessible to buyers. It cannot thrive if it goes deep underground where people cannot find it.
MM: Many liberals/civil liberty organizations/digital rights groups are saying the bill endangers free speech online. Do you think there is any legitimacy to this argument?
MH: Human dignity and the right to life, liberty, and the pursuit of happiness must always supersede free speech. It’s simply the greater good. We have finally begun to put an end to a culture that considers the exploitation of vulnerable people (largely, people of colour) in our communities as inevitable, and that attempts to (wrongly so) rationalize the explosion of online exploitation as beneficial to those being exploited. We are finally saying that prostitution, trafficking, and sexual exploitation is harmful whether it occurs online or offline.
MM: What role have Silicon Valley companies like Google, Microsoft, and Facebook played in all this?
MH: While there was of course opposition by some tech companies, Oracle, IBM, Hewlett-Packard, and Facebook supported the bill. Sheryl Sandberg, COO of Facebook, was very vocal in her support of the legislation in the days nearing the vote. For those who have opposed the bill, there is clear financial incentive. In September, Senator Ron Wyden (D-Portland), who co-authored Section 230 of the Communications Decency Act in 1996, spoke against the pending amendment to the legislation. He argued that Section 230 fostered $1 trillion in economic activity and gave startups a shot in the then-emerging marketplace, allowing free speech and innovation to flourish without government intervention. It has always been about money and the free market.
MM: Why do you think these civil liberty organizations and sex work lobbyists are opposed to these bills?
MH: There is an overwhelming amount of research that shows the majority of survivors wanted to exit and that victims who are currently being exploited also want to exit. To argue that this bill will harm “sex workers” is to ignore the fact that most women and girls being sold on these websites are not doing so by choice. There is a purposeful lack of information about this fact, though. Willful ignorance and plausible deniability absolutely is a factor, here. Sex buying sites highlight the need to address the conditions that drive people into prostitution and sexual exploitation in the first place. But of course this too is about a profit motive — it’s about the ability to profit from prostitution.
The immediate actions taken by Craigslist, Reddit, Cityvibe, and Erotic Review to shut down their U.S. prostitution ads reflects role of these companies in promoting prostitution and sex trafficking. It also demonstrates the power SESTA-FOSTA has to hold them legally responsible for facilitating these criminal activities.
MM: The hashtag, #SurvivorsAgainstSESTA has been dominated by pro-prostitution rhetoric, including even from The Women’s March, which criticized the bill. But clearly, it is misrepresentative to say that survivors oppose the bill, as many survivors are actually in favour of it. What role did survivors play in developing and pushing SESTA-FOSTA forward?
MH: #ListenToSurvivors was the driving force behind the passage of this legislation, supported by courageous legislators, advocates, non-profits and the philanthropic community. In the end, they listened to our voices.
They read our letters and they gave us a voice on Capitol Hill, including survivors like myself in meetings in both the House and Senate. In those meetings we spoke our truth, drenched in blood and fueled by pain and collective purpose. They listened to survivors as we visited every member of the U.S. Congress. They listened to the voices of the bought and sold, raped, beaten, kidnapped, and murdered.
In September, they listened to Yvonne Ambrose’s testimony, who said:
“My name is Yvonne Ambrose. I am the mother of the late Desiree Robinson, and I’m asking you, the U.S. Senate, to change section 230 and support the bipartisan legislation to Stop Enabling Sex Traffickers Act. Not only for my baby, but for the protection of yours and others to come.”
Desiree would have celebrated her 18th birthday on March 29th. At 16-years-old, she was sold by a trafficker online — the john raped, beat her, and slashed her throat. She was one of at least 37 children and adults determined via statistics provided by Legal Momentum — a women’s defense and education fund in New York — to have been murdered due to sex ads placed online between 2011 and 2016.
On Tuesday, Charles McFee pleaded guilty to delivering Desiree to a pimp (Joseph Hazley) for a “finders fee” of $250 in 2016. Desiree was murdered less than a month later. Prosecutors say McFee watched Hazley, who is also charged with trafficking Desiree, create an online sex ad for Desiree.
MM: What more do you think we need to do and what more do you think can and should be done in the US, in particular, to combat sex trafficking/prostitution and assist victims/survivors?
MH: Websites shutting down or getting them actively self-policing (as in the case of Reddit) by changing policies allowing ads for paid services involving physical contact is a great start, as it makes it more difficult for buyers to buy sex. Many will buy sex less frequently or stop altogether, because buying sex will no longer be as simple as ordering a pizza online. It will also remove some of the profit incentive for traffickers by eliminating the public platforms for exploitation.
Prostitution and all forms of trafficking are a part of the #MeToo movement. The collective voices of that global movement must embrace the truth, based on research that shows the selling of human beings is an exploitative, unwanted, violent, and unacceptable practice that should be abolished.
Criminalizing the consumer (sex buyer) — the driving force of this exploitative business model — as we have criminalized traffickers (i.e. pimps) is also something we need to do in the US to tackle this problem. We also need to provide robust exit services for those who sell sex and continue to fight corporatized sex trafficking, both at the street level and online. We absolutely must normalize human dignity and respect.