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Consent is overrated: why “yes means yes, no means no” is inadequate

Date: October 21, 2011

“Consent workshops” are increasingly popular on college campuses and activist communities across the country (or is it just the pinko Northwest?) as a sexual assault prevention and healthy relationship program. They are valuable in a society where people’s clothes, sexual history, and pre-exiting relationships (i.e. being partners or spouses) are often regarded as an implicit consent, some sort of binding contract that can be enforced against one’s will.

But the whole concept of “consent” just feels too legalistic to me. To be fair, there is a difference between the notion of “consent” that is codified in law (and college policies) and those promoted by activists presenting consent workshops. Seattle University student group Break the Silence explain:

We begin by presenting the legal definitions for Washington State and Seattle University (since that’s where we’re located), which are, incidentally, exptremely similar. […] Both of the definitions below are highly problematic and do not encompass the idea of radical consent. After presenting the definitions to participants, we ask the questions “what is missing, assumed, and excluded?” and begin to break apart the definition of radical consent from, in part, Generation 5 and Common Action, and ask the same questions of it.

Legal definitions treat consent as a static agreement that is enforceable once it is freely given. The radical version, as explained by Break the Silence, goes:

Consent means everyone involved wants and agrees to be present at each step of the way. You can change your mind at ANY TIME before or during sex. Consent means that ALL parties say YES!. Just assuming someone wants to have sex is not enough–it’s not safe. Further, it is a free, fluid ongoing discussion and negotiation about what our desires are, what we want for ourselves in our lives and what we want for the people we’re either intimate with or in relationships with at any level. […]

To complicate consent is to realize that we live within an oppressive society, so consent is always tenuous. We don’t really get to consent to the country we live in, we don’t really get to consent to live within capitalism. Often times, even making a choice, yes or no, has many other implications about the choices we were forced to make before that.

I particularly appreciate the last paragraph from Break the Silence, but I think it is the main weakness of “consent”: it individualizes choices in the name of respecting self-determination, often neglecting contexts of choices we make and making us solely and individually responsible for their consequences. The language of consent is inadequate when people’s survival and well-being depends on entering into agreements, especially but not necessarily when market transaction is involved, which is why the notion of “consent” is particularly difficult for me as a sex worker activist.

Under the neo-classical economic theory, any third-party intervention preventing freely entered transactions are harmful to the parties that are involved. The logic goes: if the transaction is not net-positive for both parties, the transaction won’t happen. Therefore, stopping them from entering into the transaction harms both parties, even if they appear unfair to a third party. For example, they argue that minimum wage law harms the people it is intended to help, because it deprives employment from people whose market evaluation is below the legal minimum wage: if there weren’t minimum wage laws, people with low expected productivity can still get a job at a lower wage, rather than facing unemployment. They extend this argument to other “repugnant” transactions, such as transplantable organ trade, sweatshops, commercial surrogacy, and yes prostitution–some of which are legal under certain jurisdictions, some not, but they are all controversial.

I do not think that the transaction should be banned simply because it is problematic: after all, I consider much of the capitalist economy problematic. But even if I don’t think prohibition is appropriate–like in the case of prostitution–I think there are harmful repercussions if we treat them as unproblematic. I will say this again: prostitution in this society is a deeply problematic institution, as are marriage and capitalism.

Earlier this month I went to see Carmeryn Moore’s one-person play “Phone Whore,” which is based on her experiences working as a telephone sex operator. She intermixed her personal life and relationship with composite of actual scenarios she performed with the men who called her service, and it was quite entertaining. Some of the calls were, as you can imagine, deeply problematic, such as the obligatory incestuous scene, and white men calling to enact fantasy of being sodomized by big Black men, which she says is a major theme in her work.

Her main argument throughout the show and the discussion afterwards was that fantasies are always “okay and good.” Acting on pedophilic desires or projecting racist, homophobic (which is why the scene has to involve forced penetration, and also why they call her instead of actually calling a phone sex line for gay men), homoerotic desire to an unconsenting Black man would be illegal and/or unethical, but calling a phone sex line to explore such fantasies with a consenting operator is totally healthy and fine.

But I don’t think that they are unproblematic. I agree that judging people for their desires would be useless, and I prefer that they find outlets to explore such fantasies in safe and consensual ways (which phone sex lines are), but I still don’t feel that sexism, racism, and homophobia are “okay and good” as long as it is expressed on a phone sex line.

While I was in college I briefly worked as a phone sex operator from a dorm room. The company wanted to post pictures that supposedly represent me, so I insisted that they use an image of Asian girl: I feel fine playing the role of a skinny model with huge breasts wearing revealing clothes, but I didn’t feel okay playing any other race. Callers obviously know that the girl they are speaking to probably isn’t that model, but they went along.

Dealing with the (predominantly white, I assume) men’s fantasies about Asian women turned out to be more stressful than I had imagined, even more so than doing other forms of sex work because phone sex is so verbal. But I kept working until Student Housing for some reason decided to disconnect my phone, so in some way I was consenting to the onslaught of submissive-yet-slutty Asian girl stereotype. But it made me more conscious of comments and gaze I experience while riding bus, shopping at grocery stores, and just going about everyday things. The racist and sexist messages I experience outside of the phone sex work are less explicitly sexual in nature, but I sense that they come from the same source. To me, they are inseparable from what I was hearing while working for $0.35 per minute of logged time, and I wasn’t even being paid at all!

I can consent to engage in racially and sexually problematic conversations over the phone, but I don’t have a choice as to whether to live in a racist and sexist society. I don’t have a choice to live in a society in which food, housing, and college education is a luxury rather than a fundamental right. The appeal of sex work for some people is that it turns the master’s tools into a survival method, but it is still the master’s house that we are living in. While laws to prevent me from working on the phone sex line would be draconian, it feels very invalidating to hear someone say that all fantasies are “okay and good” when they are rooted in racism, sexism, and other social injustices.

Another way the notion of “consent” can become harmful is when consent for a specific act (often market transaction) is regarded as consenting to the social context surrounding the act as well as its consequences. The logic of classical liberalism couples choices we make with implicit and explicit personal responsibility for their consequences. In addition to blaming the victim of violence and poverty for their experiences (“you caused this”), it leads many advocates to deny agency and resilience of survivors who make “choices” that trouble us, such as abuse victims who kill their batterers, or childhood sexual abuse survivors who engage in sex trade.

These survivors are said to be suffering from “battered women’s syndrome” or re-enacting their early abuse, and therefore they should not be viewed as freely choosing to be violent or engage in illegal activities. Many self-professed advocates for youth who trade sex, for example, emphasize that the youth should be treated as victims of crime (especially sex trafficking) because they are incapable of making a choice to engage in sex trade, both because of age of consent laws and because they are “trafficked.” While this approach is preferable to treating them as delinquents and criminals, it feels profoundly disempowering and patronizing.

I argue that most people who trade sex are making conscious choice to engage in that activity, but the presence of consent should not be confused with the fairness or equity of the contexts in which such consent occurs. Nor should it be assumed that because one makes a choice to do something, that individual is solely and individually responsible for all consequences of that action.

The choice I am speaking about is the kind of choice a rape victim makes when she closes her eyes and dissociate from the sensation of her attacker’s tongue slithering on her skin so that she can stay alive. It is the choice parents make when they cross heavily militarized borders on the desert, risking their lives to give their children a better life. It is a choice that queer and trans youth make when they can’t take any more of abuse at home and bullying at school and run away to a big city instead of committing suicide.

We have many choices in life, but we often cannot choose the number and quality of choices that are presented to us or contexts in which we must make choices. That is the reality, and consent is rarely as simple as “yes means yes, no means no.” Even the radical, activist formulation of “consent” is too individualistic and legalistic, and does not differ enough from the neo-classical economic ideology of individual choice and responsibility.

Break the Silence is correct to point out that consent in a deeply unjust, capitalist society is “tenuous,” but throughout the rest of its “consent workshops,” they appear to forget this insight. For example, they list many examples of participatory exercises for such workshops, but none of them address the concern: it is as if everything would be “okay and good” as long as we learn to express and honor each others’ desires. It is not.

I’m not complaining that they are not doing a good job presenting a consent workshop; rather, I feel that this is an inherent flaw in workshops that center the notion of “consent.” There certainly is a tension between honoring each individual’s right to self-determination and recognizing that choices we make are constrained by social and economic factors that are beyond our control. There is also a practical issue, which is that consent workshops are not designed to stop people from having sex, but to do so in consensual and respectful manner. But I feel that there is a deep lack, and it becomes more of a problem when we are discussing the intersection of sexuality and market, that is the sex industry.

I support the Tantric practitioners charged with prostitution, but not on the first amendment ground.

Date: September 19, 2011

Earlier this month, Arizona authorities (which usually focus on harassing immigrants and brown-skinned people) raided Phoenix Goddess Temple and charged 30 people associated with the group for prostitution. Prosecutors allege that the Temple was a de facto brothel in which prostitutes were referred to as “sacred healers” and johns “seekers.” The Temple insists that its members practice “Tantra and Goddess worship as a religion,” calling the raid “a modern day witch hunt.”

I know what it feels like to be the target of the witch hunt (see my zine, Surviving the Witch-Hunt: Battle Notes from Portland’s 82nd Avenue, 2007-2010), and I sympathize with those who have been arrested or had close ones arrested. I do not think that they deserve to be persecuted, and believe that the charges against them should be dropped.

But I find it troubling that many sex worker activist friends are rushing to defend the Temple on the first amendment (religious freedom) ground. I am not criticizing the Tantric practitioners for invoking the first amendment in their legal defense–when you are persecuted, use whatever is within your reach to your advantage–but I am concerned that some of my friends in the sex workers’ rights movement are also using this angle.

To invoke first amendment to defend the Tantric practitioners implies that while they are good people who are simply following their religious and spiritual practices, the rest of us who trade sex for money not as a religious practice but to survive in this neo-liberalistic capitalist economy are bad whores that deserve to be punished. I don’t believe that this is what they are actually thinking, but it would logically follow from the “religious freedom” argument.

Media discourse on this topic seems to center around whether the Temple’s activities are legitimate religious practices or the Temple is merely a front for illegitimate operation. But it is the legitimacy of the State (or lack thereof) to persecute sexual healers and sex workers that must be at the focus (not to mention the legitimacy of the State to use violence to police the artificial borders drawn over indigenous and Mexican peoples’ land).

A friend told me that nonetheless this case could be a breakthrough for sex workers’ rights in the State that has become the epicenter of naked hate and bigotry in the recent years. But I feel resentful of the idea that Tantric healers are better than the rest of us who provide sexual services, and I am sick of religious entities claiming special exemptions (e.g. the religious freedom to discriminate against women and queers).

There of course is a difference between the dominant religious group imposing its doctrine on all others and a minority religion defending its practices deemed objectionable by the dominant group. But I feel uncomfortable with the strategy to distance the Temple and its practitioners from the rest of us who don’t have a neat constitutional clause to count on.

Remembering our history: Sex workers in Portland organize against draconian City ordinance, 1999-2000

Date: May 31, 2011

Below is an excerpt from my old (2002) zine, Instigations from the Whore Revolution: A Third Wave Feminist Response to the Sex Work “Controversy”. My thinking has evolved and shifted in some ways since I made that zine, but I thought it’d be interesting to share a history of sex workers organizing against the City government.

How Sex Workers Defeated Mayor Vera Katz: Information on Portland City Ordinance 14.44

In September 1999, Portland City Council passed a new ordinance (City Code 14.44) proposed by Mayor Vera Katz and the Portland Police Bureau regarding the personal escort/modeling industry. The ordinance mandated absurd requirements for anyone who worked as a personal escort or model, making her even more vulnerable to abusive customers, police abuse, and discrimination than she already was. It violated sex workers’ right to privacy, patronized their ability to make their own decisions, and seriously compromised their safety.

Local sex workers formed Scarlet Letter, a collective of workers and their supporters, to combat the city ordinance. “Workers need affordable housing, health care with dignity, and protection from mismanagement and harassing authorities,” instead of such a repressive regulation, says its press release. Scarlet Letter later submited “Sex Workers’ Wish List,” the counter-proposal to the City describing a better way to regulate escort/modeling industry.
Sex workers and their allies also waged a legal battle, arguing the City Code 14.44 to be unconstitutional. City modified the ordinance twice to increase the odds of withstanding the legal challenge, but the judge eventually sided with sex workers on March 8. Mayor Katz subsequently abandoned the ordinance.

Even though we were able to defeat this particular ordinance, we know that it could come back in a different form any time, plus sex workers across the country are fighting daily against similar legislation. The information about this ordinance is included here in order to preserve the history of sex workers’ successful organizing.

Absurd Requirements under the Ordinance

Under the City Code 14.44, anyone who works as an escort or a lingerie model must:

  • Pay $200 to get a personal escort/model permit that has her headshot.
  • Give police their finger prints. – Submit to a criminal background check–permit is denied if she has been convicted of “prostitution-related crimes” in the past five years.
  • Keep a telephone log of each customer who calls. – Show the escort/model permit to customers.
  • Sign a contract with customer before each appointment that describe specific services provided.
  • Make the phone log and contracts available to police inspection without search warrant.
  • If she works independently, she must obtain a $500 business license and comply with additional requirements.

Penalties

If a worker is caught in violation of Code:

  • It is a Class B misdemeanor ($500 fine/ 6 months in jail) to work without a permit.
  • Civil penalties of $100 (for first offense) and $500 (the second) are assessed for each “minor” violation.
  • Permit is revoked for any “major” violation, such as failure to pay civil penalty within ten days and accumulating three offense in a single year.
    Other Consequences of the Ordinance
  • Those with the history of prostitution-related convictions will be ineligible for the permit, putting them further “underground” and at the greater risk of being abused or exploited.
  • Those with fewer opportunities to become self-reliant outside of the sex industry will be trapped in poverty and government assistance.
  • When uneligible worker is abused, assaulted or exploited on the job, they will be less likely to seek police assistance.
  • The existence of public registry of workers’ personal information will make it easier for the customer to harass or stalk her.
  • Public record of escort/model permit makes it more difficult for workers to leave sex industry in the future, effectively trapping those who may wish to leave.

Sex Workers’ Wish List

The following is excerpted from Scarlet Letter’s counter-proposal to the city council as to a better way to regulate escort/modeling industry. Of course the City ignored everything we said in this, but it felt good to have a concrete counter-proposal: we aren’t saying that escort/modeling businesses don’t need regulation, but that the regulation proposed by the City was harmful to us.

  • Change the title of the permit from “Personal Escort/ Modeling Permit” to “Worker Permit” so that workers can leave the industry without the scarlet letter.
  • Use the OLCC beverage/food server application as a model of what a work permit application should look like, including the fees.
  • Have escort/models obtain the permit from the Bureau of Licenses and Multonomah County Health Department, instead of Portland Police Bureau.
  • Require escort/modeling business management to have a working relationship with Health Department. Raise the standard of awareness of how to decrease one’s risk at the job site. Require job training that addresses disease prevention, safety issues, and current laws that pertain to sex work.
  • Hold the management accountable for proper security measures at the job site.
  • Remove any unnecessary personal information from the permit application.
  • Issue a certificate instead of a photo ID as the permit.
  • Remove the automatic rejection of a permit if individual was convicted of a misdemeanor (i.e. prostitution) so that they can engage in sex work legally.
  • Police should not be allowed to enter one’s residence without a search warrant.
  • Change the punishment of working without a permit to a fine, rather than a misdemeanor.
  • Remove unreasonable requirements that escort/models keep the customer’s phone numbers in a log for Police to inspect, and sign a written contract with the customer before each appointment.

Timeline of Our Struggles

September 22, 1999 – City Code 14.44 is introduced by Mayor Katz and the Portland Police Bureau. No sex workers are informed of the proposal.
September 29, 1999 – City code 14.44 passes the City Council with no objections.
November 1, 1999 – First meeting of Scarlet Letter. Open only to workers.
November 8, 1999 – Second meeting of Scarlet Letter. Open to all supporters.
November 14, 1999 – Sex Workers’ Masquerade, a fundraiser for Danzine and Scarlet Letter campaign.
November 15, 1999 – Third meeting of Scarlet Letter, to which a Willamette Week reporter showed up to write an article.
November 17, 1999 – Scarlet Letter speaks out at the City Council.
November 23, 1999 – Emi hosts a panel discussion on sex work at Portland State University, which turned into a pep rally for Scarlet Letter.
December 15, 1999 – Lawsuit is filed to block enforcement of the ordinance.
January 26, 2000 – Scarlet Letter presents the “Sex Workers’ Wish List” to the City Council. Emi was almost arrested for holding up a sign in the Chamber. City Council makes a minor modification to the ordinance, but ignores us for the most part. Willamette Week runs a story that is somewhat favorable to sex workers.
February 4, 2000 – First hearing of the lawsuit against the ordinance.
February 22, 2000 – Judge declares the ordinance invalid under Oregon constitution.
March 8, 2000 – Mayor Katz abandons the ordinance. WE WON!!!!

Emi’s Final Comments

1. It is frustrating that the only thing that stopped the ordinance from being enforced was the constitution. I mean, we worked with the media, tried to educate the City Council, went to City Hall many times, called up people, and even worked with the Multnomah County Health Department to come up with an effective alternative to the ordinance so that the escort/modeling industry is regulated just like all other industries–and the only thing that actually worked was a judge’s order. I guess that’s how the system works in this lawsuit-obsessed country, but I’m really sad that City Council absolutely refused to think, even for a second, that perhaps the Vice Unit of the Portland Police Bureau may not be the expert when it comes to the sex industry.

2. I’m annoyed by the “sex radicals” who celebrate sex workers as strong independent women (or men, or whatever) while neglecting the real suffering of people who are being exploited or abused within the sex industry. And I’m also annoyed by the radical feminist I spoke with who told me how much money sex industry is costing tax payers and how many abortions are taking place as a result of the sex industry as a way to demonize it.

My goal is to empower everyone working in the sex industry, whether they are engaged in commercial or survival sex so that people who wish to leave can have other realistic options and people who wish to stay can have safer, better working environment. So all sex radicals and radical feminists–stop arguing and do something already.

3. Initially, I thought that this ordinance is about inhibited sex moralists versus us freakish folks. In fact, that’s how all the media reported it. But it was not. The reality is that this is not about morality, but is about business owners versus workers. I realized this as I was talking with the City officials.

In fact, it is not true that the City did not consider the legitimate needs of the industry while drafting this ordinance: they talked with people who run the businesses although not the people who work for them, which makes me think that the interests of the owners and managers–but not those of workers–are reflected in the ordinance.

The ordinance would have made it much more difficult for women to work independently without a pimp–which is exactly what the owners and managers want, because it would wipe out the competition for their businesses. The ordinance was never intended to hurt these businesses; the City was trying to enact a system in which workers are under the control of pimps and pimps are under the control of the Police Bureau.

4. Escorts and models still do not have the protection they deserve within the industry. Now that the ordinance is struck down, City of Portland should join Multnomah County in working with us to develop a real regulation that would protect safety and rights of workers. If they don’t–well, everyone who has ever consumed adult entertainment (which is pretty large number of people) should refuse to vote for the current City Council members when they come up for re-election!

European Court case over reproductive rights in Poland deals with the selective abortion of a fetus with Turner’s syndrome

Date: May 27, 2011

On May 26th, European Court of Human Rights ruled in favor of a woman in Poland who was systematically denied the opportunity to receive and find out the result of diagnostic test for her fetus in time to selectively abort the fetus. Pro-choice activists celebrate the ruling as a victory for the women’s right to choose.

But the fetus’ condition in question is Turner’s syndrome, which is hardly a deadly disease or totally debilitating condition. According to Turtle Bay and Beyond, a international law blog (from the Religious Right perspective, which I disagree with–but I’m just citing them for factual information) :

The applicant, Mrs R. R. gave birth to a girl suffering from “Turner Syndrome”, a chromosomal abnormality affecting girls, whose symptoms are generally a short stature and sterility. She unsuccessfully requested the prosecuting authorities to institute criminal proceedings against the physician involved in handling her case. Mrs R. R. claims that she has been subject to degrading treatment (art. 3) since she was unaware of the health of her pre-born child and was denied the genetic tests in a timely manner.

I am preparing to travel to San Francisco in four hours so I don’t have the time to fully analyze or respond to the case, but I just want to point out that there is a complicated history of dialogues between reproductive rights movement and disability movement over cases like this, which appears to be completely ignored in the celebratory tone of the pro-choice groups’ responses.

Without going into whether or not a woman’s right to choose extends to the right to selectively abort fetuses on the basis of its real or perceived disabilities (or sexual orientation, etc.), pro-choice activists need to recognize that this is a complicated matter and take special care not to imply that people with Turner’s syndrome or other conditions and disabilities do not deserve to live.

Further, if we truly believe in women’s right to choose, we need to work toward eliminating societal barriers to raising children with various conditions and disabilities or to living with such conditions. The birth of a child with Turner’s syndrome does not need to be a tragedy to be avoided at all cost.

My Tikkun article about Uganda and the U.S.-based LGBT activism, plus my Uganda flier

Date: May 10, 2011

Uganda’s pending passage of the anti-homosexuality law is in the news these days, so I thought I’d post a link to the article I wrote for Tikkun magazine about how U.S. LGBT activists and allies are engaging in the whole controversy and what they could be doing instead.

The Uganda Controversy: Solidarity vs. Imperialism in LGBT Organizing
by Emi Koyama
Tikkun magazine, July/August 2010

Also, below is the text of the flier I handed out at the Beaverton, Oregon rally against the anti-homosexuality bill which I talk about in the article above.

North-South Disparities Kill More Gay Ugandans Than Anti-Gay Legislation Ever Could.

Many of us rightfully feel angry and scared about the proposed legislation in Uganda that would prescribe punishments up to death for the “crime” of homosexuality. But when activists and politicians begin calling for economic sanction against the country of Uganda, we must consider its consequence on Ugandan people, including gay, lesbian, bisexual and/or transgender Ugandans.

Uganda’s economy (like our own) is dependant on foreign trade, and an economic sanction could result in more gay Ugandan casualties than the proposed legislation could ever match: is it truly worth the cost? Who decides? Who put the U.S. in the position to impose its values on others by military or economic force?

And if there were such an outpouring of support for gay Ugandans, where were they when much of the country was (and still is) struggling in poverty, partly caused by the enormous international debt? Where were they when gay Ugandans needed medical treatment and educational opportunities? Or the right to migrate to the (relative) safety in the United States?

In short: are we truly concerned about the rights and lives of our brothers and sisters in Uganda, or are we simply playing our part of the imperialist U.S. foreign policy? If we are, consider the following:

  • Support elimination or deep reduction of unpayable international debt.
  • Support continuation of international aid and economic exchange.
  • Support the expansion of fair trade.
  • Confront American conservative groups that spread hate here and abroad.
  • Strengthen international human rights standards by holding the U.S. government accountable to them (death penalty, overreliance on prisons, etc.)
  • Promote respectful engagement and dialogues with countries whose policies we find objectionable.
  • Expand cultural exchanges (including Southridge High School’s sister school program).

This message is not endorsed by the organisers of today’s rally. We are a small group of activists, students and scholars and we speak only for ourselves. We welcome your responses and opinions at emi AT eminism DOT org

Support Engagement, Not Sanction.

Trimet treats paratransit riders, but not regular bus or train riders, as thieves.

Date: May 2, 2011

Dear Trimet,

I am a LIFT paratransit rider and I am writing to express my concern about Trimet’s recent change of policy or its decision to enforce the previously unenforced policy to require LIFT riders to print their names on the back of their monthly passes and LIFT drivers to verify that the name on the pass matches the name of the rider.

The LIFT driver informed me that the change was made due to a concern that some people are sharing their monthly pass among each other, depriving Trimet of fare. I was further told that I would be reported as not having paid my fare even if I am waving a pass in their face, thereby threatening my transportation in the future, unless I write my name on the back.

I find it annoying and disturbing that Trimet would treat paying riders as thieves and free-riders until proven otherwise, but that is not my main complaint.

My main complaint is that this policy discriminates againt people with certain kinds of disabilities because people traveling on regular route Trimet buses and light rail trains are not burdened with such request. Regular bus riders could share a bus pass among themselves and they will never get caught, or asked to prove that they have actually purchased the pass.

The policy singles out paratransit riders–by definition people with certain types of disabilities–and subjugates them to an increased level of scrutiny that people who do not have these types of disabilities, even though they are equally capable of abusing their monthly passes.

If pass-sharing is indeed a serious problem, Trimet must enforce this policy equally to all of its riders, rather than singling out people with certain types of disabilities. Otherwise, Trimet should terminate the policy and stop putting paratransit riders under greater scrutiny than it does to all other riders.

Please know that I have signed my May 2011 monthly pass as “Rosa Parks,” so it will not match my real name. I will also encourage other people I know who use LIFT to sign their passes as Rosa Parks as well.

Memo: Data from FBI’s Innocence Lost Initiative and Operation Cross Country

Date: April 24, 2011

So I was reading up on FBI’s Innocence Lost Initiative and “Operation Cross Country”–somewhat periodic nationwide sting operation targeting prostitution (well the goal is to target commercial sexual exploitation of minors, but a lot of adult prostitutes get caught up in it) in preparation for (you may have guessed it) my upcoming sine about the fraud that is the U.S. anti-trafficking movement. FBI does not publicly release all its data, so it’s hard to understand the full impact of these sting operations.

Below, you will see information about each of these nationwide stings that I can gather form FBI’s own celebratory press releases. I put the data into a table for my own convenience, and I thought I’d share with my readers just in case someone is interested. Data correspond to results of Operation Cross Country I thru V, plus a precursor to Operation Cross Country (labeled “0”).

Spotty Data from FBI’s Operation Cross Country sweeps
Source: FBI press releases

  Date City Rescues Arrests Rescues TD Convictions TD
0 12/16/2005 14 30 19   67
1 6/25/2008 16 21 389 433 308
2 10/27/2008 29 49 642 (73 pimps, 518 pros) 577 365
3 2/23/2009 29 48 571 670  
4 10/26/2009 36 52 700 (60 pimps) 900 510
5 11/8/2010 40 69 885 (99 pimps) 1200 625

Date = Date the operation was announced in a press release. Typically, the stings take place during the 72 hours before the announcement.
City = Number of cities in which stings took place.
Rescues = Number of minors FBI claims to have “rescued.”
Arrests = Number of arrests made. This may include adult prostitutes, clients, as well as pimps (FBI doesn’t fully disclose the breakdown).
Rescues TD = Number of minors FBI claims to have “rescued” to date since Innocence Lost Initiative began.
Convictions TD = Number of convictions FBI claims have resulted from Innocence Lost Initiative.

Some comments:

1) If OCC II is any indication, the nationwide sweep affects adult prostitutes in far greater numbers compared to youth on the street, johns/clients, or pimps (642 total minus 73 pimps and 518 pros leaves 51 arrests unaccounted, which I assume are johns).

2) On average, OCC results in the “rescue” of one or two minors in each city where stings are conducted. Sure, that may be “one too many,” but it doesn’t strike me as an evidence for a shockingly large epidemic. Anti-trafficking groups would have us believe that there are hundreds of thousands of teenagers being exploited in the sex trade, but these stings either casts serious doubt in their claim, or FBI and local law enforcement officials are totally incompetent.

3) I’m having difficulty believing that 73 pimps were arrested for trafficking 49 minors, or 60 pimps for 52 minors, or 99 pimps for 69 minors. Are they counting pimps who control adult prostitutes? Or are they labeling friends and family members of trafficking victims as “pimps” automatically–as the legal definition of pimping includes anyone who benefit from the earning of prostitution, even if they are not the traffickers? More disclosure would help me understand this data.

4) In fact, more data overall would be helpful, for example: breakdown of arrests (youth/adult, worker/client/pimp), and what happened to each group of people after their arrest. How many “pimps” are actually minors also? How many people are arrested on drug and other charges during the sweep–which often police officers do to coerce women to testify? How many of the convictions are for pimping and trafficking, compared to johns? (FBI boasts “these convictions have resulted in lengthy sentences, including multiple 25-year-to-life sentences”–the choice of the word “multiple” leads me to think that they probably have perhaps two or three such victories…)

Does anyone know if it’s possible to obtain more detailed data, including all the above plus the breakdown of different cities? Is there any researcher (i.e. someone who has more professional credibility than I do) interested in submitting a FBI records request (and share the result with me)? Now’s the time to take advantage of your class and social status privilege!

Text of the flier holding journalist Mika Tsutsumi accountable for her endorsement of the racist/xenophobic agenda in Japan

Date: April 14, 2011

Note: Following is the text of a flier I made in preparations for Japanese journalist Mika Tsutsumi’s scheduled talk at Portland State University on April 14, 2011. I found out on the day of the talk that it had been canceled, so the fliers were never handed out.

For those of you who don’t know: Ms. Tsutsumi is the author of “United States: Poverty Superpower” and other books that expose social and economic problems within the U.S. for the Japanese audience, and is considered very liberal/progressive. However, in this particular case she aligned herself with the racist/xenophobic nationalist camp that target immigrants and migrant workers.

*****

Until 2008, Japanese law did not grant birthright citizenship to children born to a Japanese father and a non-Japanese mother unless they are legally married.

This “loophole” mostly affected children of temporary migrant Filippina women who work as “hostesses” serving alcohol to Japanese men at clubs. The legal situation was convenient for Japanese men who seek extramarital affairs with these women without taking any responsibility for the consequences: both the women and their children disappear from Japanese men’s lives as they are forced to go back to the Philippines or wherever the women came from. Children are sent back to an unfamiliar country with unfamiliar culture and language without any financial or other support from their Japanese father.

In 2008, the Supreme Court of Japan ruled this part of the citizenship law unconstitutional, and demanded that the legislature fix the problem. All major parties endorsed the change to the citizenship law, while a small but vocal group of right-wing nationalists (mostly organizing in the social media) argued that granting citizenship to children born to foreign mothers would result in massive citizenship fraud and the foreign (often claimed as “Chinese”) “takeover” of Japan.

Journalist Mika Tsutsumi, along with her husband and member of the Parliament Ryuhei Kawada, joined with the right-wing nationalists to lead the opposition to amending the unconstitutional citizenship law. Tsutsumi warned of the “dangers” of historic proportion eroding Japan’s sovereignty if the law were to be changed, while Kawada specifically insisted that the immigration law’s impact on Japanese unemployment must be addressed before proceeding with protecting the rights of the children whose citizenship rights are unconstitutionally denied.

By the end of 2008, the change to the citizenship law passed both houses of Parliament by overwhelming majority (with Kawada and a few right-wing politicians opposing it). Contrary to the racist/xenophobic arguments in opposition to the change, there have been no report of massive citizenship fraud, or foreign “invasion” of Japanese homeland in the three years since the change.

Ask Ms. Tsutsumi to investigate and report how her own claims regarding the citizenship law hold up with the reality. And if they don’t–which, they don’t–demand that she make a public statement regarding her endorsement of the racist/xenophobic nationalist agenda in Japan. That is her responsibility as a journalist.

City exempts prostitutes (and trafficking victims) from civil forfeiture–First step toward decriminalization?

Date: October 28, 2010

This Wednesday, Portland City Council passed an emergency proposal that modified civil forfeiture ordinance to dedicate funds and assets seized in prostitution-related crimes to pay for services for victims of trafficking (see OPB News). The change would allocate 75% of the funds for such services, while 25% go toward law enforcement’s anti-trafficking effort.

The move seems to be symbolic, as forfeiture from prostitution cases do not bring in that much money, although the City and the police refuse to give a specific figure. City Commissioner Dan Saltzman and the local media applaud that it would take away assets from pimps and halt their operation, even if just temporarily, but that is not likely, since pimps almost never get arrested at all (I understand that less than five such cases have been persecuted in the last several years).

But perhaps the most significant change in the ordinance is how it exempts “victims of trafficking” from having their assets forfeited. The new city code will read (with the changed portion in bold):

Conduct involving violation of solicitation to violate, attempt to violate or conspiracy to violate any provision of ORS 167 .002 to 167 .027, excluding 167.007(a) is hereby declared to be prohibited conduct, and any property that is used to commit or which is proceeds of the prohibited conduct is hereby declared to be subject to forfeiture, as limited by the provisions of 148.50.020.

What is ORS (Oregon Revised Statute) 167.007(a)? Here’s the full text of ORS 167.007:

167.007 Prostitution

(1) A person commits the crime of prostitution if:

(a) The person engages in or offers or agrees to engage in sexual conduct or sexual contact in return for a fee; or
(b) The person pays or offers or agrees to pay a fee to engage in sexual conduct or sexual contact.

(2) Prostitution is a Class A misdemeanor.

In other words, even though Commissioner Saltzman’s office explains that the change is intended to protect “trafficking victims” from civil forfeiture, the exemption applies equally to everyone who is targeted by 167.007(a)–that is, anyone charged with the crime of prostitution for engaging in or offering or agreeing to engage in sexual conduct or sexual contact in return for a fee.

I am generally concerned with the conflation of prostitution and trafficking (i.e. regarding all prostitutes as victims rather than people making difficult choices under difficult circumstances), as it leads to paternalistic interventions that diminish options for many women involved in prostitution rather than enhancing them, but this is a case in which the conflation actually benefits sex workers.

But why stop here? If the City believes that all prostitutes are victims and should not be penalised by having their assets forfeited, they certainly shouldn’t be penalised by being imprisoned, having children taken away, etc. Perhaps the new ordinance approved this week could be a first step toward decriminalizing 167.007(a) not necessarily because prostitution should be legal (we can agree to disagree there), but because it is not fair to punish women engaging in prostitution.

Recommendations on Medicaid funding of surgeries for intersex individuals

Date: July 23, 2010

Recommendations for Colorado Department of Health Care Policy and Financing
Re: Medicaid Funding for Remedial Surgeries for DSD

Emi Koyama
Director, Intersex Initiative

My name is Emi Koyama and I am the director of Intersex Initiative, a national advocacy organization for people born with intersex conditions, or disorders of sex development (DSD) as they are referred to within the medical community.

I have studied the draft Colorado Medicaid Policy titled “Disorders of Sexual Development (DSD or intersex) Surgical Remediation,” and wish to offer following recommendations.

1. First thing first: the correct medical term is Disorder of Sex (not “Sexual”) Development. (And when not referring by this established medical terminology, I prefer to use “anomalies” over “disorders.”)

2. Philosophical statement must make a clear distinction between “gender assignment” which is a social and legal determination of one’s sex of rearing, and surgical reinforcement of the assigned gender. The controversy is not whether or not children should be assigned gender: it is whether social and legal assignment of gender should be accompanied by cosmetic surgical alterations of the child’s genitalia before the child is old enough to be involved in the decision-making. I believe not.

3. The philosophical statement also seems to presume that the main risk of early cosmetic genital surgeries is the accidental assignment of the “wrong” gender. While this is a major concern, it is not the only one. Any surgeries on such sensitive areas risk damaging the child physically, psychologically, and sexually–which is why advocates argue that they should not be performed without the child’s participation, unless of course there is an urgent medical necessity. Perhaps Medicaid is not able to take either side of this controversy at this point, but critics’ concerns should be accurately reflected in the document.

4. I applaud the draft for acknowledging the need for multidisciplinary approach to treating children with DSD. That said, if Medicaid were to recommend multidisciplinary team to care for these children, it must also provide payment for counselors, psychologists and social workers who will assist patients and parents as part of the multidisciplinary team. Counseling for parents or other caregivers is a critical part of providing competent care for children with DSD.

5. Some surgeries performed on children with DSD result in sterilization. The policy statement should specifically require any parent or physician seeking these surgeries to be extremely cautious and abide by all existing State laws and Medicaid regulations on sterilization on minors or legally incompetent people in order to protect the rights of children with DSD.

6. Medicaid is mandated to cover out-of-state medical expenses as well as travel expenses for the patient and the accompanying parent if providers with adequate experiences or specialization in the specific procedure being prescribed cannot be found in the State Medicaid system. The policy statement should include this information instead of simply stating that “The provider must be enrolled with Colorado Medicaid.” Further, funding for in-state medical travel should be included as well if a qualified provider cannot be found in the immediate area where patient and his or her family live.

7. “Gender transformation surgery” does not encompass a wide range of surgical procedures performed for children with DSD with or without the assent of the patient (e.g. vaginoplasty for a female with DSD does not transform her gender in any way, but simply reinforces it). The statement should state that all medically recommended surgeries are covered, preferably with the assent of the patient himself or herself, in addition to the “gender transformation surgery.”

8. I support Colorado’s leadership in acknowledging that “gender transformation surgery” should not be rushed at the time of birth. However, the timing of the surgery should not be limited to just two options (at birth or at puberty). At minimum, Medicaid should cover such surgeries that take place anytime in the patient’s adolescence and even young adulthood, allowing full time for the individual to explore and develop a sense of who he or she is.

9. The sentence denying coverage for “trans-sexual surgery” is unnecessary and potentially harmful. The next revision of Diagnostic and Statistical Manual of Mental Disorders (DSM) is expected to change the definition for Gender Identity Disorder (which is associated with transsexuality), allowing children and adults with DSD to be diagnosed with Gender Incongruence (a new name for GID). In other words, a child may be diagnosed with both DSD and GI, which puts two sentences in this policy statement (coverage for “gender transformation surgery” for children with DSD and denial of coverage for “trans-sexual surgery”) in conflict with each other.

Besides, whether or not Medicaid covers sex reassignment surgeries for transsexual people should be specified in a separate policy statement, and is irrelevant to the issues addressed in this statement. I believe that it is quite sufficient to state that “Gender transformation is not covered under this policy when the diagnostic criteria for DSD are not met.”

(Also, I fully support Medicaid funding for sex reassignment surgeries for adult transsexual people who seek them. I understand that this discussion is not the time or place to advocate for such policy change, but we cannot in good conscience be completely silent about the struggle of our transsexual friends and allies, many of whom have advocated for intersex rights.)

Thank you very much for giving me an opportunity to make these recommendations. I am also sending you a copy of the draft statement with suggested edits. Please feel free to contact me if you have further questions, as I would be delighted to provide more information.

Anne Tamar-Mattis, a California attorney and the executive director of Advocates for Informed Choice, said that she is also available to answer any questions. Her phone number is XXX-XXX-XXXX and email address is XXX@XXX.XXX. In addition, Nancy Ehrenreich is a Professor of Law at University of Denver’s Sturm College of Law, and is knowledgeable about legal issues surrounding surgical treatment of children with DSD. Her phone number is XXX-XXX-XXXX and email address is XXX@XXX.XXX. They may be able to offer further insights that I am missing.

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