Craigslist bows to states' pressure, axes "Erotic Services"

This week Craigslist announced that, pursuant to a deal with several state attorneys general, it will be eliminating its "Erotic Services" section. The news media have framed the pressure on Craigslist as a response to recent crimes against people who used the site. Connecticut Attorney General Richard Blumenthal, who spearheaded the effort, has pitched his campaign alternately as aimed at preventing trafficking and child exploitation, and as a plain morals campaign against "pornography, nudity, and open offers of sex for money." Craigslist initially vowed to require posters on Erotic Services to enter credit card information, but the state officials wouldn't settle for that, so the site is no replacing the section with a new "Adult" section, in which each post will be pre-screened by Craigslist employees.

A coalition of organizations advocating for sex workers released this statement:

With Craigslist’s recent announcement that its Erotic Services category will be discontinued within the week, hundreds of thousands of erotic service providers will become more vulnerable to dangerous predators. Eliminating erotic listings as Connecticut Attorney General Richard Blumenthal and others propose will only drive us further underground.

Policing the masseuses, phone workers, pro-dominants, and escorts using Craigslist fails to protect those of us who are coerced into the sex industry. Preventing the use of Craigslist advertisements also eliminates the advantage of screening clients online, which makes for a safer work experience by filtering out potentially dangerous individuals. Furthermore, keeping us offline hinders police investigations of violent crime. In the Boston murder of Julissa Brisman, it was online tracking that enabled the police to identify the suspect. One has to wonder: are the Attorneys General examining the evidence or simply enforcing their moral values?

“Removing the erotic services category from Craigslist does not help prevent violence against escorts and other sex workers. It only pushes me and people like me out of the places where advertising is available,” said Jessica Bloom, a sex worker from Sex Workers Action New York (SWANK). In the face of increasing criminalization, we insist upon respect. As mothers, daughters, brothers, and members of your community, we claim that sex work is real work, work that we are entitled to conduct in safety. As such, we must be accorded the human right of full protection under the law.

Sex work activist Miss Calico has this to say about the move:

It’s true that Craigslist is a major advertising venue, for prostitutes but also sex workers of all kinds: the largest in the nation. Its loss will have a distinct effect on the people who use it. Here’s how it works: we advertise to attract the clients we want, and screen to eliminate the clients we don’t, but the number of clients we need stays the same. Anything that hurts our methods of attracting clients, like the shutdown of Erotic Services, will affect how stringent our screening can afford to be. It’s pretty clear to me that Craigslist has just made its sex workers more marginalized and more at risk.

Now, Craigslist has no responsibility to provide an advertising venue. But if Attorney General Richard Blumenthal is trying to make sex workers safer, he’s going about it all wrong. He doesn’t need to protect us from ourselves, or from our clients. He needs to protect us from criminals.

At the Sex 2.0 conference this past weekend, Melissa Gira analogized the panic over Craigslist to New York City's "cleanup" of Times Square. Both spaces came to represent the threat of sexual corruption encroaching on "normal," "decent" places. Targeting these spaces allowed politicians to simultaneously appear to be both protecting moral purity and addressing real social problems of crime, etc., without really addressing those problems at all. As Miss Calico points out, sex work isn't going away, and the short term effects of driving online sex work advertising "underground" -- at least until some other site replicates the efficiency, anonymity and ubiquity of Craigslist -- could be harmful both for sex workers and for law enforcement.

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As a side note, none of the news reports or press releases indicate what kind of legal claims the state governments might have had against Craigslist. I've previously mentioned the question of federal immunity under Section 230 of the Communications Decency Act with regard to a still-pending public-nuisance suit targeting "Erotic Services." The Ninth Circuit Court of Appeals recently held, in an egegrious case of revenge porn, that Yahoo! might have lost its 230 immunity only because its staff specifically promised the plaintiff to take the offending material down.

UPDATE: Here's some further analysis of Craigslist's likely legal defense under CDA from the Electronic Frontier Foundation. (More, too, from the Citizens Media Law Project which notes the site's previous efforts to ensure Erotic Services isn't use to exploit children.) Of course, settlements like this are based not only on likelihood of success but on business decisions about public relations and litigation costs. They have previously won litigation over discriminatory preferences in their housing ads, but that doesn't mean they're eager to go through the process again. Ditching Erotic Services was clearly more desirable for Craigslist than fighting several state governments in court and in the media.

Sex 2.0 and "I Am a Sex Worker" PSA

I attended the Sex 2.0 conference in Silver Spring, MD this past weekend, and it was an absolute blast. It was great to meet bloggers and activists I admire (like Elizabeth Wood), catch up with my college classmate and former sex-educator colleague Maria Diaz, see a lot of other familiar faces, and share in discussions of the Internet, social media, sex blogging, erotica, sex work, and sexual freedom activism. One of the many cool things I was turned on to was CARAS, an organization of academics that supports and promotes community-based research on alternative sexualities. Another was this awesome PSA from Sex Work Awareness:

Law imitates art? The misplaced fixation on surgical status

Two things have bothered me lately, and it occurred to me that they are connected. One is the difficulty of persuading judges to find for plaintiffs in transgender discrimination cases, particularly in cases involving disputed bathroom use. The other is the overwhelming tendency of pop-culture representations of gender transition to focus on reassignment surgery as the central and defining change, the sine qua non of authentic gender.

As to the latter, I could cite countless examples - including a number of works which I otherwise quite liked, such as Chris Bohjalian's novel Trans-Sister Radio, and the Oscar-nominated film Transamerica. There has been a proliferation of documentaries about trans people in recent years, with most of them reproducing the same medically-focused narrative about the transition process, with surgery as the narrative focal point. Heck, the only two musicals with transgender protagonists both feature titles that refer to the lead character's genitals. More generally, news and entertainment media regularly refer to gender transition reductively as "having a sex change operation," or "preparing for a sex change operation." The terms "pre-op" and "post-op" are thrown around ubiquitously in contexts in which they have no real relevance.

This focus on surgery has been criticized for presenting a distorted view of trans people's experiences. As I've discussed elsewhere, there are any number of reasons -- financial, medical, religious or deeply personal -- why many trans people cannot or choose not to have surgery. Even for those who do, it is often delayed for many years for financial reasons -- insurance coverage for it is rare in the U.S. -- meaning that people lives years and even decades of their lives between a(n otherwise) completed transition and surgery. Perhaps more to the point, surgery is simply not the most important part of the process for most people, even those who eventually have it. After all, in comparison to hormone therapy or other changes, "bottom" surgery makes a less dramatic difference to an individual's overall appearance or experience of their body, and (except in a few delicate situations) makes no difference in an individual's ability to blend in with other members of their (post-transition) gender.

Nevertheless, the dominant discourse on transition says that transition = surgery, and without surgery transition is incomplete or simply has not occurred. This discourse originated in the mid-twentieth century with attempts by both trans people and medical professionals to justify gender transition, against McCarthy-era moral condemnation and disgust, by appealing to society's trust in medical science. (As well as providing reassurance that trans people were not "homosexual." Christine Jorgensen, the first publicly-known transsexual in the US, underwent her highly publicized transition at the height of the 1950s antigay witchunts.) Though since much revised by both trans people and the medical professionals who work with them, this dated and rigid understanding remains overwhelmingly dominant in public perception. What most people know about gender transition comes from surgery-focused pop-culture representations.

Thus, both political and judicial decisionmakers almost invariably start from this ingrained premise. Arguably, pop-culture discourse and legal standards for gender recognition in the context of birth certiciates, drivers' licenses, etc., reinforce one another. Although unspoken, both sources inform decisionmakers in settings that seemingly have nothing to do with legal documentation per se.

Much of the difficulty in workplace discrimination cases, therefore, owes to the fact that employers' demands that restroom use be based on genitals tend to strike judges as so obviously common-sensical that it is very hard to dislodge that notion from their brains. Kastl v. Maricopa County Community College shows the result: uncritical judicial acceptance of justifications by employers that would be obviously flimsy were they not colored by this starting premise.

All of which is to say that representation matter. To criticize a filmmaker for an excessive focus on surgery is no mere aesthetic quibble or personal peeve. It is no surprise that the feminist movement has long devoted considerable attention to cultural criticism as well as more conventional political advocacy. These representations of gender transition in entertainment and news media, as I see it, cumulatively have real, harmful consequences.

Exempting minors from child pornography laws?

Following up on yesterday's post:

Thomas MacAulay Millar, whose post on the Wyoming County, PA case over at Yes Means Yes! I linked yesterday, suggests adding the following exemption to the federal child pornography law (18 USC 2252):

(d) Notwithstanding the foregoing, no person shall have committed a criminal act within the meaning of this section solely by reason of having possessed, transported, shipped, or received a visual depiction wherein the person himself or herself is the only minor depicted.

This makes sense to me. It means that a minor would never be prosecuted for "child pornography" based on depictions of him- or herself. Any adult involved in the production or distribution of that material could still be liable, and minors could still be liable for material featuring other minors. But it would eliminate situations like this, reported Wednesday in New Jersey (h/t DailyKos):

CLIFTON — A 14-year-old girl faces child pornography charges after she allegedly posted nearly 30 nude pictures of herself on a social networking site, authorities said.

Detectives with the Passaic County Sheriff’s Department’s Internet Crimes Unit arrested the teen Tuesday. The National Center for Missing and Exploited Children contacted sheriff’s detectives about someone posting photos of an underage nude girl on a MySpace profile. The center, which monitors social networking sites for illegal images of children, contacted county detectives through the State Police’s Internet Crimes Against Children Task Force, said Bill Maer, the sheriff’s department spokesman.

Following a month-long investigation, detectives discovered that the person posting the pictures was the same person featured in them — the 14-year-old girl. Anyone who was “friends” with the girl through MySpace or knew her full name could have accessed the photos.

The teen was charged with one count of possession of child pornography and one count of distribution of child pornography. She was released into her mother’s custody, Maer said.

The teen reportedly told police she posted the pictures into a photo album for her boyfriend’s enjoyment. More arrests may be forthcoming, Maer said.

It's worth noting that while the National Center for Missing and Exploited Children initially flagged these photos for police, an NCMEC attorney recently criticized the practice of prosecuting minors in cases like this. As these prosecutions and threatened prosecutions continue to multiply, I think the case is building for building exemptions into child porn laws for cases like this. Fixing the federal law would just be a start, however, since to date I believe all the reported cases of this phenomenon have been at the state level.

Thomas's proposed exception wouldn't entirely solve the problem, as I see it; in a case like the Pennsylvania one, where three girls took pictures together, the minors could still be charged based on one another's participation. Putting aside that the material in that case was clearly legal, such a scenario, where multiple minors are each charged with victimizing one another, seems equally unwarranted. This would call for a more complex exemption - one that still allows for prosecutions of minors who are truly exploiting other minors - and how to draft it isn't immediately obvious to me. Additionally, if an exception is warranted for the child porn laws in multiple-minors situation like this, you'd presumably need to write a similar one into "sexual exploitation of a minor" statutes, since there's significant overlap between the two sets of laws.

This could be a sticky wicket, but the issue does need serious consideration. Prosecutions like this are to my mind unconscionable. As Thomas wrote yesterday:

Let me say this loud and clear: charging young women with sex offenses for distributing photographs of themselves is social control by intimidation. It ruins young women's lives to make an example of them, to keep others in line.

(As a side note: where did the media come up with the term "sexting"? It's catchy in a garish soundbite sort of way, but it makes no sense: it's meant to refer to sending pictures, not text.)

OT: The unbearable luridness of abstinence ed

There's much to be said about stuff like this:

I'll only add: that looks more than a little kinky to me.

Racy texts don't kill people, sexual shaming does

I've previously discussed the unsurprising trend of teens sharing racy pictures of themselves and each other via email and cell phones (and the rather more surprising trend of teens being prosecuted under the child porn laws for it). The topic is getting a lot of sensationalistic coverage - complete with the trendy moral-panic-tastic term "sexting" - right now because of the suicide of a young Ohio woman.

Elizabeth at Sex in the Public Square has this to say:

I'm furious about the way this young woman's story is being reported. Jesse Logan killed herself last July not because of the "dangers of sexting" but because of the dangers of sex stigma and "slut shaming." She had sent some naked photos of herself to her boyfriend by cell phone. When they broke up he showed those photos to other people at their high school. Some of those people then visciously shamed and bullied Jesse. But to read this MSNBC story you would think that it was her sending of the photos that was so dangerous.

Slut shaming works because girls are told to be sexy but not sexually active. I don't know whether Jesse had ever even had sex with the boyfriend to whom she sent the pictures. It doesn't matter. What matters is that words like "slut" and "whore" were hurled at her and that those words are understood to be condemnations. They should not be, yet they are, and the shame attached to them caused Logan such pain that she began skipping school, spiraled into a deep depression and, after a friend of hers committed suicide, she did the same, hanging herself in her closet. What a tragically symbolic end for someone whose privacy had been so violated.

There will no doubt be pressure on wireless providers to somehow crack down on racy content, which they either can't or shouldn't do. There will also be a temptation to ramp up the use of the child porn laws against teens, despite the life-wrecking effects thereof.

But trying to regulate or criminalize the circulation of words and images here misses the point. If the law offers any help here, it is tort law and not criminal law, directed at the shaming and bullying rather than teen sexual speech and experimentation. Schools, parents and even teens themselves should be held accountable for the vicious bullying that causes tragedies like this - and indeed (as noted in the MSNBC article), Jesse Logan's mother is apparently trying to hold her school accountable in court.

Update: Some other interesting takes on the subject.

Trans murder trial faces hurdle; media makes a sideshow of pronouns

A Colorado man is set to go on trial next month for the murder of 18-year-old Angie Zapata - though that trial is now facing a potentially serious snag after the judge ordered the defendant's confession thrown out because of overreaching by police. The local Greeley Tribune has covered the story extensively; the quality of their coverage has been mixed. (Compare this to a very professional and respectful profile of the case by ABC News.) Today they an unfortunately sensational article devoted to the use of pronouns in the case.

All of this is quite beside the point of this case, a tragedy shockingly similar to the murder of Gwen Araujo in California in 2002. But the issue is not without some news value, if not, as the paper's approach suggest, simply because it's "odd." As National Center for Transgender Equality director Mara Keisling hints in the article, the contestation of trans identities themselves is invariably a strong undercurrent in these cases, and here as elsewhere the defense has to some extent tried to dehumanize the victim by invalidating her identity. Even as the prosecution and defense are contesting the guilt of the accused, they are also, with each reference to the victim, contesting who she was. While the article suggests that the court may address this linguistic issue before trial, I expect this will not be the subject of any ruling; the lawyers will just keep using their contrasting language.

Unusually, the article makes a point of its own journalistic conventions by pointing out that the AP stylebook directs reporters to use language consistent with individuals' gender identity and expression. Many reporters don't know that this guidance exists or choose not to follow it, and I have periodically taken it upon myself to point it out in letters to the editor.

Another sign of change in Argentina

This one has been making the blog rounds and is not law-related, but I just couldn't resist. I recently noted that Argentina is lifting its ban on out gay and lesbian members in the military, as is the Philippines. Here's another sign that Argentina, like Latin America generally, is seeing leaps and bounds of progress in LGBT activism and acceptance. There's a long way to go for trans people in Argentina and neighboring countries, but it's a pretty big deal when a bank uses a message of trans acceptance to advertise itself:



I can't imagine any financial institution in the U.S. doing a similar ad. In fact, I can't really imagine any major corporation selling itself with this kind of message of inclusion. Not only that, this ad is a thousand times better than most depictions of trans people in the media anywhere. Instead of treating a trans person like a spectacle or a joke, and making the fact of her gender history a laugh line or a dramatic reveal, here we see it treating in a matter-of-fact, unsensational way. Indeed, the story isn't that this woman is trans, but that her neighbor is sorry for making it a big deal. Depicting a trans woman as an apparently successful business owner is just icing. Yes, as one blogger put it, Banco Provincial is "Pro-Transgendered People, Pro-Little Old Men."

If only getting a loan made people rethink their prejudices in real life!