In New York, selling or buying sex is illegal. That might change in the near future.

Two separate bills making their way through the state Legislature — the Stop the Violence in the Sex Trades Act and the Sex Trade Survivors Justice and Equality Act — aim to decriminalize sex work, although with significant differences.

The first bill seeks to fully decriminalize sex work for workers themselves as well as their clients and managers, while the second would only decriminalize it for sex workers. At the root of the difference between the two approaches is a philosophical tug of war: Is sex work a business like any other, or a trade that objectifies and victimizes people and needs to be stopped?

With the exception of Nevada, where prostitution is legal in most counties, sex work is illegal across the United States, so New York lawmakers are looking at countries abroad for insights.

The Stop the Violence in the Sex Trades Act, introduced by state Sen. Julia Salazar, D-Brooklyn, in 2019 and resurfaced this year as S. 3075, borrows the full decriminalization approach adopted by New Zealand in 2003 and by the Australian state of New South Wales in 1979.

The bill would decriminalize consensual sex between adults in exchange for a fee, which is currently a class B misdemeanor. It would also decriminalize use of buildings for sex work, and has a provision to expunge criminal records for prostitution-related offenses that create barriers to employment, housing and access to higher education.

"[What] we're advocating is decriminalization of two parties that agree to exchange sex, for money or for whatever they are exchanging it," Cecilia Gentili, a transgender rights activist and former sex worker who advocates for the bill, told Law360. "It's very personal for me, because I am a sex worker, and I am also a person who experienced trafficking in my life."

Gentili helped found Decrim NY, a coalition of current and former sex workers, public defenders and advocates that has led a campaign for the bill, which has six co-sponsors in the Senate. A companion bill, A. 849, was introduced by Assembly Member Richard N. Gottfried, D-Manhattan, and currently has 17 co-sponsors.

Advocates of the bill seek to treat sex work as any other profession.

"Sex work is a service," Gentili said. "Sometimes it's not even about the sex. Sometimes it's like supporting a person, you know, supporting somebody in other ways and listening to people."

The rival bill, introduced by Sen. Liz Krueger, D-Manhattan, as S. 6040 in March, has a different end game: to help sex workers exit the industry by providing them with social services, housing and other types of support. The bill would make selling sex legal but still prosecute patrons and pimps. It would also continue to forbid sex workers living in the same dwelling. 

This approach, commonly referred to as the Nordic model, was first adopted by Sweden in 1999 and has since been embraced by other European countries such as Norway, Iceland, France, Ireland and Northern Ireland.

Dawn Gresham, a policy adviser to Krueger, said that most sex workers are coerced into the trade, mainly by economic circumstances. The bill would help them escape it, she said.

"People in the sex trade are victims themselves," Gresham told Law360. "Survivors report this as being raped on a daily basis. There is sexual violence they have to contend with."


Current and former sex workers have come out in support of both bills, but the coalition powering Salazar's bill is much wider and includes several LGBTQ rights groups, transgender-led organizations, advocacy and immigration groups such as the Center for Constitutional Rights, Make the Road New York and the New York Civil Liberties Union, and all major public defenders in New York City.

Supporters of the Decrim NY bill say the enforcement of prostitution laws punishes people living in poverty and often targets people of color, members of the LGBTQ community and immigrants. In their view, full decriminalization is a necessary step to address that inequality.

"Sex workers traditionally have not been respected. Sex workers have been seen as less than human. Sex workers just haven't really been given full equity," said Jared Trujillo, an attorney, former sex worker and advocate with the NYCLU. "This is really a coalition that's about elevating sex workers."

The Salazar-sponsored bill also addresses another aspect of current laws which advocates say is crucial: the intersection between prostitution and immigration. A large share of sex workers are immigrants, many of them unauthorized. The bill provides for a process called vacature, which expunges records in a way that immigration authorities will accept.

Krueger's bill contains provisions allowing for the vacature of prior prostitution convictions that were the result of sex trafficking. However, a separate bill Gov. Kathy Hochul signed into law on Nov. 16, the Survivors of Trafficking Attaining Relief Together, or START Act, already contains those provisions.

Prostitution-related convictions are among what immigration law defines as crimes involving "moral turpitude." Regardless of their status, immigrants engaging in sex work face deportation and denial of citizenship or other benefits.

Upon its launch in 2019, Decrim NY advocated for the repeal of a 1970s law prohibiting loitering with the purpose of prostitution. Other organizations such as Sanctuary for Families and Coalition Against Trafficking in Women, which support Krueger's bill, advocated for the repeal of the law, commonly known as a "walking while trans" ban because critics say it targeted transgender people in particular. The law was repealed in February.

Advocates for sex work reform argued that the law gave police too much discretion in deciding whom to arrest; for example, officers would stop people if they were wearing a skirt deemed too short or for waving at cars. In the overwhelming majority of the cases, they say, the people arrested were Black or Latino, and often transgender.

According to New York State Division of Criminal Justice Services data that captures only top charges, 77% of people charged under the loitering statute across the state were Black or Latino in 2017. In 2018, that percentage rose to 89%.

Meanwhile, arrests for prostitution have declined in the state, as they have elsewhere in the nation. Several large U.S. cities have shifted away from the prosecution of sex workers, which prosecutors do not consider a priority.

DCJS data including only top charges shows there were 1,016 people charged with prostitution statewide in 2017, while in 2018, there were 861, and in 2019, they were 704. Only 209 were charged in 2020, and the number of people charged from January through September of this year is 105.

Most district attorney's offices in New York City have said they would stop prosecuting sex workers, though they would continue to go after pimps and people buying sex. Manhattan District Attorney-elect Alvin Bragg, who will begin his term in January, told Law360 in an email that he doesn't plan to prosecute people selling sex.

"As DA, I will seek to crack down on sex trafficking, but do not believe limited prosecutorial resources should be devoted to any form of prosecuting consensual sex between adults," Bragg said.

While Salazar's bill seeks to create the conditions for establishing sex work as a legal business and to empower sex workers, Krueger's proposal is geared toward addressing sex trafficking. That bill has been endorsed by anti-trafficking organizations such as Coalition Against Trafficking in Women, Sanctuary for Families, World Without Exploitation and ESPAT USA, and homeless services providers such as Covenant House.

The bill seeks to enhance existing laws around human trafficking. It would close a loophole in state law that prevents sex buyers from being charged with promoting prostitution when they traffic people to themselves, and would eliminate the so-called ignorance defense for individuals charged with buying sex from children. The bill would also mandate financial penalties for sex buyers, pimps and traffickers, and establish increasing financial penalties for repeat trafficking and pimping offenses.

The age for defining a victim of sex trafficking would also be raised from 19 to 24 as it pertains to eligibility for programs under the Safe Harbour for Exploited Children Act, a 2008 state law that provides for services for youth who experience sexual exploitation. The bill would also establish a "victims of sexual exploitation fund," which the state would use to disburse money to survivors in the form of grants and to fund services for them.

"There is a significant group of people that we never hear from, and that is people who have been trafficked," Justin Flagg, a spokesperson for Krueger, told Law360. "We know that legalization and decriminalization in its various forms really kick trafficking into high gear and drag more people who are already existing in marginalization and who are vulnerable into this system of exploitation."

Krueger's advisers say fully decriminalizing the sex trade would create the conditions for a wave of sex trafficking. They pointed to Rhode Island, which unintentionally decriminalized indoor prostitution in 1980 until a law banned it in 2007. A lack of legislation created a bustling network of organized sex work, most of it related to spa parlors, some of which were found to involve trafficked women, the advisers say.

Gresham and Flagg also pointed to European countries such as Germany and the Netherlands that passed permissive prostitution polices in the early 2000s and have become popular destinations for sex tourism. Local governments have since enacted forms of regulations to contain an exploding sex industry, they said.

Supporters of the Decrim NY-sponsored bill, on the other hand, pointed to New Zealand as an example of a successful paradigm. In 2003, New Zealand adopted a full-decriminalization approach, legalizing prostitution with minimal regulatory intervention. An evaluation of the decriminalization reform five years after it was enacted concluded that the sex trade had not expanded.


Prominent human rights organizations have come out in favor of fully decriminalizing sex work in recent years, arguing that criminalization makes sex workers more vulnerable to violence because they are forced to operate in the shadows with little or no state protection, and that crimes against them often go unreported and unpunished.

In 2012, the World Health Organization encouraged governments to work toward decriminalization of the sex trade while ensuring that sex workers are protected from violence and the spread of infectious diseases.

In 2016, Amnesty International also called for the decriminalization of prostitution. The organization said there was no evidence that criminalizing the sex trade was effective in dealing with trafficking.

"The conflation of human trafficking with sex work can result in broad and overreaching initiatives that seek to eradicate all commercial sex as a means to end trafficking," the organization said at the time. "Such approaches work in practice to violate sex workers' human rights."

Human Rights Watch echoed that sentiment in 2019, saying that criminalizing consensual sex between adults "is incompatible with the human right to personal autonomy and privacy."

"A government should not be telling consenting adults who they can have sexual relations with and on what terms," the organization said.

Krueger's advisers warn that full decriminalization would facilitate a flourishing sex work industry in New York, make it a destination for sex tourism and lead to more people, including minors, being trafficked. It would also give rise to public safety issues, particularly in New York City, which is already a hub for illegal prostitution, they say.

But supporters of full decriminalization say those concerns are overblown.

"Most folks who oppose this bill kind of base their opposition on ideas that we are advocating for trafficking, which is not the case," Gentili said. "I know what being trafficked means."

The Decrim NY bill leaves intact current provisions around sex trafficking, but would get rid of charges of promoting in the third and fourth degree, which supporters say is used to target sex workers who work and sometimes live together mainly to ensure each other's safety.

Gentili, who entered the sex trade at 17 and said she has been the victim of rape and violence by patrons and police officers, said Krueger's proposal is problematic.

Continuing to criminalize buyers ultimately makes sex workers less safe, she said, because it creates fear in patrons, and that fear can turn into abusive and even violent behavior. It will also perpetuate police surveillance of sex workers, as officers looking for patrons will continue to hover around sex workers and often harass them, Gentili said.

"Criminalizing buyers creates a lot of uncertainties for the people for selling sex and damages the business," she said. "If one of the sides of the sex trade is criminalized, it still creates tension with the police. And what we want is sex workers to be able to report trafficking situations."

Gentili, who now works as a lobbyist and owns a consulting firm that advises employers on gender inclusion, said Krueger's bill is based on the assumption that sex patrons are dangerous.

"It brings back the whole stigma that clients are inherently violent or harmful. And that's not the truth. That's not the reality," she said. "I have had clients who were not the best clients, but that happens to anybody in any situation where we exchange something."

--Editing by Alanna Weissman.

Update: This story has been updated with information on new legislation concerning the vacature process for past prostitution offenses and organizations supporting the loitering law repeal.

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