OLYMPIA, Wash.—A carefully-crafted new law in Washington state appears to be directed at protecting minors from being sexually exploited by pimps who traffic the girls through online escort sites like BackPage.com, but a close reading of the legislation makes it clear that the purpose is to shut down those escort sites altogether.
First proposed on February 2, fast-tracked through the state legislature and signed into law by Gov. Christine Gregoire on March 29, Senate Bill (SB) 6251 makes it a crime if a person (or company) "knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in the state of Washington and that includes the depiction of a minor."
Not much of a problem, right? But the devil here is in the details, or more accurately, the definitions.
"Advertisement for a commercial sex act," the law says, means "any advertisement or offer in electronic or print media, which includes either an explicit or implicit offer for a commercial sex act to occur in Washington," which would easily include BackPage.com, the Village Voice Media-owned site which has recently come under fire by New York Times columnist Nicholas Kristof for its alleged facilitation of the sex trafficking of minors.
But while BackPage.com and several other similar sites—the ones that are left, anyway, since Craigslist shuttered its adult listings—say they screen the ads to weed out solicitation of or by minors and work with law enforcement to track down those pimping the underaged, that's not good enough for Washington state.
"In a prosecution under this statute, it is not a defense that the defendant did not know the age of the minor depicted in the advertisement," reads Section 2 of the new law. "It is a defense, which the defendant must prove by a preponderance of the evidence, that the defendant made a reasonable bona fide attempt to ascertain the true age of the minor depicted in the advertisement by requiring, prior to publication, dissemination, or display of the advertisement, production of a driver's license, marriage license, birth certificate, or other governmental or educational identification card or paper of the minor depicted in the advertisement and did not rely solely on oral or written representations of the minor's age, or the apparent age of the minor as depicted. In order to invoke the defense, the defendant must produce for inspection by law enforcement a record of the identification used to verify the age of the person depicted in the advertisement."
One might be tempted to think of this section as a requirement for a sort of "2257 recordkeeping" for people who advertise themselves or others as escorts, but in reality, it's a real Catch-22 for anyone who wants to rent his/her body for "any act of sexual contact or sexual intercourse... for which something of value is given or received by any person," as prostitution is defined in Revised Code of Washington (RCW) chapter 9.68A.
See, prostitution is still a crime in Washington state, so any person who'd like to engage in that profession and place ads online or in one of the local tabloids will have to reveal—and provide proof of—his/her true identity to the company placing the ad online or in print, thus risking having the police subpoena such material from the publication/website owner... or simply seize it in a raid ostensibly looking for evidence of underage sex trafficking.
For its part, Village Voice Media told The New York Times that it had "no plan to remove its escort sections," and according to its attorney Liz McDougall, "There's going to have to be a challenge to it. Otherwise, it would effectively shut down an enormous portion of the Internet that currently permits third-party content."
But even a lawsuit challenging SB 6251 might not be enough. Rob McKenna, who besides being the state's attorney general—and a Republican, natch!—is also president of the National Association of Attorneys General, will be pressing Congress to amend the 1996 Communications Decency Act to take away its protections for ISPs posting third-party content.
But that may not be necessary. According to Jeanne Kohl-Welles, SB 6251's primary sponsor, even the American Civil Liberties Union is on board with the law's language.
"We provide the means for them to have an affirmative defense," Kohl-Welles said of the escort site publishers. "That is, if they can document they verified the age of the individual being portrayed. We think that’ll do it."
Trouble is, like 2257, any publisher accused of posting an ad that police claim pimps a minor is guilty unless and until the publisher can produce a government-issued ID document proving the person being advertised isn't underage—and even better, with that document in hand, the cops can easily bust the escort for prostitution.
And for some, that's a win-win.