COMMENTARY: Texas laws attempting to regulate the illicit massage industry are burdening the wrong people

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Vanessa Bouché

The Texas Legislature must understand the nature of the illicit massage industry. This industry is not comprised of small, independent businesses operating in isolation. It is a well-networked international criminal syndicate.

We have a massage problem in Texas.

Since 1985, massage therapy has been a regulated health care profession in the State of Texas and between then and 2005, the regulatory and legislative landscape pertaining to massage therapy was relatively constant.

Since 2005, however, several legal and regulatory changes have been enacted in an effort to curb the rise of illicit massage businesses (IMBs) in Texas. By 2019 in the 86th Legislature, there were at least 25 bills filed aimed at amending the massage therapy laws in some way to address IMBs.

Ironically, during this same time period, Texas saw incredible growth in the number of illicit massage businesses across the state.

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The legislative and regulatory environment has not stemmed the growth of the illicit massage industry, but it has made it more and more difficult for massage therapists to run their businesses and do their jobs.

The rise of illicit massage businesses in Texas

A 2014 study stated: “The number of erotic massage parlors is increasing in the United States (from 4,197 in 2011 to 4,790 in 2013), and they are proliferating beyond the West and East coasts where the majority of them are clustered” (p. 56).

Although data on the total numbers of IMBs in Texas is not available prior to 2016, estimates reveal that in a four-year span from 2016 to 2020, there has been a 100% increase from 510 to 1,082 (see Figure 1).

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One report on IMBs states that the “vast majority of women reported to have been trafficked in IMBs are from China” (p. 17) and that the average age range is from 35 to 55 years old.

The women are often recruited to the United States under false pretenses that they can make thousands of dollars per month. They pay a debt to their trafficker for the arrangement of their visa and travel documents and are told that massage licenses and apartment leases will be taken care of.

In order to obtain licenses, IMBs work with fraudulent massage schools, known as “diploma mills,” which offer diplomas for a fee in order for the women to be able to take their licensing exams without ever having received formal training.

They also engage in a wide variety of other organized criminal activity from sex and labor trafficking to money laundering, document fraud, and tax evasion. Yet, the State of Texas has been attempting to cut them off by regulating them as licit massage establishments. It has not been working.

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Texas legislature’s attempt to curb the rise

In 2005, HB 2696 amended Texas Occupations Code Chapter 455, which defines and provides regulatory guidance for “massage establishments.”

 The most notable amendments made in HB 2696 include: 1.) amending the “registration” requirement to a “licensing,” requirement; 2.) requiring criminal background checks to obtain a license (including a new background check if the establishment changes locations); 3.) allowing law enforcement to enter the premises to ensure compliance; 4.) creation of a public registry of licensed massage therapists; 5.) insertion of language prohibiting sexual conduct in the massage establishment; and 6.) increased the civil penalty for violations under the code to a minimum of $1,000 and a maximum of $10,000 and the criminal penalty to either a Class A or Class B misdemeanor.

The amendments to Texas Occupations Code Chapter 455 made from HB 2696 were aimed at the illicit massage businesses. Indeed, a press release on the website of Texas Rep. Rafael Anchia, D-Dallas, in 2005 regarding HB 2696 states:

“House Bill 2696 focuses on unregulated spas and massage parlors. Certain massage parlors in the city are serving as fronts for prostitution and the trafficking of young women. It has become apparent that some of these businesses are not operating in a legitimate fashion and are having a negative impact on our neighborhoods and legitimate businesses.”

By 2007, numbers of “unregulated spas and massage parlors” continued to climb. In another effort to stem the tide, the legislature passed HB 2644, which increased the education hours for massage therapy professionals from 300 to 500 – an onerous requirement for legitimate aspiring massage therapists – while simultaneously eliminating the practical “hands on” examination requirement where legitimate massage therapists presumably shine.

Numbers continued to steadily climb, and in 2019, the legislature passed HB 1865, which requires fingerprinting and criminal background checks for those seeking a massage therapy license in Texas.

The purpose of all of these bills was, in part, to curb the rise of illicit massage businesses in Texas.

However, they have failed to do that. Instead, the number of licensed massage therapists with questionable backgrounds has skyrocketed.

According to Public Information Requests, in the 23-year period from 1985 to 2008, there were approximately 12,300 licensed massage therapists in the State of Texas. Only 35 of these had California addresses and none appeared to be Chinese.

Contrast this with the 10-year period from 2009 to 2020 during which time the number of licensed massage therapists jumped to 29,000, a 136% increase. Of the roughly 16,000 new licensed massage therapists, 886 had California addresses, many of which have the same four addresses in California.

More than 600 of these had Chinese surnames, which comports with the research suggesting that the majority of the workers are from China.

Despite the best efforts of the legislature to regulate illicit massage businesses, they thus far appear to have failed.

Instead, they have succeeded in making life significantly more difficult for professional massage therapists and the small businesses they operate. It also may put licensed massage therapists at risk, constantly having to be on guard for clients looking for sexual services.

Yet the problem persists

One reason for the failure to stem the tide of IMBs in Texas is the conflation of the terms “massage establishment” and “massage parlor.” Texas Occupations Code Chapter 455 defines a “massage establishment” as “a place of business that advertises or offers massage therapy or other massage services.”  Importantly, this same code states that a “sexually oriented business” may not hold a license or operate as a massage establishment and that a massage therapist cannot practice at a sexually oriented business.

On the other hand, Local Government Code Chapter 234 defines a “massage parlor” as “a business establishment that purports to provide massage services and that allows: (A) a nude person to provide massage services to a customer; (B) a person to engage in sexual contact for compensation; or (C) a person to provide massage services in clothing intended to arouse or gratify the sexual desire of any person.”

This sounds similar to the definition of a sexually oriented business, defined in Local Government Code Chapter 243 as “a sex parlor, nude studio … or other commercial enterprise the primary business of which is the offering of a service … intended to provide sexual stimulation or sexual gratification to the customer.”  A “massage parlor” is effectively a “sexually oriented business” masquerading as a “massage establishment.”

Clearly there is grave confusion about massage establishments versus massage parlors given the language in Gov. Greg Abbott’s Executive Order No. GA-08, in which he states, “people should avoid … visiting … massage parlors.”

I assume he meant “massage establishments.”

A second reason for the failure is that both the civil and criminal penalties for violations as a “massage establishment” or “massage parlor” are weak and, as such, will never be prioritized by law enforcement or district attorneys.

“Massage establishment” violations include a civil penalty of between $1,000-10,000, which is pocket change in an international criminal syndicate that is worth about $2.8 billion in the U.S. alone. The criminal penalty is a Class A or Class B misdemeanor. But the violations under the “massage parlor” code are just as lenient at a $1,000 fine per violation and a Class A misdemeanor.

The biggest problem of all is that they are attempting to address an international organized criminal syndicate through increased regulation of a legitimate industry.

This simply allows these illicit massage businesses to continue to cover their criminal activity.

In 2019, the Texas Department of Licensing and Regulation (TDLR) was given a mandate to increase their regulatory footprint of these suspected “massage parlors” that are being treated like “massage establishments.”

Importantly, TDLR is responsible for licensing and regulating massage establishments, massage schools, and massage therapists, but not “massage parlors.”

While increased scrutiny on these businesses is not necessarily harmful, it is an inefficient and ultimately ineffective use of time and resources. This is a vast criminal network; treating each “massage parlor” as a discrete entity in a regulatory context will only marginally move the needle. Ultimately, these “massage parlors” will adjust to the new regulatory context and continue their criminal acts.

Where do we go from here?

Legitimate massage establishments – most of which are small businesses – have suffered significantly from COVID-19, and these regulations are making their lives even more difficult.

There needs to be severance between legitimate massage establishments and “massage parlors” so that laws intended to bring down illicit massage businesses do not have the unintended consequence of impacting small business owners.

One potential way to do this is to strike the word “massage” from “massage parlor” and replace it with “sex.”  Then “sex parlors” can be classified as a special type of “sexually-oriented business.” Of course, this would remove these “massage parlors” from the regulatory purview of TDLR, which, as shown above, may not be where resources should be channeled anyhow.

However, even with this definitional clarity, the “massage parlor” and “sexually-oriented business” statutes do not go far enough to address the illicit massage industry.

The legislature must understand the nature of the illicit massage industry. This industry is not comprised of small, independent businesses operating in isolation. It is a well-networked international criminal syndicate.

As such, any effort to stop it must be approached as a coordinated effort by local, state, and federal law enforcement partners. At a minimum, civil and criminal penalties at the state level must be increased to incentivize law enforcement and district attorneys to investigate and prosecute illicit massage businesses.

These increased penalties should not be for violations as “massage establishments” but rather as “massage parlors,” “sex parlors,” “sexually-oriented businesses.”

Given the ever-growing number of these illicit massage businesses, it is imperative that every level of government not only do its own part, but also coordinate, collaborate, and share data and intelligence with the others to bring down this industry.

At the end of the day, however, it is also imperative to remember that this industry continues to grow because it is profitable, and it is profitable because “happy endings” are in demand from victims of sexual exploitation, immigrant adult women who are culturally isolated, indebted to the conspirators, and fearful of law enforcement.

Thus, it is not enough to criminalize the middlemen, the distribution channel that connects the supply with the demand. We must address a culture that allows this industry to thrive, and we must care for those who are impacted the most, the victims.

Vanessa Bouché, Ph.D., is Associate Professor of Political Science at TCU and a recognized expert on human trafficking globally. She published the first paper estimating the scope of the illicit massage industry in the U.S. and has testified before the Texas Senate on the issue. She is the founder of and the co-founder of Savhera, a wellness company providing jobs to survivors of sex trafficking.