Point: Prostitution Must Remain Criminalized


Editor’s Note: The issue of sex work forms the basis of one of the most heated contemporary arguments among feminists. Those who support the abolition of prostitution often look at poststructuralist/postmodern feminists with confusion and anger. The “pro-sex” position seems like capitulation to male prerogative that lacks any threat to patriarchy; guaranteeing unlimited access to women’s bodies is something that men have always demanded, is one of the bases of sex inequality, and damages all women. “Pro-sex” feminists respond with equally strong outrage, seeing dominance feminists as doing exactly what men have always done: telling women what they can and cannot do with their bodies and denying women the ability to take control of their sexuality. To them, second-wave feminists reflect a moralizing conservatism against which feminists have always fought and sex work is a complicated series of actions with the potential not only for women’s erotic potential but for empowerment and liberation. These fights are often entrenched, ugly, and rather unproductive. Both sides credibly believe that theirs is the minority position, which makes the argument even more heated.

There is one thing that all people should agree with, however, and that is a shared interest in improving the lives of sex workers. Across the world, sex workers are raped, beaten, and murdered on a regular basis. The legal system offers little recourse as it is common for police officers to rape and abuse sex workers. Immediate action must be taken to address this problem. On April 16, Unbound: Harvard Journal of the Legal Left hosted Beyond Coercion: Radical Voices on Sex Work, Feminism, and the Law, a panel focusing on prostitution and the sex industry, as reported on in this week’s Record. The panel featured Sapna Patel, an attorney with the Sex Worker Project of the Urban Justice Center, Eliyanna Kaiser, Executive Editor of $pread Magazine, and Charito Suarez, an outreach worker with TransCEND.

By Mark Egerman

I give an incredible amount of credit to Unbound for the panel it organized. Each of the speakers shared an overwhelming dedication to improving the lives of sex workers. While I might have intellectual disagreements with many of the positions taken, I truly believe that the panelists not only share a commitment to this fight but are actively making a difference.

It is a bit intimidating, then, to take a countervailing position to the arguments presented. Yet, I think the arguments usually presented in this discussion can come across as cartoonish and overly reductionistic and that it’s rare to get the chance to move beyond simple classifications as being pro- or anti-sex work. Given this opportunity, I will attempt to chart out a limited number of arguments that in part explain my opposition to the legalization of sex work.

I think the “Swedish model” is the best possible way to help the incredible number of people who are trapped in a dehumanizing cycle of abuse. This model recognizes prostitution as a form of trafficking in women, criminalizing those who traffic in sex workers, namely pimps and Johns, while decriminalizing sex worker, and providing significant resources to those sex workers in need. This ultimately forms the crux of my disagreement with the panelists. It is not a trivial issue, as the TVPA reauthorization of 2007 which has passed the House has removed the requirement that “force, fraud, or coercion” be present for trafficking to exist. If this bill does pass in its current form, it could be a first step towards a rethinking of our prostitution laws.

Sapna Patel described three groups who enter sex work: those who are forced, those who have limited economic opportunities and are pushed by necessity, and those who do so by choice. Eliyanna Kaiser reinforced this point, noting that she knows sex workers in the last category who were often artists drawn to the work by the chance for a “more fluid lifestyle.” The existence of these women led Patel to say she opposed labeling all prostitution as trafficking.

This seems deeply problematic. The women who chose to enter prostitution are certainly the most privileged of the group. These sex workers want to be there but have the resources to leave. On the other hand, women who were forced or pushed into prostitution do not want to be there but are unable to leave.

This no different than opposing asbestos regulation because some rich people enjoy the flexible hours asbestos mines offer. Middle class kids go “slumming” all the time, taking low-paying jobs and living in “bad parts of town” in order to “find themselves.” Maybe there’s nothing intrinsically wrong about this sort of behavior, but it would be outrageous to suggest that our homelessness policies should include the interests of trust-fund kids slumming it on the streets.

In essence, I’d rather get resources to those women whose civil rights, bodily integrity, and very existence are threatened on a daily basis even if it means denying more privileged women a form of work they prefer. This is nothing more than a change in the default rule regarding prostitution. Currently we allow the narrative of the privilege and presume consent unless otherwise proven, thus radically under-enforcing the abuses that occur. Changing the default to assume all prostitution is a form of trafficking is a change to over-enforcement.

While I seem to be advocating throwing the baby out with the bathwater, I also am skeptical about any benefit received by women who demonstrate some choice in entering prostitution. This is not to say that women entering prostitution don’t make a real choice, or that I don’t respect their choice, but rather it’s something I want to interrogate, specifically the conditions under which this agency is executed.

Charito Suarez spoke about the various reasons why transpeople enter sex work, mentioning that sex work can be empowering by giving its practitioners a feeling of control. This argument is one I hear a good deal but wonder about. Empowerment is relative and the question must always be asked: what is the baseline to which we are comparing? I don’t doubt Suarez and it’s not uncommon to read narratives in which sex workers, having been molested as children, say that turning tricks was the first time they ever felt like they were in control of their body.

My concern isn’t about the accuracy of the statements but their implication. Hypothetically, imagine I lived in a world where I was raped four times a day. If I was given the choice to be raped twice a day, I would certainly find it empowering and liberating. But that doesn’t mean that it would make sense to legalize twice-daily rape, nor does it mean that those who argue against twice-daily rape ultimately did not have my interests in mind.

Yes, many women who enter sex work find it liberating. What is noteworthy is the baseline. The limited research we have shows that the overwhelming majority of sex workers were abused as children, started sex work at an incredibly young age, and faced other deprivations. The radical potential in the rhetoric of liberation ought to be fighting for a world in which nobody finds sex work empowering.

Finally, I disagree with Kaiser’s claim that sex work is no different than other forms of labor. Picking cotton was not “just labor” in 1859 for the same reason that sex work is not “just labor” now. This is not about morality, it’s about reality. Sex work does not occur in a vacuum, but in a cultural context that includes the background gender relations that create the baselines described above. Sex work is about sex and ultimately reflects and partially constitutes sex relations at large. As such, sex work helps create the problem that is ostensibly fixes.

Given these concerns, I’m not particularly interested in discerning the numbers of sex workers who were forced versus the number of sex workers who chose to be there or trying to draw lines. Such research is ultimately indeterminate and so long as there are significant numbers of abused women
who want to leave, I do not see enough positive reasons to support sex work. This is why I’m still fluxommed by the title of “pro-sex” feminism. Given the conditions under which these decisions are made, it seems to me that those who advocate for more sex under the current sex regime are just “pro-bad-sex” and that “pro-sex” should refer to those who fight to create conditions under which sexual agency can be more freely expressed. Given all these concerns, I’m still impressed that Unbound was able to present a discussion that advanced these issues in a thoughtful and respectful way and without ever losing sight of the ultimate goal.

Mark Egerman is a 2L.

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