Responses to Weitzer, Post, and Wagner: Don’t Be Swayed by Exaggerated Claims

Ronald Weitzer

A few of the points on which Dr. Weitzer disagrees with me are based more in misunderstanding than in real and substantive differences of opinion.  For example, I agree with Dr. Weitzer that the result of many legalization schemes is de facto criminalization; that was what I meant by the phrase, “while in some [legalization regimes] there are so many prohibitions the act itself becomes de facto illegal.”  However, I think it’s still important to regard these situations as different from de jure criminalization; when a society criminalizes an act itself, the precedent is established that the act is bad and wrong, which in turn provides fertile soil for beliefs that lead to ever-increasing criminalization.  While I do not agree that sex work is a “special case” requiring special laws from which other forms of personal service are exempt, it seems unreasonable not to recognize that the legal construction of an act as “problematic” is far less likely to result in oppression than if it is constructed as “criminal.”  Most “crackdowns” in legalization regimes are conducted under the pretense of “rescuing” sex workers from supposed dangers rather than under the pretense that they are actually doing something harmful to society, and are thus far more subject to amelioration via educating police and politicians to the realities of sex work.  A politician who understands what sex work is like might be less likely to order harassment; one who believes it to be “criminal” simply doesn’t care about reality.

Similarly, I understand that there is no such thing as pure decriminalization, hence this passage:

Strictly speaking, neither [New Zealand nor New South Wales] has absolute  decriminalization because both have one or two laws that don’t apply to other industries (prohibiting those under 18 from working, for example), but the number of such special restrictions is so small as to make no practical difference for the vast majority of sex workers.  For purposes of this essay, “decriminalization” means this real system rather than a theoretical absolute one.

I am not an anarchist, but rather a minarchist; I am not convinced that at its current state of evolution, the human race can do entirely without government.  In my essay “A Necessary Evil” I wrote:

Oncologists and cancer patients are under no illusion about the destructiveness of chemotherapy; they recognize it as a poisonous, dangerous procedure only slightly better than the illness it treats.  I daresay nearly everyone would be happy to abandon it as an obsolete barbarity were there a better and less destructive therapy available, and I cannot imagine any sane physician’s enthusiastically supporting the use of it for other diseases, especially not non-terminal ones.  But with government it’s the exact opposite; many people seem to consider it the solution for every problem, and deny its danger despite ample evidence to the contrary.  We would rightfully distrust a physician who lied about the danger of chemotherapy, who insisted on giving the patient as many sessions as possible whether necessary or not, and who prescribed it for every ailment from bullet wounds to insomnia; yet, we accept the word of career politicians who make the same sort of claims about government.

I don’t feel sex work is “different” enough from other kinds of work to justify violating that principle.  Examples of restrictions I would accept would be disallowing sex businesses from hiring legal minors, and reasonable zoning and advertising restrictions no more onerous than those for other businesses.  I agree that penalties for abusive behavior against sex workers should be increased, but only to the same point as if the victim were a librarian, a lawyer, or an Avon lady; slapping a pejorative label (such as “pimping”) on behavior that would be legal if conducted in any other context opens the door for harassment of sex workers’ friends, associates, and families.  When was the last time anyone was convicted for “living on the avails” of a manicurist or secretary?  I agree in part with some regulations on street prostitution, but only insofar as the same behavior would be regulated if there were no money changing hands.  In other words, the police might very well issue a ticket or ask street workers to disperse if they’re littering, having sex in public or making loud noise at 3 AM, but I must point out that they would do the same for all others engaging in those same behaviors.  It isn’t necessary to criminalize sex work, not even street work, to control behaviors that upset the neighbors.

There are a few points on which Dr. Weitzer and I strongly disagree, however.  One is criminal background checks:  modern society seems determined to lock people into a criminal underclass for past transgressions or for even being accused of such by some person with a title and an attitude problem, and that is not conducive to a healthy society.  I would accept brothel licenses being denied for past convictions (not mere accusations) involving brothels, just as police officers convicted of job-related crimes should be denied badges, and doctors convicted of gross malpractice should be denied medical licenses.  But that isn’t the same as saying a man convicted of marijuana possession at 21 should be denied a brothel license at 40 – which (let us be honest) is the way such “background checks” are conducted in the real world.  And while I agree that police are no more malevolent than other men, neither are they the moral paragons the laws and regulations about their behavior presume them to be.  Human beings are eminently fallible and corruptible, and allowing them to be above the law as they currently are in the United States is a recipe for abuse.  I am a member of a marginalized and criminalized population with a history of abuse at the hands of police, who commit the majority of all violence against sex workers in every criminalized and quasi-criminalized regime. Dr. Weitzer must surely recognize that I have a far less sanguine view of the desirability of giving them any more authority over sex workers than they have over barbers or sociologists.

 

Dianne Post     

Though Ms. Post’s position differs from mine far more substantially than does Dr. Weitzer’s, it is difficult to respond to it on a philosophical level due to its deep reliance on a priori arguments.  This difficulty is best represented by Ms. Post’s statement that “the radical feminist stance against prostitution is based on the lived realities of women,” when in fact the exact opposite is true; whenever sex worker rights advocates attempt to express our opinions to radical (or even sex-negative moderate) feminists, their response is invariably that we are “not representative,” or that we suffer from the malady Marxists label “false consciousness.”  Large sex worker organizations in many countries support decriminalization and oppose any form of criminalization, including the Swedish-flavored variety, and these organizations are not limited to developed nations as prohibitionists pretend (and Ms. Post seems to imply by her focus on extreme poverty).  The world’s largest sex worker rights organization, Durbar Mahila Samanwaya Committee (DMSC), is based in West Bengal, India, and given that it has over 65,000 members, it strains credulity to suggest that this group is “unrepresentative” of Indian sex workers.  Similar organizations are found in Cambodia, Thailand, South Korea, and a number of African countries, and they are unified in their insistence that decriminalization is best for them.     

It hardly seems productive to attempt to refute Ms. Post’s contention that sex workers are unable to make “truly” free choices, because I can no more do so than she can refute mine that sex workers’ choices are no less free than those of radical feminists.  Similarly, it seems self-evident that anyone who pays for a thing cannot reasonably be declared to believe he has a “right” to that thing, else he would simply take it rather than offering payment.  Instead, I will concentrate on a critique of the shaky factual claims which make up the latter portion of her essay.  Several of these (including but not limited to the material at footnotes 1, 5, and 12) originate with Dr. Melissa Farley, a radical feminist ideologue with a long history of distorting and even inventing data.  Dr. Farley is well-known for selecting unrepresentative convenience samples (such as street workers in prison or forced drug rehabilitation) and then incorrectly applying her finding to all sex workers, despite the fact that street workers represent less than 15% of all sex workers; this short but thorough critique of her work by a number of academics (including Dr. Weitzer) provides much more detail than I have room for in this essay.  In the Bedford v. Canada case which struck down anti-prostitution laws in Ontario, Justice Susan Himel wrote:

I found the evidence of Dr. Melissa Farley to be problematic…her…unqualified assertion…that prostitution is inherently violent appears to contradict her own findings that prostitutes who work from indoor locations generally experience less violence…her…choice of language is at times inflammatory and detracts from her conclusions…and…[she has] stated…that some of her opinions…were formed prior to her research, including, “that prostitution is a terrible harm to women, that prostitution is abusive in its very nature, and that prostitution amounts to men paying a woman for the right to rape her.”

Dr. Farley has also been accused of gross ethical violations, as detailed at length in this 2011 request to the American Psychological Association, asking that her membership be revoked for those violations.  That complaint contains a refutation of one of Ms. Post’s claims, that decriminalization in New Zealand has “failed;” to put it bluntly, the  “increases” in prostitution Dr. Farley “found” were simply made up.  Dr. Farley is also the source of the now-ubiquitous “the average sex worker debuts at 13” canard which Ms. Post quotes; the study she supposedly drew that “fact” from actually found that the average age at debut for underage workers (a group making up only 3.5% of all sex workers) was 16, the same general age found by most studies (such as the U.S. Department of Justice-funded John Jay study of 2011).  The only mention of “13” in the study Dr. Farley quoted was the average age at which one of the surveyed groups reported first (noncommercial) sexual contact of any kind; a similar substitution is reported in the APA complaint, in which Dr. Farley tried to claim that “Māori women were entering prostitution as young as 9 years old” because two of her subjects had reported juvenile sexual contact at that age.  The false (and demonizing) claims about clients Ms. Post quotes are from the Farley paper analyzed in the short critique I linked above, and they are refuted by other, more methodologically sound studies (including one of Dr. Weitzer’s).  And Dr. Farley’s lack of qualification to diagnose PTSD is discussed in the APA complaint.

But not all of Ms. Post’s inaccurate statistics come from Dr. Farley.  The claim that “the average age of death for a prostitute is 34” is derived from a 2003 study which examined all of the reports of murdered street workers in Colorado Springs from 1967-1999, and discovered that the average age of death of those victims was 34.  In other words, nobody who wasn’t murdered was included in the figure.  It’s like using the average age of dead soldiers in a war to proclaim “the average man who joins the military dies at 21.”  Ms. Post does not cite a source for the popular myths that “pimps take all the money” and the rather lurid “barcode” trope because there is no research to support either one of them. The very first known photo of one of these “barcode” tattoos, from Madrid, dates to over a year after the myth was in circulation, and is more likely to have been inspired by it than vice-versa.  The claim that “nearly eighty percent of prostituted women report a history of child abuse” derives from a 2004 study of incarcerated street workers (see my earlier comments) which actually claimed 45% reported abuse; one might also point out that if Ms. Post is claiming that a person who has experienced such abuse can never again consent to either sex or employment, our society has a far larger problem than just sex workers.

And then there are the fallacious claims about legalization increasing “trafficking,” deriving from two sources.  The first is the deeply flawed Neumayer, Cho, and Dreher study, which failed to even define the term “trafficking” in any way which would allow statistical comparison.  The second is the increasingly conservative political establishment in the Netherlands, which is so desperate to seize the valuable land in Amsterdam’s legendary red-light district that it is willing to promote a known fake as an “expert” and to contradict the findings of its own 2010 study which found that only 10% of sex workers were involved in what it broadly defined as “wrongs” (including coercion).  Finally, it hardly seems necessary to refute Ms. Post’s claims about the Swedish model considering that I discussed (with links) the serious problems with it (including the spurious claims about its efficacy in suppressing prostitution) in my original essay. I will, however, provide this link to a recent analysis demonstrating exactly how sex workers are treated under this system, which is falsely claimed as “protecting” them.

 

Steven Wagner

Mr. Wagner’s essay suffers from the same critical flaw as does Ms. Post’s, an almost complete dependence on a priori statements, unsupported factual claims, and denials of both the lived experiences of the vast majority of sex workers and of every study which refutes their rhetoric.  As explained above, sex worker rights organizations are neither small nor “unrepresentative,” yet prohibitionists insist on claiming that the majority of sex workers are coerced despite ample evidence to the contrary.  Surveyed sex workers (even in so-called “hotbeds” of “trafficking” like Cambodia) consistently report coercion rates below 2%, which is very similar to the fraction of women in the general population who report an abusive or controlling boyfriend or husband; in other words, roughly 2% of women end up dominated by an abusive man no matter what they do for a living.  Even when authorities are allowed to define sex workers’ experiences for them, the rate is 10% or below (as in the Dutch and John Jay studies mentioned above). 

Mr. Wagner seems to feel that because statist feminists support  the Swedish scheme, that somehow grants it credibility; in fact, it is exactly the opposite.  The mere assignment of the label “feminist” to a philosophy which so thoroughly disregards the agency and competence of women does not magically purify oppressive and infantilizing legislation; even the prohibitionist term “prostituted person” is a glaring demonstration  of the underlying assumption of such laws.  The word “prostituted” casts the sex worker as a thing to be done to rather than a rational actor making the best of a field of  choices; the fact that  those choices are in many cases limited by economics, education, and other factors does not change the fact that those who make them perceive certain among them as the best ones possible under the circumstances.  Interestingly, those who would prohibit sex work never make the same arguments about other forms of labor; the fact that a fraction (probably larger than the fraction of coerced sex workers) of garment workers, agricultural workers, and domestic workers labor under exploitative conditions is not greeted with a demand that the buying of clothing, farm produce and domestic services be criminalized. 

That they are not exposes the prohibitionists’ true motive:  a crusade against sex.  In her book Other Dreams of Freedom, theologian Yvonne Zimmerman persuasively argues that the theoretical basis of the entire “anti-trafficking” movement is drawn directly from the traditional Protestant model of “sexually pure and pious womanhood.”  The majority of “anti-trafficking” groups are faith-based, and their rhetoric often extends to legal forms of sex work they would prefer to see criminalized, such as stripping and the making of adult video.  The founder of Shared Hope International, one of the largest “anti-trafficking” organizations, has even stated that “efforts to stop the sell [sic] and trade of minors in the sex industry should be an extension of the ‘pro-life’ cause.”  Given this theoretical basis, it is wholly unsurprising that prohibitionism casts women as the “weaker vessel,” pure and fragile creatures at the mercy of sexually ravenous men who must be “saved” from their own decisions.  While Mr. Wagner does throw a sop to the notion of male sex workers, the rest of his essay is clearly grounded in the dogma of helpless female victim and powerful male exploiter (whom he describes with the highly gendered terms “pimp” and “john”).

I’ve already refuted most of Mr. Wagner’s bogus statistics in my answer to Ms. Post above; these include the false claims that most sex workers begin work as minors, that a majority are coerced, that PTSD is common among sex workers, and that the mortality rate is astronomically high.  He does bring up one other popular bit of dogma that Ms. Post missed, however, the notion that “each year, 250,000 juveniles…are subjected to commercial sexual exploitation.” This myth is a distortion of a shaky estimate from the Estes & Weiner study of 2001, which actually expressed it as the number of “children, adolescents and youth (up to 21) at risk of sexual exploitation.”  “Sex trafficking” was the least prevalent form of “exploitation” in their definition; other things they classed as “exploitation” included stripping, consensual homosexual relations, and merely viewing porn.  Two of the so-called “risk factors” were access to a car and proximity to the Canadian or Mexican border.  When interviewed by reporters in 2011, Estes himself estimated the number of legal minors actually abducted into “sex slavery” as “very small…We’re talking about a few hundred people.”  But that does not stop this distorted guess being repeated endlessly, despite the fact that if even 100,000 minors were “commercially sexually exploited” every year, roughly 4% of school-age girls in the United States would have become “child sex slaves” since the beginning of this moral panic around 2004.  Were the number two and a half times higher, as Mr. Wagner posits, that would be almost 10% (or 5% of all schoolchildren if he allows that so many are boys).  It seems self-evident that this is certainly not the case.

Finally, I must thank Mr. Wagner for making one of my points for me.  He takes umbrage at my comparing “sex trafficking” survivor narratives to the now-discredited accounts from the Satanic  ritual abuse hysteria of the ‘80s and ‘90s, saying “The problem…is the remarkable consistency of these narratives.”  And he is right, but the problem isn’t for those of us who are skeptical of such tales, but rather for those who promote them.  In real life, the experiences of sex workers (like those of every other kind of person) are as varied as the human beings who experience them.  But that isn’t what we see in “trafficking survivor” narratives; on the contrary, they show the strong convergence one would expect from the action of group polarization, the psychological mechanism which causes the political views of those in a tightly connected group to converge.  “Survivors” may enter the “anti-trafficking” movement with different experiences and different views on the matter, but as they talk among each other and are coached by the movement’s leaders (a process described by activist Jill Brenneman as “reframing experiences”), their stories begin to adhere more closely to the “official” narrative.  They are thus shorn of any real-world subtlety and larded with impossibilities such as the claim of having seen 50 clients per day, an “average” that was routinely stated as “fifteen” rather than “fifty” until summer of 2012, when suddenly they all changed like birds flying in formation.  Several examples of such embellishment on the part of “anti-trafficking” celebrity Somaly Mam have come to light in the past two years:  a girl whose eye was supposedly “gouged out by a pimp” was shown to have lost it to a tumor, and another’s story was made up from scratch; neither ever worked as a prostitute at all, much less a coerced one.  The phenomenon of narrative convergence among “trafficking survivors” is so interesting that I recently wrote an entire research paper on it: “Mind-witness Testimony” will appear in the next issue of the Albany Government Law Review. If he likes, I’d be  happy to send Mr. Wagner a copy.

It’s important to refute the exaggerated claims of prohibitionists.  We need to expose their duplicity and defuse the panic they wish to create in order to win public support for adoption of whatever scheme, however oppressive, that promises to “do something” about the imaginary crisis.  But ultimately, even if there actually were large numbers of coerced sex workers, even if a considerable number of them really did start at a young age, even if many truly did have bad experiences, none of that would change the most important point of my original essay:  that the majority of these problems, where they do exist, are not intrinsic to the work, but derive from criminalization.  And it is no more possible to criminalize those problems away that it is to criminalize away the problems we associate with illegal drugs.  But not of illegal alcohol: When alcohol was criminalized, a host of terrible phenomena suddenly appeared in conjunction with its sale; when it was again decriminalized, those problems vanished just as suddenly.  And experience has shown that exactly the same thing is true of the sale of sex.

Also from This Issue

Lead Essay

  • Treating Sex Work as Work by Maggie McNeill

    Sex work is ubiquitous. Where a substantial demand exists, some people will inevitably try to meet that demand for a price. Retired call girl and madam Maggie McNeill reviews the various legal regimes that have been set up to regulate and/or prohibit sex work. She concludes that many approaches, particularly the most restrictive ones, increase the likelihood of harm to all participants. They tend to infantalize women and invest law enforcement with arbitrary and dangerous powers. She argues that the best approach is a regime of simple legalization, without licensing or heavy restrictions.

Response Essays

  • Prostitution as a Legal Institution by Ronald Weitzer

    Prof. Ronald Weitzer argues that prostitution should be treated as a legal commercial transaction. He finds that much of the conventional wisdom on the sex trade is the result of generalizing from experience under legal regimes where it is criminalized. He argues that in a legally tolerant regime, many of the problems we observe today would vanish. He argues for a set of “best practices” that would entail some government regulation of sex work, including subjecting business owners to background checks and licensing, zoning regulations, and restrictions on advertising. These measures would make decriminalization politically palatable and protect against a possible backlash. He also finds, contrary to McNeill’s claim, that no country has fully deregulated sex work.

  • Prostitution Cannot Be Squared with Human Rights or the Equality of Women by Dianne Post

    Dianne Post argues that prostitution is a form of exploitation, and that the only proper response is to abolish it. Prostitution, she argues, only exists because of material inequalities. Worse, it tends strongly to produce further inequalities – material, social, and political in nature. Prostitution traps women in economic dependency on men, and it encourages men to view women merely as commodities. Following this strong normative case against prostitution, Post looks at the empirical evidence, where she concludes that experiments with legalization have all been failures. She praises the “Nordic Model” approach to sex work, in which in which sex workers’ clients are prosecuted, rather than the women involved in prostitution.

  • Prostitution is Exploitation by Steven Wagner

    Steven Wagner argues that the large majority of prostitutes are not workers at all, because they are not acting voluntarily: they are enslaved. The personal experiences of Ms. McNeill notwithstanding, many others have suffered horribly in prostitution, and even left-leaning governments like that of France under the socialists have justifiably outlawed the sex trade. Wagner likewise prefers the Swedish approach, in which prostitutes are not treated as criminals, but those who attempt to buy sex are.

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