When researchers taught capuchin monkeys how to use money, it didn’t take long for one of the male monkeys to offer a female one of the coins in exchange for sex. Prostitution is often called “the world’s oldest profession” with good reason; it is a form of exchange that predates the human species, and has even been observed among chimpanzees.  Males tend to want sex much more frequently than most females are willing to accommodate, and where a demand exists it is inevitable that some individuals will choose to meet it for a price.  But because sex has traditionally been viewed as sacred, magical or otherwise special because of its ability to produce life, it has always been an area authoritarians felt especially compelled to enact restrictions upon; the fact that most of the sellers were female and most of the buyers male¹ probably also had a lot to do with it, especially in pre-modern times when virtually all political power was concentrated in the hands of the client class.  We no longer live in a time when power depends upon gender, nor one in which coitus runs an uncontrollable risk of creating unwanted offspring, yet our laws regarding prostitution are still solidly anchored in the era when those conditions prevailed.

Terminology

The terminology used to discuss this subject is probably unfamiliar to some readers, so a short summary may be in order.  First and foremost is “sex work,” an umbrella term for all forms of labor in which the sexual gratification of the customer is the primary focus.  Prostitution, stripping, acting in adult movies, providing phone sex, and the like are included.  As you can probably guess, the boundaries are somewhat fuzzy; some dominatrices and burlesque dancers consider themselves sex workers, while others vociferously insist they aren’t.  But in general, a “sex worker” is one whose job is specifically focused on the customer’s gratification, not merely tangential to it.  The term was first coined by activist Carol Leigh in the 1970s and began to catch on in earnest in the late 1980s; it was felt an alternative was needed for the pejorative and legalistic “prostitute” and “prostitution.”  For simplicity’s sake, the term “sex worker” will be used herein specifically to mean “prostitute,” since the laws regarding strippers and the rest are not the subject of this essay.

As with the term “sex work” itself, there is some controversy regarding the exact meanings and extent of the terms for the various models of legislation. I find that the simplest and most useful categorization divides all of the individual legal schemes into three broad categories.  In the first, criminalization, the act of selling sex itself is illegal; despite the common American perception that this model is nigh-universal, it is actually the least common in the developed world.  The United States and several communist and recently-communist countries are the only large nations which have full criminalization, but in the Swedish model (also called the Nordic model), only the act of paying for sex is de jure prohibited.

The most common system, found in the majority of European, Commonwealth, and Latin American countries, is legalization.  The act of taking money for sex is not illegal in and of itself; rather, certain activities associated with it are.  In Canada, for example, deriving a substantial portion of one’s income from someone else’s sale of sex (“living on the avails of prostitution”) is illegal, as is maintaining a place specifically for the purpose of selling sex (“brothel-keeping”) or conducting negotiations in a public place (“communicating for the purpose of prostitution”).  So a woman who advertises on the Internet, communicates with her clients by phone or email, and visits them in their homes or hotel rooms has broken no law in Canada. 

The specific activities prohibited under legalization schemes vary widely and arbitrarily; for example, while brothels are illegal in Canada, in Nevada they are the only legal venue for selling sex.  Specific regimes also vary widely in extent:  while in some there are so many prohibitions the act itself becomes de facto illegal, others differ from decriminalization by only the narrowest of margins.

The third model, decriminalization, is at present found only in New Zealand and the Australian state of New South Wales.  Under this system, sex work is recognized as a form of work like any other, and therefore not subject to any laws that do not bind other businesses.  For example, brothels are regulated by zoning laws and the like rather than subjected to special criminal laws; sex workers are responsible for taxes and covered by workers’ compensation programs, and so forth.  Strictly speaking, neither of the two named jurisdictions 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.

History

For most of history, sex work was generally unregulated; exceptions to that rule were frequent, but nearly always local and temporary.  Some jurisdictions might require registration or limit the activity to specific areas; others allowed brothels to open only at night or banned street work altogether; still others required sex workers to wear certain colors, or to adopt some other sign; some forbade sex workers from ever marrying, even after retirement.  But all of these systems would be considered forms of legalization; it was virtually unheard-of to ban the act of selling sex itself, except perhaps for the occasional proclamation issued by some unusually prudish feudal lord (which was typically forgotten as soon as he died or changed his mind).  Up until the Reformation, the official position of the Catholic Church was that prostitution was a “necessary evil” whose absence would, as St. Augustine put it, cause “capricious lusts [to] overthrow society.”  And in the Far East, most of the laws were designed to maintain the rigid social order and class structure of those societies, rather than to police the private sexual arrangements of individuals.

Indeed, up until the nineteenth century almost nobody imagined that prohibition could be done, let alone that it should.  It was almost universally understood that many working-class women and a not-inconsiderable number of those in higher classes would accept money for sex, at least on occasion, and it was impossible to draw a bright, clear line between behaviors that constituted “prostitution” and those (such as concubinage, mistresshood, and political marriage) which did not despite their often-mercenary basis.  The manifold laws regulating sex work were not intended to preclude pragmatic motivations for sexual behavior, but rather to keep up appearances, guard the purity of bloodlines, and maintain public order.  But as the Victorian Era dawned, a new idea began to take hold of European minds: if science could perfect Man’s tools and techniques, why couldn’t the same process be applied to Mankind itself?  The immediate result of turning (pseudo-)scientific inquiry upon sex was that taking money for it was no longer considered merely something that “unladylike” or “sinful” women did for a living or extra income; instead, the “prostitute” was defined into existence as a specific type of woman, separate and distinct from other women.²  For most of the century the prevailing view was that women who took money for sex were congenitally defective, but in the 1880s the idea arose that most or even all were forced into the profession by evil men.³  It was about this time that “avails” laws started to appear, under the rationale of “protecting” women from exploitation by such men. 

By the beginning of the twentieth century, the “white slavery” hysteria was in full swing.  Progressives were determined to “rescue” women from the clutches of the “pimps” who were abducting them by the thousands from homes, railway stations, and dance halls, and for the first time in history the act of taking money for sex was itself criminalized on a large scale.  In the United States, it was illegal almost nowhere in 1909, but almost everywhere by the end of 1914.  The sociological reasons for this hysteria are outside the scope of this essay,⁴ but the reader may wish to compare the current moral panic over sex work with the one of a century ago, and recognize that both eras were characterized by widespread fears over immigration and the sexual behavior of young women.  Laws which had never been considered even advisable were now considered indispensable, and that opinion is still the prevailing one in most of the world today.

Harm Magnification

The common belief in criminalization and legalization regimes is that sex work is unique among all forms of work; this view is solidly rooted in an archaic and sexist view of women as particularly fragile and vulnerable, and the “Swedish model” posits that paying for sex is a form of male violence against women.  This is why only the act of payment is de jure prohibited: the woman is legally defined as being unable to give valid consent, just as an adolescent girl is in the crime of statutory rape.  The man is thus defined as morally superior to the woman; he is criminally culpable for his decisions, but she is not.  In one case, a 17-year-old boy (a legal minor in Sweden) was convicted under the law, thus establishing that in the area of sex, adult women are less competent than male children. 

One would expect that feminists would be vehemently opposed to a law that so thoroughly infantilizes women, but it was first enacted in 1999 under pressure from state feminists; its radical feminist supporters in Sweden and other countries seem wholly oblivious to its insulting and demeaning assumptions about women’s agency.  Nor is the damage caused by this remarkably bad legislation limited to dangerous precedent; despite unsupported claims by the Swedish government to the contrary, the law has been demonstrated to increase both violence and stigma against sex workers, to make it more difficult for public health workers to contact them, to subject them to increased police harassment and surveillance, to shut them out of the country’s much-vaunted social welfare system, and to dramatically decrease the number of clients willing to report suspected exploitation to the police (due to informants’ justified fear of prosecution).  Furthermore, these laws don’t even do what they were supposed to do; neither the incidence of sex work (voluntary or coerced) nor the attitude of the public toward it has changed measurably in any country (Sweden, Norway and Iceland) where they have been enacted.

Yet despite this complete failure, Swedish-style rhetoric has been heavily marketed to other countries.  In legalization regimes, the sales pitch is based in the same sort of carceral paternalism which is used to justify the drug war and supported by the same bogus “sex trafficking” claims which are being used to justify so much draconian legislation in the United States (despite the fact that Sweden found no effect on coerced prostitution, and a Norwegian study found that banning the purchase of sex had actually resulted in an increase in coercion).  In criminalization regimes, “end demand” approaches (client-focused criminalization backed by Swedish-style rhetoric) are used to win the support of radical feminists, to blunt criticisms that criminalizing sex work disproportionately impacts women, and to win federal and private grants by disguising business-as-usual prostitution stings as “anti-sex trafficking operations.”  But despite the hype, the truth is that even operations framed as “john stings” or “child sex slave rescues” end up with the arrest and conviction of huge numbers of women; for example, 97% of prostitution-related felony convictions in Chicago are of women, and 93% of women arrested in the FBI’s “Innocence Lost” initiatives are consensual adult sex workers rather than the coerced underage ones the program pretends to target.  And it hardly seems necessary to call attention to the grotesque violations of civil liberties which are the inevitable result of any “war” on consensual behavior, whether it be paying for sex or using illegal substances.

In any discussion of sex work, there will always be voices calling for it to be “legalized and heavily regulated”; unfortunately, the experiences of legalization regimes demonstrates that “heavy regulation” isn’t any more desirable or effective in the sex industry than it is in most others.  For one thing, harsh legalization requirements simply discourage sex workers from compliance.  It is estimated that over 80% of sex workers in Nevada, 90% of those in Queensland, 95% of those in Greece and 97% of those in Turkey prefer to work illegally rather than submit to the restrictive conditions their systems require, and those figures are typical for “heavy” legalization regimes.  One example of an onerous restriction most workers prefer to avoid is licensing; the experience of New York gun owners last Christmas provides a graphic illustration of why people might not want to be on a list for an activity which is legal, but still stigmatized in some quarters.  In the Netherlands, ever-tightening requirements (such as closing window brothels, raising the legal work age to 21 and demanding that the 70% of Amsterdam sex workers who are not Dutch nationals be fluent in the language anyway) have made it increasingly difficult to work legally even if one wants to.  And even in looser legalization regimes, laws create perverse incentives and provide weapons the police inevitably use to harass sex workers; in the United Kingdom women who share a working flat for safety are often prosecuted for “brothel-keeping” and, in a bizarrely cruel touch, for “pimping” each other (because they each contribute a substantial portion of the other’s rent).  In India, the adult children of sex workers are sometimes charged with “living on the avails,” thus making it dangerous for them to be supported by their mothers while attending university.  And in Queensland, police actually run sting operations to arrest sex workers travelling together for safety or company, or even visiting a client together, under the excuse of “protecting” them from each other.

Such shenanigans were the primary reason New South Wales decriminalized sex work in 1995; police corruption had become so terrible (as it so often does when the police are allowed to “supervise” an industry) that the government could no longer ignore it.  A 2012 study by the Kirby Institute declared the resulting system “the healthiest sex industry ever documented” and advised the government to scrap the few remaining laws:

…reforms that decriminalized adult sex work have improved human rights; removed police corruption [and] netted savings for the criminal justice system…International authorities regard the NSW regulatory framework as best practice.  Contrary to early concerns the NSW sex industry has not increased in size or visibility…Licensing of sex work…should not be regarded as a viable legislative response.  For over a century systems that require licensing of sex workers or brothels have consistently failed – most jurisdictions that once had licensing systems have abandoned them…they always generate an unlicensed underclass…[which] is wary of and avoids surveillance systems and public health services…Thus, licensing is a threat to public health…  

New Zealand decriminalized in 2003, with similar results; neither jurisdiction has had a credible report of “sex trafficking” in years.  The reason for this should be obvious: despite the claims of prohibitionists to the contrary, the strongest hold any exploitative employer has over coerced workers is the threat of legal consequences such as arrest or deportation.  Remove those consequences by easing immigration controls and decriminalizing the work, and both the motive and means for “trafficking” vanish.  Three UN agencies (UNDP, UNFPA and UNAIDS) agree, and last year released a report calling for total decriminalization of sex work as the best way to protect sex workers’ rights and health; many prominent health and human rights organizations take exactly the same position.

There is a popular belief, vigorously promulgated by anti-sex feminists and conservative Christians, that sex work is intrinsically harmful, and therefore should be banned to “protect” adult women from our own choices.  But as the Norwegian bioethicist Dr. Ole Moen pointed out in his 2012 paper “Is Prostitution Harmful?”, the same thing was once believed about homosexuality; it was said to lead to violence, drug use, disease, and mental illness.  These problems were not caused by homosexuality itself; they were the result of legal oppression and social stigma, and once those harmful factors were removed the “associated problems” vanished as well.  Dr. Moen suggests that the same thing will happen with sex work, and evidence from New South Wales strongly indicates that he is correct. 

Sex worker rights activists have a slogan: “Sex work is work.” It is not a crime, nor a scam, nor a “lazy” way to get by, nor a form of oppression.  It is a personal service, akin to massage, or nursing, or counseling, and should be treated as such.  They also have another saying, one which echoes the findings of Dr. Moen and the Kirby Institute:  “Only rights can stop the wrongs.”

Notes

¹Throughout this essay, I use feminine pronouns for sex workers and masculine ones for clients because that is the typical arrangement; there are female buyers (usually but not always as part of couples) and male sellers (10% of the sex worker population or higher, depending on the market), but because most legislation – especially of the punitive variety – assumes that buyers and sellers are of the sex traditionally found in those roles, it seems superfluous to overuse the cumbersome “he or she” in places where it isn’t strictly necessary.

²See Laura Agustín, Sex At the Margins, chapter 4.

³See Nickie Roberts, Whores in History:  Prostitution in Western Society, chapter 11.

⁴The author’s “A Brief History of Prostitution in the U.S.” provides more detail.

Unlike other types of “vice,” alternatives to prevailing prostitution policy in America are rarely debated. Maggie McNeill’s lead essay is thus a welcome first step in interrogating the American model of criminalization and considering potentially superior policies.

Americans have one existing example of an alternative to criminalization: Brothel prostitution has been legal in Nevada’s rural counties since 1971, without problems. And a few other jurisdictions have recently considered a more tolerant policy. A 2007 bill in the Hawaii state legislature, endorsed by the ACLU, would have decriminalized indoor prostitution and zoned street prostitution into particular areas. And two cities (Berkeley and San Francisco) have recently voted on ballot measures that would have de facto decriminalized prostitution. In 2008, a sizeable minority (42%) of San Franciscans voted for a measure that instructed police to discontinue making prostitution arrests. It is conceivable that a similar measure might pass in some city, if not a state, in the foreseeable future.

Unfortunately, the vast majority of research on prostitution internationally has focused on systems where all or most of the preconditions for prostitution are illegal. Thus, what we think we “know” about prostitution may be colored by research confined to how it manifests under criminalization, rather than where it is legal. Imagine researching only countries where abortion is criminalized and occurs in unsafe and shady circumstances – then generalizing those skewed findings to “abortion.” This is the situation for prostitution: many of the assumptions and public policies regarding it are based on either folk wisdom or ignorance of the full panoply of policy regimes.

McNeill is right about several things. Starting with her central point, there is absolutely no reason why sexual commerce cannot be viewed and treated like other kinds of work. What makes it different from other work is the stigma attached to it and a set of stereotypical assumptions about the participants and the working conditions. But research shows that such assumptions (e.g., abuse, exploitation, violence) are by no means inherent in prostitution. The first step in normalizing prostitution, as I write in my book Legalizing Prostitution, is that “consensual adult prostitution be officially recognized as work and that participants be accorded the rights and protections available to those involved in other occupations.”[1] 

McNeill is also right to mention conflict over prostitution policy. Such conflict should not be surprising: it is a staple of other controversial issues, such as same-sex marriage, marijuana legalization, and doctor-assisted suicide. Opponents are often well organized, media savvy, and influential with politicians. In the prostitution arena, the most important “anti” forces (1) equate prostitution with sex trafficking, (2) demand blanket criminalization where it currently doesn’t exist, or (3) champion the Swedish system where the clients of sex workers, but not the workers themselves, are criminalized. These forces have met with success, in many nations, in redefining prostitution in ideological terms, creating new offenses and stiffer punishments, and defeating proposals for legalization. McNeill is right to criticize these misguided and counterproductive policies and the fallacious claims on which they have been based.[2] Draconian punishments for consenting adults who exchange sex for money compel them to operate underground, exposing both parties to risk of victimization and exploitation. I should also point out that all of these anti-prostitution campaigns are blatantly gender-biased: they ignore male and transgender workers and are obsessed with controlling women’s bodies – women who are denied individual agency and respect for their decisions and depicted as passive victims. Such anti-feminist paternalism is part of the answer to George Carlin’s famous question: “Sex is legal. Selling is legal. Why is selling sex illegal?”

I don’t know whether McNeill has conducted her own research. Relying on others’ writings, she does recapitulate several mistakes that deserve correction here. First, the criminalization model is not confined to a handful of countries, as she claims. It is essentially – de facto if not de jure – the reigning system in several nations, where the act of prostitution may be “legal” but everything surrounding it, including solicitation or communication regarding price and service, is criminalized. Second, I know of no society that has adopted a policy of pure “decriminalization,” entirely lacking in government regulation. It is a myth that New Zealand and New South Wales, Australia, have decriminalized prostitution with no regulatory apparatus. New Zealand decriminalized prostitution in 2003 but coupled this with nuisance-abatement laws for street prostitution and regular inspections of sex businesses by the police, health department, and social services. This is minimalist legalization, not unregulated decriminalization. New South Wales delegates regulatory decisions to local city councils, and they vary tremendously in both their general orientation to commercial sex (pragmatic vs. moralistic) and in the kinds of restrictions (geographic and otherwise) they place on both businesses and independent operators, some of which are quite onerous. NSW is not an example of pure decriminalization as McNeill imagines.

McNeill uses the terms “heavy” and “loose” legalization; she gives a few examples of each but fails to define these terms. Thus, we have no way of evaluating any particular system, since she offers no criteria for distinguishing the good from the bad. But perhaps McNeill would consider this a fool’s errand anyway, since she seems to advocate radical, unfettered decriminalization. She writes: “even in looser legalization regimes, laws create perverse incentives and provide weapons the police inevitably use to harass sex workers.” These outcomes are neither “inevitable” nor “perverse,” as evidence from several legal regimes shows. Nevada’s extremely comprehensive regulatory system explains why legal brothels have persisted in the state for four decades without controversy. Several other jurisdictions have legalized at least one type of prostitution without “perverse” consequences. A government evaluation of legal brothels in Queensland, Australia, concluded that, “Legal brothels now operating in Queensland provide a sustainable model for a healthy, crime-free, and safe legal licensed brothel industry” and are a “state of the art model for the sex industry in Australia.”[3] The report found that both legal brothels and sole operators (in-call or out-call) had little adverse impact on the local community. And one survey found that 70% of a sample of 205 legal brothel workers and independent escorts said they would “definitely choose” such work if they had it to do over again, and half of each group felt that their work was a “major source of satisfaction” in their lives.[4]

Taken to its extreme, total decriminalization sans regulation would allow street prostitution in any neighborhood; would leave brothels, escort agencies, and massage parlors unmonitored and their owners unscreened for criminal ties; and would allow explicit advertising of sexual services virtually everywhere (internet, newspapers, billboards, television). Whatever one thinks of any of the specific regulations now being instituted in the newly legal marijuana regimes in Colorado and Washington, there is good reason why the framers of these ballot initiatives eschewed unrestricted decriminalization. The failure of Oregon’s more radical ballot measure in 2012 shows the danger of proposing something that is not pragmatic, and the same point applies to efforts to liberalize policies on sexual commerce. The public is much more likely to endorse proposals containing reasonable restrictions than a free-for-all approach.

Fortunately, a set of “best practices” has been proposed. In Legalizing Prostitution, I list about 30 practices that can be used to evaluate existing legal regimes and serve as guidance for states considering legalization in the future. Space limitations prevent a full discussion of these norms here, but I will offer a few that relate directly to McNeill’s essay. I agree with her that the rules should not be “heavy” if by that she means onerous, stigmatizing, arbitrary, or costly to comply with. There should be no “sin tax” imposed on sex operators that does not apply to other business operations. The overall objectives should be health, safety, workers’ rights, and minimum impact on the public:

• I assume McNeill would agree with me that minors should be prohibited from selling sex. This rule is universal among nations that have legalized prostitution.
• I agree with McNeill that sex workers should not be forced to register or be licensed by the authorities. Such attempts have failed everywhere they have been attempted, except in Nevada’s exceptional rural brothels. As the National Organization for Women declared in its landmark 1973 decriminalization resolution, mandatory registration “will result in ongoing persecution of women who register because they do not wish to publicly proclaim themselves prostitutes.”[5]
• Erotic businesses are different: Their owners should be subjected to rigorous background checks. Operators who pass the screening should be licensed, and these licenses should be subject to a periodic renewal process to maintain oversight of these businesses. The cost of the license should be low, as an incentive to operate within the legal sector rather than underground.
• Police are not necessarily malevolent, as McNeill assumes. They can play a constructive role in protecting sex workers’ safety and rights.[6] In the Netherlands, special teams of police officers routinely inspect sex premises and question the workers and owners in a collegial manner. These units are governed by a code of conduct, reprinted in my book.
• Restrictions on advertising are needed, just as they are for alcohol and tobacco products. Given the sensitivity of prostitution for many people, it is best to keep it as discreet as possible. The same goes for the location of erotic businesses, which should be prohibited from locating near schools and playgrounds. Minimizing encroachment on the public reduces the chances of backlash if sex businesses and advertisements are too visible.
• Safe-sex practices and routine health examinations should be encouraged, repeatedly, by the government, but not mandated because of both enforcement difficulties and privacy considerations. Many sex workers already practice safe sex and get regular health checks.
• Institutionalized discrimination against prostitutes and business operators should be illegal. An example is the refusal of banks in several European nations to lend money to owners of legal brothels and erotic clubs. Both workers and business owners should have the same rights as the participants in other types of commerce.
• Finally, we should increase penalties for anyone who engages in exploitation or abuse. Too often, law enforcement has turned a blind eye to instances of parasitical pimping, assault, robbery, and rape of sex workers. Robust punishment for these crimes will send a (hopefully deterrent) message to would-be predators that they will be held accountable.

A regulatory system built on these (and some additional) restrictions is far superior to either criminalization or unregulated decriminalization: it guarantees workers’ rights and can enhance their health and safety; it imposes vital oversight over business owners; and it will attract much more public support than a policy of simple, unrestricted decriminalization.

Notes

Prostitution exists because inequality exists.   At the same time, prostitution embeds into society the very inequality it feeds on; thus perpetuating the subordination of women. 

For prostitution to exist as a monetary exchange, women must be commodified as products in the stream of commerce.  In commercial terms, I have a problem with both supply (too many women live in poverty) and demand (too many men believe they have a right to sexual access).  Both facts require that women be subordinate.  That is why the radical feminist position on prostitution is abolition.  Abolition is the only way to address the root cause of prostitution i.e. personal and structural inequality.  We must both improve the lives of women around the world so that they can truly exercise choice and independence and teach men to understand that sexual access is not a right. 

In an ideal world, where everyone has equal power to negotiate, people could work out their desires and needs themselves.  But no such world exists.  No country in the world has ensured equality for all its citizens, especially women and minorities.  Therefore, it remains the task of societal and governmental institutions to put into place structures that ameliorate and ultimately prevent that imbalance in power.

Almost half of the world’s population lives in conditions of extreme poverty or on less than $1 per day. Of these individuals, seventy percent are women. Many women are forced into prostitution for economic, and indeed sheer survival, reasons; this does not constitute “consent.” The practice of prostitution brands all women as something that can be bought and sold; and therefore, just like slaves, less than full humans who deserve the complete panoply of human rights. 

The answer to the poverty of women cannot be prostitution but must be the fair distribution of power and resources.  Maintaining prostitution as the last refuge for poverty stricken women is exploitation and cannot lead to gender equality. So long as prostitution remains an “option” for poor women, there is no incentive to develop educational opportunities, job programs, or economic policies that could uplift the poor. Prostitution is also often the gateway for entry into sex trafficking.

Human rights or liberties never exist in a vacuum.  One person’s right to swing their arm ends where another person’s nose begins. We do not live on an island; no right is absolute.  Men do not have a “right” to sexual access because that act involves another person who also has rights that are just as important and must be balanced. 

Women have encountered this “rights” argument before and feminists have had to name it time and time again.  Husbands no longer have the “right” to beat their wives; husbands no longer have the “right” to have sex with their wives over objection (in most states); parents no longer have the “right” to beat their children, employers have no “right” to ask sexual favors from their employees, and men have no “right” to have sex with their date regardless of the price of dinner.  Just like the movements that named domestic abuse, marital rape, child abuse, sexual harassment and date rape for what they are – violence against women – we must likewise name prostitution as violence. 

The radical feminist stance against prostitution is based on the lived realities of women, something often missing in the pro-prostitution narrative.  To find out what those lives really are, you must ask the women.  Much evidence shows that the vast majority (89%) of prostituted women want out if they had an exit path.   The evidence also shows that women in prostitution have the highest rates of rape and homicide (50%) of any group of women ever studied, and that they will suffer injury equivalent to victims of state-sponsored torture.[1]

The average age of death for prostituted persons is thirty-four; the practice has a “workplace” homicide rate nearly seven times higher than that of the next most vulnerable group – male taxi drivers.  Research indicates that pimps typically take all or most of the money and, far from protecting or managing their “stable” of girls, they force women and children to earn nightly monetary quotas to avoid beatings. Pimps even “brand” those under their control with tattoos of their names or symbols such as bar codes to demonstrate “ownership” of the girls they control.

In the United States, nearly eighty percent of prostituted women report a history of child abuse, and twelve to fourteen is the average age at which children are first used in commercial sex.  At that age, a child cannot legally quit school, marry, sign a contract, or drive a car. Nor can she give “consent” to enter prostitution.[2]

Legalizing prostitution has a harmful impact on every indicator of violence against women.  A thriving sex industry increases child prostitution and other sex crimes[3] and has a negative effect on how women are regarded by men.[4] The men who engage in it have more discriminatory attitudes toward women and are more accepting of prostitution and rape myths as well as being more violent themselves.[5] Violence against women and children increases when prostitution increases because acceptance or normalization of prostitution sets up the image of women as suitable targets of violence.

The United Nations Special Rapporteur on Trafficking pointed out in her 2005 report that under the UN Trafficking Protocol[6] consent is logically impossible. “Power and vulnerability in this context must be understood to include power disparities based on gender, race, ethnicity and poverty.  Put simply, the road to prostitution and life within ‘the life’ is rarely one marked by empowerment or adequate options.”

Consent is more than the absence of force[7]  but also requires the presence of sexual autonomy.  Sexual autonomy is violated whenever the person has not freely agreed or is otherwise not a voluntary participant.[8]  The International Criminal Tribunal for the Former Yugoslavia concluded that the definition of rape meant more than just body parts but also includes intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person.[9] 

Allegedly, legalization and decriminalization will help women by making the environment safer.  But experiments in legalization have failed.[10] Amsterdam Mayor Job Cohen said, “Almost five years after the lifting of the brothel ban, we have to acknowledge that the aims of the law have not been reached. Lately we’ve received more and more signals that abuse still continues.” According to the Amsterdam police, “We are in the midst of modern slavery.”

The New Zealand decriminalization also failed.  A July 2005 report by Manukau city council said the nuisance factor escalated and street workers quadrupled despite bylaws regulating the location of brothels.  “It was widely expected that the outcome of legalizing prostitution would be that sex trade workers would generally operate from safe, regulated and legal brothels. In Manukau, that has not been the case.”   New Zealand police, meanwhile, say organized crime groups are involved in many aspects of prostitution.[11]  

In the Netherlands, the sex industry increased by twenty-five percent after legalization. In Victoria, Australia, the number of legal brothels doubled, and illegal brothels increased by 300%. A 200% to 400% increase in street prostitution has been reported in Auckland, New Zealand since prostitution was decriminalized.[12]

Further, wherever prostitution is legalized, sex trafficking in the region increases. A 2012 study by Cho, Dreher, and Newmayer, corroborated by comparing figures in Sweden, Denmark, and Germany, concluded that “Legalizing prostitution will therefore almost invariably increase demand for prostitution” and “on average countries where prostitution is legal, experience larger reported human trafficking inflows.”[13]

By contrast, in Sweden when the buyers were criminalized, rather than the prostituted women, trafficking significantly decreased. In its 2004 report, the National Criminal Investigation Department estimated that roughly 400 to 600 women are trafficked into Sweden each year, compared with the 10,000 to 15,000 women trafficked into Finland. Norway adopted the Nordic Model in 2009 and has seen a 20% decrease in street prostitution, a 16% decrease in indoor prostitution, and a 60% decrease in advertisements for sexual activities.

The Nordic Model of targeting demand has proven thus far to be the only successful tool to decrease prostitution and sex trafficking. The effect of the Swedish law has been dramatic. With a population of nine million, Sweden has only one-tenth the number of street prostitutes than that of neighboring Denmark, which has half the population. Of Denmark’s street prostitutes, 50% are estimated to be trafficked.

Prostitution has extremely negative legal and practical consequences for women and women’s rights. A society where full gender equality exists cannot at the same time support the idea that women are commodities that can be bought, sold, and sexually exploited. Prostitution is not only discrimination, exploitation and abuse by an individual man or men, but also a structure reflecting and maintaining inequality between men and women, north and south, white and non-white. Prostitution is the sexualization of power based on gender, class, and ethnicity and negatively impacts society’s view of women. Abolition is the only solution.

Dateline Paris, December 4, 2013:  the French National Assembly criminalizes the purchase of sex – under a Socialist government.  What are we to make of the fact that the French, renowned for their sexual liberality, have succumbed to what Ms. McNeill characterizes as anti-prostitution “hysteria?”

The main take-away is not that many feminists disagree with Ms. McNeill and find prostitution irreconcilable with the dignity of the women who are prostituted (it was principally they who drove this legal reform).  Dianne Post makes this argument eloquently.  The more relevant point here is that the French government was moved to act because a large majority of prostituted persons were from other countries, brought to France by criminal enterprises for the express purpose of being sexually exploited.  These victims of commercial sexual exploitation are not “workers,” they are not free agents acting voluntarily, they are enslaved.  And the French deemed this situation intolerable on human rights grounds.

Curious that the laws of supply and demand have been suspended in France:  how are we to understand that the demand for commercial sex so outstrips the available supply of willing providers that victims need to be dragooned, coerced, and held captive as part of a (very lucrative) criminal enterprise?  There is nothing in McNeill’s rosy characterization of the life of the prostituted person to explain why sexual entrepreneurs were not lined up to fill the demand gap.

The reality is that the vast majority of prostituted persons are not voluntary participants in any meaningful sense of that word.  And this is the logic of the “Swedish model:” precisely because prostituted persons are not usually acting with free will, they ought to be recognized as victims of a crime rather than perpetrators.  The exploiters (pimps) and buyers (johns) on the other hand are appropriately held to be culpable by virtue of their free-will participation in the crime of exploitation.  Nor is this standard a gender-biased condescension, as Ms. McNeill asserts; we need to bear in mind there are both male and female victims.

Consider the situation in the United States, where we find today a profoundly exploitative culture:  each year, 250,000 juveniles, that is, persons under the age of 18, are subjected to commercial sexual exploitation (under federal statute, any juvenile who engages in commercial sex is deemed to be a victim of human trafficking, and a juvenile cannot consent to sell sex).  This figure comes from a review of social science literature conducted by my organization, the Renewal Forum, and is the midpoint of various estimates.  If this seems to you an unrealistically huge number, know that in 2011 the states reported to the federal government 241,136 cases of serious physical, sexual, and psychological abuse, and the last time the federal government conducted research on runaways, 377,300 kids per year experienced a runaway episode in which they were gone a week or more.  What is especially disturbing about the latter figure is that only 21% of those incidences were reported to the police, indicating that the parents weren’t in any hurry to get their kids back.

This is how the trail of exploitation typically begins:  a child is denied the love he or she is due at home, and goes off (as runaways or throw-aways) looking for substitute love in the wrong places.  It is eerie how skilled the exploiters (pimps) are at detecting vulnerable kids.  Their enticement, of course, is the promise of love:  “come with me, baby, and I’ll take care of you.”

Oddly, there are no reliable figures as to the size of the adult population of prostituted persons, but what we do know is that many if not most began as children.  As a society we are providing virtually no services to either juvenile or adult victims, no help to get off the street, and no safe havens in which to rebuild their lives.  I can count almost on one hand the number of organizations across the nations helping victims to exit the life.

Evidently Ms. McNeill did not experience the many pathologies attendant to a life of sexual exploitation.  Lucky for her.  But her experience is atypical among victims.  I have read with disgust, frankly, Ms. McNeill’s cavalier dismissal of the testimony of survivors regarding the reality of their sexual exploitation.  “Next time you see one of these ‘survivor’ narratives,” she wrote in a blog, “compare it to the now-discredited accounts of satanic ritual abuse and the widely-ridiculed tales of alien medical experiments.”  The problem, Ms. McNeill, is the remarkable consistency of these narratives.  And pardon me if I put more credence in the first-person testimony of Kristy Childs (a survivor who is the founder of Veronica’s Voice in Kansas City, Veronica being a murdered friend in the life), Vednita Carter (a survivor and founder of Breaking Free in St. Paul, MN) and the late Norma Hotaling (a survivor and founder of SAGE in San Francisco).  These women have histories which can be corroborated and use their given names.  And they are heroes because they survived the life and are now reaching a hand back to help bring others to safety.

Norma, Vednita, Kristy, and others have shared with me their experiences of being shot, stabbed, held captive, and living through situations in which they were sure they were going to die.  Little wonder PTSD is ubiquitous among survivors.  The life of the prostituted person is an unrelenting horror of serial rape, trauma, and violence.  Dianne Post has already shared the research on the experience of typical victims:  most want out of the life; most are pimped-controlled (which means, inter alia, they did not keep the proceeds of their labor); most have experienced rape as well as assault; most are drug or alcohol dependent; many if not most began the life as juveniles.

A study in Canada found that the mortality rate for girls and women in prostitution was 40 times higher than the national average.  In fact, the incidence of murder and other crimes being perpetrated against prostituted persons with police indifference is so intolerable that my organization is looking for the right circumstance to bring a class action case for denial of equal protection.

In short, prostitution cannot be considered work.  “Sex work” is merely an attempt to put lipstick on the pig of commercial sexual exploitation, to normalize what is in fact a crime.  Where prostitution has been legalized but regulated, Ms. McNeill herself notes that most victims have remained extra-legal, due, she speculates, to the burden of regulation.  I think instead most victims remain outside the legal system because they are being controlled by criminal enterprises.

Finally we get to the question of what Ms. McNeill is actually proposing, and here her essay is a bit vague.  Is she advocating the repeal of all laws pertaining to prostitution?  The measure of the justice of this proposal is what the effect will be on those who are most vulnerable:  juvenile victims of commercial sexual exploitation, and adult victims who are desperate to get out of the life.  As it is, we are combatting official indifference and ineffectual window-dressing programs (here I suspect I agree with Ms. McNeill concerning the FBI’s Innocence Lost Initiative).  Signaling to law enforcement that there is no crime associated with prostitution will move our society in precisely the wrong direction.

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.

Dianne Post and Steven Wagner are activists opposed to sex work, not social scientists, so it is not surprising that they recapitulate a host of common myths about prostitution. I and other social scientists have thoroughly demolished these fictions in our writings, but I can only tackle some of them here.[1] The central problem is that both Post and Wagner make metaphysical claims about what prostitution “is”—essentialist notions that are based not on empirical evidence but instead on each writer’s personal value judgments. According to them, prostitution “is” oppression, violence, male domination, exploitation, et cetera. The main reason they are so adamant about this is that they are alarmed that some readers might consider prostitution to be work, that it might be normalized like other economic transactions, that it might be regulated by the state like other enterprises, and that willing buyers and sellers might feel freer to engage in this kind of activity if it could be destigmatized. They are dismissive of individuals who actually engage in sex work, dismissing their views and experiences and treating them rather paternalistically—superimposing on them what they think sex work is really about.

Post does cite some “studies” to support a few of her claims, but almost all of these are writings by other anti-prostitution activists (Melissa Farley, Janice Raymond, Mary Sullivan). There is no way we can rely on the claims made by these writers, as their main goal is to abolish sex work—thus compromising their ability to do objective empirical research. When Post cites numbers, therefore, we must dismiss them because they are based on fatally flawed sources. Notions that the vast majority of sex workers were abused as children, began working as adolescents, that most of them have pimps, that they want to leave this work—all are myths when generalized to most or all prostitutes. The majority of research on prostitution centers on the street sector (and small, unrepresentative samples within the street sector), not on indoor venues and certainly not on upscale providers. The research we do have on middle- and upper-tier prostitution offers a strikingly different picture than what we find on the streets.[2]

A glaring bias: Post and Wagner refer exclusively to women, ignoring male and transgender sex workers, who comprise a sizeable segment of the trade. Their opinions about “prostitution” thus neglect a major sector of this world. These writers might also be surprised to learn that some female and male sex workers sell services to women! Is that about “inequality” as well, as Post claims is intrinsic to prostitution?

Post draws parallels between prostitution and other social problems, like domestic violence and marital rape. This is a false analogy. Violence occurs both in prostitution and in the family, but no one is advocating abolishing families because some of them experience violence. Violence occurs in prostitution, but this does not mean that prostitution is, in itself, a violent institution any more than domestic violence renders families inherently violent.

Apparently Post did not read my essay, where I provide some details on legal, government-regulated prostitution.[3] She rehearses a set of fallacies about a few of these legal systems. The city council in Manuklau, New Zealand has been critical of street prostitution because some residents have complained about nuisances. This is not an indictment of legal prostitution, but only one sector of the trade. Post’s claims about the Netherlands are anecdotal and lacking in source documentation. The situation there is much more complicated than she imagines. It is absolutely not the case that “experiments in legalization have failed,” as she thinks. As I point out in my essay, legal prostitution has manifested itself in a wide variety of ways around the globe—some better than others—and it is cavalier to claim that they have all “failed.” But I understand that Post needs them to fail in order to support her case against prostitution in general.     

Despite the way the Swedish system has been packaged, as a “success,” the evidence does not support this, as McNeill and I indicated in our essays. One must be careful to disentangle what advocates and the Swedish government say about the Swedish system, which criminalizes clients but not providers, and the empirical reality on the ground—which has been well documented.[4] Just because the French legislature is on the verge of replicating the Swedish approach—something that has generated a firestorm of opposition in France, by the way—does not validate this policy, as it will only force sex workers further underground and increase the potential for risks—as it has in Sweden.

Wagner’s essay deserves much less attention because he provides no sources for his claims. It is simply an opinion piece, lacking in evidence from research studies. Like Post, he embraces a package of myths. For example, even though he acknowledges that “there are no reliable figures” regarding age of entry, he nevertheless insists that “many if not most began as children.”  In other words, let’s draw conclusions despite the lack of evidence!  He insists, again without evidence, that most prostitutes experience “pathologies,” and when he hears from someone who hasn’t (McNeill, he thinks), he uses the common trick of calling them “atypical.” How does he know what is typical in this sphere? His only evidence is three anecdotal stories about individuals who were victimized and then formed rescue organizations—hardly a representative sample.

In order to generate support for his views, Wagner constructs an image of sex providers that is designed for shock value: “The life of the prostituted person is an unrelenting horror of serial rape, trauma, and violence.” This claim is contradicted by a wealth of social science data on the experiences of individuals who engage in sexual commerce. We know from this research that there is a broad continuum of pathways into prostitution, working conditions, relations with employers, experiences with customers, and job satisfaction.[5] On each of these dimensions, individuals’ experiences vary tremendously—from very negative to very positive to everything in between (i.e., mixed experiences). But it is understandable that Wagner, like Post, would accent only the negative and try to universalize it—because their agenda is to criminalize and ultimately abolish all forms of sexual commerce. This conflicts with the position of the National Organization for Women, which passed a resolution that “opposes continued prohibitive laws regarding prostitution, believing them to be punitive” and “therefore favors removal of all laws relating to the act of prostitution.”[6]

Notes 

It is no argument to say as McNeill does that animals practice prostitution and we are, after all, animals.  Some animals kill their young, and we do too, but we don’t therefore make it legal.  It is no argument to say that prostitution has always been with us; so has slavery but we don’t make it legal.  It is no argument to say that some prostituted women benefit from prostitution; so did some slaves but that doesn’t justify the mistreatment of the balance. 

Proponents of prostitution criticize others as meddlesome for wanting to “protect” women.  But they too claim legalization or decriminalization will “protect” women and improve safety and human rights.  But in a direct rebuttal to Weitzer,[1] Farley provides proof that indoor prostitution is no safer than outdoor.  Peer reviewed studies show that neither legalization nor decriminalization improves the health, safety or human rights of women.[2]  Rather, prostitution increases inequality and maintains race, class, and caste status.[3]

Contrary to Weitzer’s claims, legal prostitution in Nevada is not without problems. Quite the opposite. Nevada has the highest rates of domestic violence-related homicide in the United States, and rape and sexual assault are rife. Women of Nevada are raped at rates that are twice those of New York and 25% higher than the U.S. average. According to prostitutionresearch.com, “College-aged men in Nevada are much more likely than college men in other states to use women in prostitution and to go to strip clubs and massage parlors.” Nevada college students tend to justify sexual exploitation and consider it acceptable that their future sons would use women in prostitution and their future daughters might become prostitutes.[4]  

As Julie Bindel reported,[5] after she visited four legal brothels in Nevada, “the trailer-type compounds are in the middle of nowhere and the women often live in prison-like conditions, locked in or forbidden to leave…” The women in the legal brothels are considered to be “private contractors” and must register as prostitutes at the sheriff’s office. They are also legally required to be tested once a week for sexually transmitted diseases - something not required of their clients. The women must present their medical clearance to the police station and be fingerprinted.”  Brothel owners take half the women’s earnings plus the women have to pay tips and fees and for their own supplies. “Nevada’s unlawful prostitution industry, according to research by the U.S. Government, is already nine times greater than the state’s legal brothels.”

Bindel visited four of the brothels and wrote, “It has the feel of an institution, and the barbed wire surrounding it adds to that effect.”  One woman bragged about how nice the pimp was because he let them go outside and didn’t even lock the door. The pimp bragged about how the women were cash cows. This hardly sounds like empowerment.

In fact, Mustang Ranch is modeled on a prison, and the women used to be called inmates.  However, the owner admits, “As soon as you legalise it turns the predators loose… You have to regulate. We have a stable of 1,000. If Susan didn’t run this place with an iron fist it would get out of control. You need to run this place with tough love.” The women are not allowed out without permission and even then are accompanied by a pimp.  Many are not allowed to have a car and must work 14-hour shifts for fifteen days in a row. The manager even bragged about pimping a 22-year old learning disabled girl since she was turning tricks at 12 years of age.

The utter failure of legalization is illustrated by the system in Australia.  The Occupational Safety and Health Codes guarantee the right of all workers not to have their health put at risk while carrying out the ordinary requirements of their work.  Therefore, to protect the “sex workers” from health risks of STDs and HIV, the customers, not the women, would need to have health checks prior to any contact.  It is, after all, the customer who brings the harm to the worker.  To protect the worker, a medical certificate would be required from each customer that s/he does not have any STDs or HIV.  To require health checks of the women violates the purpose of the law because if the women find at their weekly health check that they were infected, they were obviously not “protected,” and it’s too late, especially if they are infected with HIV.  This structure shows clearly that it is the intention of the Australian state to protect the customer, not the “worker.”

The Australian OSHA regulations also say that a woman can refuse to have sex with a man who won’t put on a condom.  How should this be enforced?  A video camera in every room?  A panic button around her neck – which might lead to her being strangled?  A microphone perhaps where she will yell out a magic word and guards will come and remove him?  Could they do that before he infected her? Should he then be arrested?  At the least the brothels should keep a computerized list of men who have refused to wear condoms and check the identification of the men upon entry and if they are on the list, refuse to allow them inside.  This is of course not done.  Instead in Thailand, photos of the women who had sex without condoms were posted publicly. 

Guidelines to implement the laws have also been drawn up in Australia.  One guideline is to have a 100-watt bulb in the room so the woman can do a visual inspection of the man’s penis to see that he has no obvious disease or, if on an “outcall,” take a small flashlight to do the same.  Further, she is to share her knowledge of hygiene and health with the customer.  Besides the fact that sexual diseases do not all have visual manifestations, most women are not nurses and would not know what to look for, most men would not allow their genitals to be inspected by flashlight nor could the women credibly share their knowledge of hygiene and disease with the john.  To enforce this safety requirement for women, the man should have to pass through a screening with medical personnel who question him about his reproductive organs and do a thorough visual screening in addition to the required blood test.  This is course is not done.

Perhaps the state could pay for the women to go to medical or nursing school to get the required education and then, when they have finished school, if they “voluntarily” decided to return to being a prostitute they could be in charge of inspecting genitals or perhaps they would prefer to be a doctor or nurse; but they are then free to choose.  Instead the government tells the women, [the] “only think (sic) wrong with sex work is society’s negative, hypocritical attitude towards it. You deserve as much support for your career choice as Mother Teresa does for hers.”[6] 

I agree with one thing McNeill says: Feminists have abdicated their place in the fight against trafficking and that vacuum has been filled by the religious right, whose reasons, methods and goals are frequently not compatible with those of feminists. Our focus is on human rights and equality for the woman.

The legal status of prostitution is a measure of a society.  Law is not just a set of dos and don’ts.  It sets a tone; it makes a statement about the type of society we are.  When segregation was legal; it made a statement.   When women could not vote, it made a statement.   When seven-year-old children went to work in the mines, it made a statement.  When women are viewed as nothing more than receptacles for men, when they can be purchased and are rated as consumer products on line, it makes a statement. In order to believe that prostitution is sex work and thus like any other work, we must forget everything we know about inequality in the world, about gender politics, about the gap between the rich and the poor, the north and the south.  Only then could we justify supporting such a structure.[7]  Because once we acknowledge the harm, we cannot turn our eyes away.

I find myself increasingly baffled by Ms. Post’s responses, which despite cursory references to my essays appear to come from someone who hasn’t read them at all.  I can think of no other reason why she would begin her latest reply by quoting the charlatan Melissa Farley, whose biased, dishonest and repeatedly debunked “studies” I spent two lengthy paragraphs exposing in my reply to her first response essay.  Yet out of seven footnotes in her second one, five are attributed to Farley.  That isn’t to say that the other two are any more credible; one of them references the Australian ideologue Sheila Jeffreys, a person so out of touch with reality that she wrote (in her book The Idea of Prostitution), “The act which men commonly perform on prostituted women is penis-in-vagina sexual intercourse.  There is nothing ‘natural’ about that act.”  Jeffreys has also described heterosexual feminists as “enemy collaborationists” and decried heterosexuality as “the basis of oppression of women by men.”  Post’s remaining reference is to Julie Bindel, a British journalist who derides respecting the sexual agency of adult women as “fun feminism,” has repeatedly attacked transgender people and, like Farley and Jeffreys, is not exactly known for her honesty.  While it’s true that Ms. Post may have been unaware of these women’s estrangement from important qualities like truthfulness and ethicality, it seems unwise for her to continue to associate her position with them without as much as a single reference in answer to the well-known criticisms, especially those I presented about Farley.

This is even more true in light of Ms. Post’s apparent recognition of the concept of guilt by association; though it is true that in her attack on the Nevada brothel system she clearly states that she is responding to Dr. Weitzer, one would think she would have at least acknowledged that one of the points I made in my lead essay was that legalization systems such as that in Nevada  are not all that preferable to criminalization, and so onerous that most women prefer to work illegally rather than submit to them.  In fact, the attack on the Nevadan and Australian brothel systems which makes up the lion’s share of her response takes on the appearance of a straw man when one considers that my lead essay specifically states that legalization systems create nearly as many problems as they solve, and that one of the primary reasons New South Wales decriminalized prostitution rather than legalizing it was to avoid these problems.  One might even be forgiven for coming to the conclusion that Ms. Post felt compelled to attack a legalization model which I don’t support due to a pronounced lack of valid factual criticisms of the decriminalization model which I, every major sex worker rights organization and a growing number of health and human rights advocates do support.

The sections of Ms. Post’s response not devoted to citing debunked dogma or attacking a legal system neither I nor the other mentioned authorities recommend are devoted to a disturbing reiteration of common myths about sex work: among these are the 19^th-century notion that sex workers spread disease (when in fact, our rates are consistently lower than those in the non-celibate sector of the general public); the strange but popular belief that sex work involves a total, passive surrender to men’s desires that virtually nobody (other than Sheila Jeffreys and company) pretends is characteristic of noncommercial sex; and the demonstrably false claim that the violence associated with criminalized sex work derives from the sex rather than the criminality, an idea which must surely seem suspect to anyone who has lived through the War on Drugs or is familiar with the history of the gay community over the past century.

I do agree with Ms. Post about one thing, though; the legal status of prostitution is indeed a measure of a society, and it does indeed set a tone.  When government is allowed to criminalize the consensual behavior of rational adults, it makes a statement.  When women’s work is devalued as being “receptacles for men,” and when sex is defined as the totality of our being (so that sale of sex is defined as sale of our whole persons), it makes a statement.  When individual choices are dismissed by powerful authorities whose decisions are inflicted on those individuals by organized violence, it makes a statement.  And when the sending of such “messages” takes precedence over the health and well-being of real humans, it makes a very real and truly horrifying statement.     

Those in favor of prostitution can call me names, deliberately misread my words and criticize my citations all day and no further light will have been shed on the issue because one fundamental truth is being ignored  – each person from birth is born with inherent freedom, dignity, integrity, and equality. 

For the sake of argument, let’s assume that there is absolutely no harm to women in prostitution. Let’s assume everyone is treated well every time, that no stigma or psychological harm exists, and that every prostituted person makes a decent living and works in comfortable surroundings.  If that were true, should prostitution be normalized in society?

I would still say no.  Why?  Because it does not comport with the fundamental heritage of freedom, dignity, integrity, and equality that each person is both with.

To see why, let’s take slavery. Suppose all African slaves had been treated as part of the family (as sometimes claimed), had good living and working conditions, and had decent pay. Some people even argued that African slaves were better off because in Africa they were ignorant savages, and here they were exposed to civilization, especially the Bible and Christianity.  Some people argue today that prostituted women from poor countries or who were living in poverty are, in fact, better off.  If that had been the true condition of African slaves, would slavery have been acceptable?

No, it would not.  Why?  Because it did not respect the human rights and dignity of each person; because it set up a structure of oppression – a hierarchy – in which every white man was better than any slave no matter their individual attributes.   

But, you say, prostitution is not like slavery because the women are not owned.  The facts are not so.  The pimps, brothel owners and criminal gangs do in fact believe they “own” those women.  They do buy and sell them even at auction in a market.  They brand them and they kill them if they rebel or try to escape.

But even if none of that happened, would prostitution be acceptable?  No, because though the subordination of women did not start with prostitution, prostitution reinforces it. It doesn’t matter if the prostituted person is female, child, male or transgender – the structure of “power over” is the same; the person is put into a position of subordination. 

The subordination of women is in fact the prototype of discrimination. Discrimination against women is the only discrimination that occurs from, and even before, birth.  (Babies born with a visible handicap or a Black person if hue distinctions exist might also experience discrimination from birth.)   But most black or Jewish children for example do not experience discrimination in the family because the family is like them.   Not until leaving the family or the neighborhood, at preschool or kindergarten or even later, does a boy experience discrimination. 

But girls are discriminated against at or even before birth.  When the child in utero is female, the difference in treatment may be a variety of acts from less pre-natal care to femicide.

Girls learn from birth that we are different and “less.”  The structure of prostitution exacerbates that structure of subordination for all women by claiming some women can be bought and sold.  This reinforces the Madonna/whore dichotomy that imprisons both the Madonna and the whore in man-made boxes surrounded by stereotypes.

Prostitution is wrong as slavery was wrong for the same reasons.  No amount of regulation or oversight will fix it.  A kinder, gentler slavery is still slavery.  When you set up a dichotomy between people, you set up a system of discrimination and oppression.  “Separate but equal” is neither separate nor equal. 

A true belief in the humanity of each person that includes that person’s freedom, dignity, integrity and equality requires extending that humanity to all people. A person cannot believe in a system that reinforces a distinction and a structure of power over any segment of society, particularly not over the female half of it. To fail to understand that means you don’t want to.

Dianne Post, in her latest piece, claims that I (and apparently Maggie McNeill) have “deliberately misread” her words. I have misread nothing Post has written. Instead, I criticized her essentialist assumptions about what prostitution “is about” and her use of terribly flawed sources to try to support her grandiose claims about prostitution.

I will not rehearse here the many criticisms I made of her assumptions and opinions in my two previous essays, except to say that her equation of prostitution with slavery is utter nonsense. And it is quite clear that Post has a deeply moral objection to prostitution, no different than people who have a moral antipathy to other consensual activities, like homosexuality and abortion. No amount of social science evidence or testimony from people who engage in sex work will alter Post’s personal opinions. And they are just that: personal opinions grounded in her particular definition of unacceptable behavior.

A few days ago the Supreme Court of Canada struck a blow against such narrow moralizing. It ruled unanimously (9-0) that Canada’s three prostitution laws are unconstitutional. The three laws pertain to “communicating in public” for the purpose of prostitution, owning and operating a “bawdy house” (brothel), and “living on the avails” of someone else’s prostitution (a pimp, partner, manager, boyfriend, etc.). The Supreme Court upheld a lower court’s ruling that all three provisions violated the country’s Charter of Rights. The court declared that these laws deprive prostitutes of “security of the person in a manner that is not in accordance with the principles of fundamental justice.” Because criminalization forces them to operate in the shadows, “the prohibitions all heighten the risks the applicants face in prostitution … by imposing dangerous conditions” on them. The ban on communicating for the purpose of prostitution endangers street prostitutes especially, because they are prevented “from screening potential clients for intoxication and propensity to violence”; the prohibition on brothels prevents prostitutes “from working in safer fixed indoor locations”; and the ban on “living on the avails” is overly broad, failing to “distinguish between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards.”

The ruling is entirely consistent with the harm-reduction paradigm. It implies that antiquated moral attitudes should be irrelevant in prostitution law, and that the law should be grounded instead in a nation’s commitment to defending human rights and extending protections to all citizens.

Basically, Dianne Post’s argument in her latest, “Prostitution Reinforces the Subordination of Women”, boil down to “prostitution is wrong because I don’t like it.”  She fails to provide even a single valid reason why the reader should accept her flat statement that the exchange of money somehow transforms a perfectly normal act that few would consider intrinsically harmful into the bane of female existence she paints it as; furthermore, she asks us to believe that the majority of sex workers are “owned” by pimps, brothel owners and criminal gangs, that they are “sold at auction in a market”, and that these ruffians “brand them and they kill them if they rebel or try to escape.”  But none of these things are true except in the rarest and most unusual circumstances, and the conditions which produce such exploitation are neither unique to the sex trade nor restricted to women.  Study after study has demonstrated exactly the opposite:  the overwhelming majority (about 98%, as I explained in my lead essay) of sex workers make the best choice available to them under the circumstances, which are no more or less constrained than the choices of other men and women from similar backgrounds.

However, Post also tells us that even if she recognized this lurid fantasy for what it is, she would still believe the selling of sex was wrong for reasons she cannot adequately explain.  Her attempt to do so largely consists of an ill-considered comparison to slavery, but I must point out that since slavery is unpaid labor, the unpaid sexual labor people provide to others (for all the myriad reasons humans have sex) might be considered a step closer to it than the paid sexual labor practiced by sex workers.  Indeed, it is not unusual for sex workers to half-jokingly criticize other women for giving their sexual favors away rather than charging for them; a recent example of this was the “#banfreebies” hashtag on Twitter (http://feministing.com/2013/09/25/guest-post-sex-workers-clap-back-with-banfreebies/), under which sex workers from around the world lampooned the arguments of prohibitionists by joking that women who don’t charge suffer from “false consciousness,” that they are “victims” in need of “rescue,” that unpaid sex is a form of rape, etc.  The ease with which these propagandistic statements are reversed from paid sex to unpaid reveals the plain truth of the matter:  that there is no clear and substantive moral difference between the various motives for which a person might have sex.  An external observer might have a hard time discerning whether a person had chosen to engage for pleasure, love, intimacy, gratitude, excitement, spiritual fulfillment, money, or any other reason, yet Ms. Post asks us to believe that the one single motive, money, is somehow “wrong” and harmful.  Perhaps she believes commercial exchanges are inherently demeaning to women, in which case it’s unclear how hiring oneself for sex could be any worse than hiring oneself as a writer, advocate, or teacher.  Or, given that Post cited Sheila Jeffreys in her second essay, it may be that she accepts Jeffreys’ doctrine that the very act of heterosexual union is intrinsically subordinating to the female; if that is the case, it’s difficult to imagine how commercial sex could be especially so, when its terms are usually negotiated much more clearly than those of the noncommercial variety.  

But aside from all this, Post’s argument appears to rely on a deeper, even more abhorrent concept.  Those who wish to control others’ lives often insist that the private, consensual behavior of individuals has some mystical negative effect on people who do not know them and are in no position to be affected by them in any way. Individuals are told that the violent abrogation of their personal autonomy is necessary for the advancement of abstractions like “The Faith” or  “national pride”; in this case it’s “the equality of women.”  Post claims that sex work is not merely harmful to the individual, but to an imaginary gestalt entity comprising all Womankind, whose needs (as defined by governmental feminists) supersede those of individual women; though she speaks theoretically of the freedom and dignity of each individual, in reality the system she supports (the Swedish model of criminalization) uses police violence to suppress peaceful, consensual behavior which offends the sensibilities of those in power.  And while she claims this violence will somehow free the feminine gestalt from what she views as “subordination,” individual women who fail to conform to the State’s definition of “integrity” are infantilized, spied upon, denied a livelihood, deprived of their children, and evicted from their homes.  All of her hand-waving about “slavery” is designed to obscure the fact that around the world, in every country, the vast majority of sex workers are unified in calling for decriminalization; indeed, the entire premise of her essay is that our wishes are less important than feminists’ feelings that our work is “demeaning to women.” 

Last Friday, the Supreme Court of Canada listened to us; in a unanimous decision it struck down the Canadian laws which make sex work more difficult and dangerous, laws which served no purpose other than to “send a message” of the sort Ms. Post favors.  And in doing so, the court made a clear declaration of its own:  that such “messages” are unacceptable in a civilized society when they cause harm to the individuals on whom they are imposed.  It may be that Canada’s conservative government may attempt to impose new and even worse laws in place of those which were overturned; there are many who believe, as Post does, that the violent suppression of individual rights is a “price worth paying” to promote their personal ideas of morality and social purity.  But fortunately, such people no longer form an overwhelming majority as they once did, and ever-larger numbers are beginning to recognize that the rights of individuals must always take precedence over collective fantasies, no matter how dear they may be to those who believe in them.

The recent decision of the Canadian Supreme Court in Canada (Attorney General) v. Bedford, 2013 SCC 72 (20131220) supports many of the arguments the abolitionists have made against prostitution.  The court agreed that prostitution is non-consensual, dangerous, exploitative and represents the subordination of women. However, since prostitution is legal in Canada, they focused only on safety issues and fashioned a remedy to offer what protection the state can under those circumstances.

Three provisions of the Criminal Code were attacked:  210, making it an offence to keep or be in a bawdy house; 212(1)(j) prohibiting living on the avails of prostitution, and 213(1)(c) prohibiting communicating in public for the purposes of prostitution. 

The court examined the case on three issues: arbitrariness (where there is no connection between the intent and the effect of the law), over breadth (where the law goes too far and interferes with other conduct), and gross disproportionality (where the effect is much stronger than necessary to achieve the objective).  The principles compare the rights infringed by the law with the objective of the law, not with the law’s effectiveness or coverage. 

The question for the court was whether the three laws increase the risks women face in prostitution.  If so, the laws should be eliminated because it is the job of the state to decrease violence toward women (para 59-60). The court notes that the lead claimant, Bedford, had a difficult childhood and was subject to various types of abuse, and that all three claimants experienced violence in prostitution. The goal of the decision was to increase the safety of women in prostitution not end the violence against women. 

The court found that the provisions prohibiting a bawdy house make prostitution more dangerous because it prohibits indoor prostitution, thereby forcing women to do out-call or street prostitution, in which the court found that the women face an alarming amount of violence (para 361) including a high homicide rate. (para 135) While the court admits that all forms of prostitution are dangerous, they perceive that indoor may be safer than out-call or street prostitution, and therefore should not be prohibited.  (para 61, 65)  The court also acknowledged that it is the conduct of pimps and johns that is the immediate source of harm to prostituted women (used in the generic sense).  (para 89)  But that does not absolve the government from doing what it can, in a country where prostitution is already legal, to protect the victims.  

The court had found previously (R. v. Downey, [1992] 2 S.C.R. 10) that prostitution was a parasitic relationship (para 66-67), and that pimps should be targeted for their parasitic, exploitative conduct (para 137), which justified the prohibition of living on the avails of prostitution.  But the provision was so broad it prevented legitimate relationships e.g. drivers, bodyguards, perhaps even roommates and adult children from living with or being paid by a woman in prostitution.  Therefore, because it would prevent a woman  from hiring a legitimate bodyguard or provide other safety mechanisms, it could harm her security. 

The purpose of the communicating provision ((213(1)(g)) was to eliminate social nuisance accompanying the public display of the sale of sex (para 146).  While the court admitted that prostitution includes exposing young people to violence, drugs, crime, victimization, and economic disadvantage and that, “…   exploitation, degradation, and subordination of women that are part of the contemporary reality of prostitution,” the judge said the reason to ban communication was not to stop the exploitation, degradation, and subordination of women, only to remove it from public view.  Thus, while the court agreed with the abolitionists that prostitution inherently does exploit, degrade, and subordinate women, they don’t seek to stop that, only to hide it.

Since the prohibition on communicating in public interferes with the woman screening potential johns for safety issues, it was likewise struck down. (para 68, 71-2)

However, the court agreed that few, if any, people freely choose prostitution, admitting that many prostituted persons have no meaningful choice.  (para 86) As the court pointed out, finances, drug addictions, mental illness, or compulsion from pimps marginalizes the population.   

The case was brought under s. 1 and s. 7 of the Canadian Charter but the court specifically decided it only on s. 7. Section 7 is solely concerned with whether the law’s impact on security of the person can be justified.  Section 1 is concerned with whether the law’s impact is justified when considering the public interest.  The public interest was not considered in this case as the court did not look at whether the law itself had a positive or negative impact on society (para 121) or whether the law itself furthered the public interest.  (para 125)

The court has admitted that prostitution is inherently dangerous, that pimps and johns are inherently harmful, and that the state has an obligation to protect the victims. However, in a legalized system such as Canada’s, the court believed it could only ameliorate the harm rather than eliminate it.  Abolitionists believe the harm must be eliminated, not only because of the physical, psychological, economic, and social harm but also because of the violation of fundamental human rights. 

We all agree that women should not be criminals nor treated as criminals. That is the basis of the Nordic model. The Canadian case agrees that pimps and johns are harmful and that prostituted women are in a dangerous situation. But rather than stopping the harm, the decision says, we’ll try to give you, the victim, tools to use on an individual basis to improve your safety.

It’s like saying that because we know that one-third of women suffer physical violence and another one-third verbal and psychological violence in marriage, training in martial arts and psychological manipulation should be required for women before any marriage license is granted so the victim has the tools to control the violence. 

On the other hand, the Nordic model makes the same statement that we know johns and pimps are harmful, and the women are in a dangerous situation, so we’ll stop the harms on a societal basis, not leave the job up to the victim in her individual capacity.  The Nordic model is in conformance with international law that requires states to protect citizens not only from state-sponsored violence but from private violence as well. 

The court also did not leave prostitution unregulated.  Because prostitution is a matter of great public concern, the court felt it could not simply overturn the laws immediately leaving no regulation, and therefore, they suspended the ruling for a year to allow Parliament to impose limits on where and how prostitution may be conducted.  (para 165, 167, 169)

In the Canadian decision, the court admitted that violence toward prostitutes exists and that the degradation and subordination of women is what prostitution represents.  In spite of that acknowledgement, the court has tried to fashion a kinder, gentler type of prostitution.  Sweden, on the other hand, also acknowledged the subordination and degradation of women exemplified by prostitution and has decided to tackle the underlying problem because, if a country truly believes in equality and human rights of all citizens, it is the only way.

In his concluding remarks from the October Cato Unbound, Ilya Somin wrote:  

 …my critics and I do not accept the view that the voters have an intrinsic right to make political decisions on the basis of ignorance. As John Stuart Mill emphasized, voting is not a purely personal right, but rather the “exercise of power over others.” It must be done with at least some reasonable degree of knowledge and judgment.

That philosophy is as pertinent to this month’s discussion as it was to October’s.  As these essays have amply demonstrated, the case to criminalize sex work is not based on fact or even on partial information interpreted by those most knowledgeable about the subject; it instead relies entirely upon irrational and quasi-religious beliefs supported by folk tales, unverifiable testimony from anti-prostitution crusaders, bogus research, misrepresentation, and outright lies.  Yet this argument is touted by its proponents as not only equally worthy of consideration to the argument for decriminalization (which is supported by facts, sound research and the verifiable testimony of tens of thousands of sex workers all over the world), but even as superior to it.  When prohibitionists aren’t ignoring the evidence or dismissing the views of sex workers as “unrepresentative” or the product of “false consciousness,” they are indulging in circumstantial  ad hominem arguments, branding sex worker rights advocates as “pimps” because many of them have a personal interest in decriminalization.  This is a particularly odious strategy because while tremendous sums of money are available for prohibitionist activity, the majority of prominent sex worker activists (such as myself) are already retired and therefore no longer have an economic “dog in the fight.” Furthermore, there are few (if any) full-time salaried positions in sex worker activism, despite the prohibitionist myth of a wealthy “pimp lobby.”

The purpose of political debate, especially on a contentious subject like the one at hand, is not to convince one’s opponents; it is to present arguments, counter-arguments, and information so the members of the audience can come to a rational, informed opinion on the issue before engaging in democracy, that “exercise of power over others.”  The interactive nature of the debate process reveals the strengths and weaknesses of the participants’ positions and allows each side the opportunity to present evidence and arguments to counter the other’s claims.  The present political climate is so virulently anti–sex worker that prohibitionists are normally allowed to pontificate without opposition, and reporters credulously repeat their claims without as much as the pretense of fact-checking; the opportunity to refute the generally unchallenged prohibitionist claims, and to present the case for respect of individual rights, is therefore welcome indeed.

For over a century now, voters have had precious little information on the reality of prostitution and have made political decisions based on nothing but ignorance, religious morality, and personal prejudice; under those circumstances it’s no wonder that in many countries they have favored oppressive laws that endanger sex workers and deprive them of basic human rights.  But the power of the Internet has changed all that. The Internet has allowed us to speak up for ourselves, in opposition to those who claim to want what’s best for us while supporting systems that do nothing but leave us vulnerable to violence, state-sponsored and otherwise.  As time goes on it will become increasingly difficult for citizens, legislators, and judges to ignore the damage caused by sex work prohibition, just as it has become increasingly difficult for them to ignore the damage caused by its ideological sibling, drug prohibition.  An ever-larger number of people are realizing that the state should not be allowed to suppress consensual, private behavior with armed violence, so it is inevitable that the prohibition of sex work must eventually follow the prohibition of other private sexual behaviors into the rubbish-heap of history. I’m proud to be one of those who are working to hasten the day when it does.