This is essay is part of the OOPS course Law and Sexuality.
Current day U.S state legislations criminalize prostitution, with the exception of Nevada. The criminalization of prostitution contributes to the legitimization of the state violence and surveillance of Otherized bodies – in this context, such bodies belong to sex workers. Anti-prostitution state legislature perpetuates the oppression of marginalized communities, as this is dealt with through the state’s employment of several different forms of violence. Not only are sex workers subject to physical and sexual violence from the police, but they are also subject to structural economic violence, through the precarization of their work. The criminalization of prostitution mandates the arrest of sex workers, which is also an act of economic violence, since it strips laborers of their ability to sustain themselves. Incarceration is thus definitely one oppressive tactic used against sex workers.
My argument for the legalization of prostitution lies on two conceptual planes. The first is a tangible one, located in the material realm: to discontinue state-justified violence against marginalized bodies and to recognize the labor that sex workers provide as legitimate. The second conceptual plane is more ideological: I hope to see a shift in our society’s attitude, as a result of the legal acceptance of sex work, in order to decrease the social ostracization that sex workers currently face.
The criminalization of sex work establishes the illegitimacy of this type of labor, which is rejected to the point of putting sex workers at risk of incarceration. Historically, androcentrism and male domination have rigidly established chastity and purity as feminine virtues, conveniently making the prostitute the antithesis of the “socially acceptable” woman. This is where one can locate the ideological roots of such anti-prostitution legislation. However, we must also acknowledge that women regularly face sexual harassment in their workplace (1 in 3 women experience sexual harassment in the workplace according to Cosmopolitan 2015 survey). We must ask, why is this blatant misogyny and unwarranted sexualization of female-coworkers dismissed, while the commodification of one’s consenting sexual availability is criminalized?
One could argue that all sex workers fall victim to economic coercion, which poses the question: are sex workers really consenting to the work they engage in? We must remind ourselves that we all suffer from such oppressive systems, which are inherently a part of capitalism’s mode of production. Labor produced by the 99%, has been seen to be generally exploitative of the laborer. Whether or not the labor is sexualized, laborers within our capitalist society face economic subjugation from their capitalist superiors. This is what keeps the capitalist system going — the necessitation and exploitation of surplus labor. Sex work carries a sense of coercion because of the public’s association of human trafficking with consenting sex work. Sex work also has stigma because of its inherent intimacy, and closeness to another individual. This makes room for the argument of sex work being dangerous, that the sex worker is at greater risk for assault and/or emotional trauma. However, we must acknowledge that emotional and physical trauma associated labor is certainly not exclusive to sex work.
It is important to examine elements of coercion in almost all fields of labor. One could make the argument that working in a slaughterhouse puts the laborer at risk of, for example, having a hand cut off by the machinery they use. However, there is not a strong political movement to ban individuals from working at slaughterhouses, regardless of the physical danger they are potentially subject to. The sexual aspect of sex work makes this profession a taboo, cloaking the concern for their safety with a deeper opposition, or discomfort, around something historically and culturally repressed. That being said, sex worker’s rights should nonetheless be protected, the same way that union members seek protection through attaining workers rights. The labor that sex workers perform should not be viewed as different from the labor that other working class individuals perform, within the context of class struggle.
In addition to the issues regarding labor and sex work, the surveillance and legislature put forth to control sex work are reflective of an essentialist perspective on sex; that is, that sex should be perceived through a universal lens, which conceives sex as being noncommercial, heterosexual, monogamous, and within the confines of marriage. In this context, those against sex work argue that sex is something that should not be commercialized. The criminalization of prostitution perpetuates other ideologies that continue to reduce women to demonizing archetypes. This is seen through legal persecution and social ostracization. Another manner in which essentialism is instrumentalized, through police surveillance, can be seen though the policing of queer bodies. This is seen through the targeting of marginalized demographics. Specifically, transgender women of color are often target to police violence and discrimination (Revolving Door, Sex Workers Project, 2003), under the guise of “protecting” women and decreasing vice. An example of this discrimination is seen through invasive questioning by police, asking transwomen to reveal their genitals in order to identify their gender. We must remember that the surveillance of marginalized sexualities and identities are not about “policing sex. It’s about profiling and policing people whose sexuality and gender are considered suspect” (Grant, p. 9).
Ultimately, sex work should be acknowledged as a form of legitimate labor, and laws around sex trafficking should be made more specific in order to differentiate these two very distinct phenomena — human trafficking and sex work — to put a stop to persecuting consenting laborers and participants.
We also need to identify the specific consequences produced by the systematic persecution of consenting sex workers. Contrary to the idea that the commodification of sex is inherently violent towards women, both global and national researches surveys show that the surveillance and policing of sex work have generated more violence than sex work itself. Melissa Gira Grant argues that producing “a prostitute where before there had only been a woman is the purpose of such policing. It is a socially acceptable way to discipline women, fueled by a lust for law and order” ( Playing the Whore, p. 4). The Sex Workers Project (Urban Justice Center, 2003) conducted a survey examining the relationship between police violence and sex workers. The research reported that approximately 70 percent of street based sex workers experienced police initiated interactions from authorities, on almost a day to day basis. A majority of street-based sex workers reported that they were not engaging in criminal activity when they were confronted by the police. 30 percent of respondents experienced threats from the authorities, in addition, 17 percent of respondents experienced sexual harassment from police. This research clearly demonstrates how illegality around sex work legitimizes state violence against women.
Alongside with the law, various forms of anti-prostitution feminism posit the same oppressive – and often moralistic – agenda towards sex workers. Both liberal and carceral feminism have purported similar positions against the existence of sex work. This is important to take into account, as agents aside from the state are perpetuating ideologies that have resulted in the subjugation of women and other feminized, often queer bodies. Carceral feminism, a form of feminism that holds anti-prostitution sentiment, demonstrates reliance on the law and order power of the state to bring about gender justice. Carceral feminism views an increase in policing and prison sentencing as a way to solve issues around gender related violence. In her article, Against Carceral Feminism, Victoria Law elaborates a cogent critique of this branch of feminism, arguing that it does not take into account that the police have acted as agents of violence, and how prisons are domains of violence. She points out that these feminists do not regard the identity of the subject; whether it be their race, class, gender or citizenship status. The failure to acknowledge the importance of marginalized identities puts individuals who do not exist within privileged categories at higher risk of experiencing state violence.
This form of feminism can be seen to fall in the same footsteps of liberal feminism. Both forms of feminisms dichotomously categorize women in manners that deem one group as legitimate, while the other illegitimate. This results in the protection of women who are construed as “legitimate” by society. The rhetoric articulated by anti-prostitution arguments in distinct kinds of feminism protects the “acceptable girl”, at the expense of another woman’s subjugation — a tendency inaugurated by liberal feminism in response to more radical articulations of feminism from the 50s and 60s.
The current legal status of sex work attempts to criminalize and abolish this form of labor, which will further subjugate demographics constituted primarily by non-white, feminized and queer identities. Given that, the demand for rights, and for the protection of sex workers is urgent. The violence carried out by law enforcement is justified by the vague U.S state penal codes around prostitution. The existence and enforcement of these laws continue to persecute consenting sex workers. These laws also propagate the idea of sex work being an illegitimate form of labor. We need to reexamine the roots of such state legislatures, keeping in mind that they communicate and impose sexual essentialism. When sex work is regarded as a legitimate form of labor, its laborers will have more access to protection — and the violence committed against them can and will no longer be justifiable by the state.