We need smarter prostitution laws

On Dec. 20, Canada’s highest court struck down the country’s laws regulating prostitution, saying the laws infringed on sex workers’ right to personal safety. The Canadian legislature has a year to rewrite the laws. The case opened up vigorous debate in Canada and around the world, about much more than just the laws governing sex work. The case, and the debate around it, brings to the forefront a whole tank of our most fraught modern tribulations — gender equality, globalization, pleasure, bodily autonomy and sex itself.

The Canadian prostitution law that the court overturned did not actually outlaw prostitution. Rather, it outlawed all the ways in which a prostitute might make a living. The law criminalized being in and running brothels, communicating for the purposes of prostitution and living off the avails of prostitution. Three sex workers challenged the law, alleging that it made sex work significantly more dangerous by taking it off the radar by preventing sex workers from working in safer indoor venues and even from seeking help at safe houses. The specter of serial killer Robert Pickton, who was convicted of murdering nearly 50 sex workers near Vancouver, B.C., loomed large over the case. If the women Pickton killed had not been forced to work in remote locations with limited contact with family and friends, the complainants argued, they would not have been such easy targets. Canada’s highest court agreed.

The challenge with the Canadian law — with almost any law, really — is that identifying faults is easy. Crafting comprehensive regulations that protect the rights of all sex workers (from trafficking victims to high-end call girls) is significantly more difficult, particularly for an industry as complicated as sex work. Compounding the issue are the divergent goals of those invested in the sex-work debate: those who believe the ultimate goal should be the abolition of prostitution entirely, those who believe the ultimate goal is treating sex work just like any other line of employment and those who want the government to butt out of sexual commerce entirely.

Former sex workers inhabit all sides of the sex-work debate. Those who are abolitionists point convincingly to their own abuse and exploitation as evidence of prostitution’s ills and the need for it to be eradicated. And there is little argument that many women who are coerced into sex work are extremely vulnerable — abuse victims, drug addicts, abandoned young women, low-income girls trying to survive.

Current sex workers — at least those who are active on the Internet, arguably an English-speaking, financially stable and educated sliver representing sex workers who are significantly more privileged than the average global sex worker — seem to populate the pro-decriminalization group more heavily. This is not surprising, considering the perils sex workers face when their trade is outlawed, with rapes and assaults that cannot be reported to police, abuse at the hands of police, control by pimps or organized criminal cartels, arrests and criminal records that make other work impossible, murders no one cares about. (Street sex workers, for instance, are underrepresented in mainstream media stories but account for about 20 percent of sex workers in the U.S. and face much higher levels (PDF) of extreme poverty, homelessness, desperation and substance abuse than the general population — and even the overall sex-work population — does.)

It is clear that outlawing prostitution has not worked. Legalization, it would seem, would be a solution. Regulate sex work like any other job and treat sex workers with the dignity afforded to any other worker, and you undercut the assumption on the part of some johns that they can rape, abuse and rob, and you empower sex workers to go to the police without fear of arrest. In theory, legalization would even cut down on human trafficking and coercive practices. Regulation would make it easier to identify those who are in the trade voluntarily versus those who are not. Taking sex work out of the shadows would cast more light on those people who are being abused.

Unfortunately, legalization has not played out that way. Trafficking and coercive prostitution have actually increased in places where sex work is legal and regulated. This is not, in itself, an argument against legalization, which has also brought about some positive shifts in the few places it exists. But it is an appeal for smarter laws and greater enforcement against abuses. 

Part of the issue is that there is not as bright a line between voluntary sex worker and trafficking victim as many commentators would like to think. Everyone recognizes that there are many people — mostly girls and women — who are trafficked against their will by criminal cartels and forced into sexual servitude. Everyone agrees that such trafficking is an egregious violation of human rights and must be dealt with urgently.

What is less clear is how to deal with it, not to mention how to discuss, define and regulate the work of the many women, men, girls and boys in the vast gray space between the girl who is kidnapped, locked up and sold for sex and the law student working Craigslist to make her tuition payments. Trafficking is not always kidnapping, and coercion not always slavery. But so-called voluntary sex work is also not always free from coercion or constraint. The reality of sex work is far more varied than its typical portrayals in the media would suggest, and the women who sell sex are not simply witless victims on the one hand or heartless mercenaries on the other.

Sex work is as much a global trade as any other kind of domestic or care labor, with women from the global south and Eastern Europe going north and west in search of work. Women from the Balkans and former Soviet Union make up the majority of sex workers entering Western Europe, primarily from (PDF) Moldova, Romania, Ukraine, Bulgaria and Russia. Significant numbers of women also come from Brazil, Thailand, China, Nigeria, Vietnam and Cambodia.

Sex workers often land in places like Hamburg, Berlin and Amsterdam, where prostitution is legal and where the majority of sex workers are immigrants. Some arrive on their own and work voluntarily. Many pay middlemen to get there, aware that they are migrating to perform sexual labor but not knowing the details — that they may be working obscenely long hours, servicing dozens of men daily with little ability to say no and unable to keep most of the money they earn. Still, they may fare better than sex workers who migrate to countries where the trade is outlawed; those workers often find themselves deported, criminally prosecuted or detained in squalor (PDF) for months or years.

Other women live in sex-tourism hubs, where men from the U.S. and Europe vacation expressly so they can have easy and cheap access to foreign women, men, girls and boys. Thailand and Cambodia are prime examples. By day in Phnom Penh, the major tourist attractions are genocide museums that catalogue the myriad ways the Khmer Rouge murdered the intellectual and middle classes and destroyed Cambodian farmland and traditional practices. By night, the streets teem with red-faced middle-aged white men, out looking for their next brothel.

It is irresponsible to talk about sex work without that context: That it is a service profession illuminating our crassest inequities. That it is almost always men who are served. That sex-work migration patterns are traced with inequality, with women traveling en masse from poorer parts of the world to richer ones or richer men buying discount sex as a vacation indulgence. That in some German brothels, women are priced according to their race, with white and Asian women meriting the highest pay and black women the lowest. It is irresponsible to talk about sex work without looking at how the purchasing of sex functions to reify existing racism, colonialism and sexism.

The trouble with sex work is that the purchase of sex itself indicates the playing field is not level. What does it say about our world when across the globe, one of the most valuable things a woman can sell is sexual access to her body? What do boys and girls learn about women when they see female bodies for sale? And what does it tell us that when we look at the people most likely to engage in sex work (especially the riskiest kinds), we see strong patterns of marginalization — transgender people, homeless teens, brown and black women and girls, women and girls with little social mobility living in (or coming from) economically depressed nations? 

At the heart of sex-work debates in feminist circles is an ideal of what sex should be. Throughout human history, sex has been used as a bartering tool for all sorts of things other than pleasure for pleasure’s sake. Conservative sexual morality has long been rejected by feminists as misogynist and oppressive. In its place, feminists have promoted a sexual ethos that largely comes down to mutual consent and the right to feel good.

As for myself, while I am certainly a proponent of laissez-faire sexuality — do what makes you happy, as long as it is consensual and not hurting anyone — I also strongly adhere to an ideal of mutual consent without coercion and the right to sexual pleasure. Sex, in my ideal world, would be purely pleasure-focused and not a means to any other end. 

But sex has also for too long been a locus of abuse, shame, control, coercion and oppression. For too long, women have been imagined as so-called holders of sex and sources of sexual temptation and men as the actors desiring sex. When men buy sex, that dynamic is reinforced. It is a vision of sexuality that centers on male desire rather than on female humanity and a reciprocally gratifying interaction.

Sweden attempted to legislate that view in 1999, when they criminalized the purchasing of sex in a law driven largely by Swedish feminists. It states that prostitution is inherently exploitative and tied to human trafficking. Instead of punishing women for selling sex, Sweden punishes the men who buy it.

Its successes have been mixed. The market for sex work in Sweden has contracted, and even slight gains in hidden sex work (happening indoors through the Internet or private services) are vastly outpaced by plummeting rates of street prostitution. Yet assessing whether the law had any impact on human trafficking is difficult; cross-national comparative studies suggest it has not (PDF). And many Swedish sex workers report that the Swedish law makes it more difficult for them to work safely, support one another and report abuse to the police.

In other words, even explicitly feminist-minded laws butt up against reality.

Ultimately, decisions about how to regulate sex work are not about any bird’s-eye-view philosophical objections that I (or others) might hold. It is about protecting actual sex workers. It is also about recognizing that we live in a vastly complex world. And in this world, there are women and men who feel empowered by sex work, for whom it is fulfilling, lucrative and enjoyable. There are those for whom sex work is a temporary choice. And there are women, men, boys and girls for whom the sex industry is a living hell, who are not at all served by theoretical discussions or laws that privilege ideals over reality.

This is why, despite my philosophical objections to the purchase of sex and my personal feelings of disgust aimed at those who buy sex, I nevertheless think people absolutely must have the right to sell sexual services without fearing abuse, incarceration, marginalization or stigma.  

The Canadian case offers an opportunity for progressive reform. The court’s affirmation of the human and constitutional rights of sex workers is a huge first step. The legislature must now craft a law that regulates the sex industry while keeping workers safe and upholding their rights. That does not just require reforming the law on prostitution. It requires looking at associated policies focused on public health, social services, addiction treatment, poverty, immigration and gender equality.

It is not an easy task. The best thing the Canadian government can do is take the armchair analysis of people like me with a grain of salt and invite a variety of sex workers, past and present, to the table, along with researchers, human-rights advocates and legal experts. Since sex workers are no more a monolith than women generally, the government will surely hear a wide spectrum of suggestions, ranging from full illegalization to decriminalization with no governmental oversight at all. But a law informed by the voices of those most impacted by it will at least be a step in the right direction.