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  • Writer's pictureAntonia Boorman
    • Nov 25, 2020
    • 16 min read

Should Sex Work be Criminalised?

Updated: Dec 20, 2020

[Sex Work Series] Paper 3: Should Sex Work be Criminalised?

A feminist discussion exploring the ethics and justice of the criminalisation of the commercial sex industry.

 

Should sex work be legal? Do the policies surrounding sex work currently promote justice in society? Or are they oppressive in nature? Is sex work a legitimate form of work? Can sex work be consensual?¹


These are some of the questions I aim to explore within this discussion. The topic of the criminalisation of sex work segregates feminists who argue for or against presenting arguments of consent, objectification of women, respect of autonomy and sexual liberation. Feminist philosophers who argue for the criminalisation of sex work including Debra Satz, Elizabeth Anderson, Scott Anderson, and Catherine MacKinnon, do so based on seeing sex work synonymous with a form of involuntary servitude and violence against women that reinforces patriarchal forces. Their views stem from three main arguments; that sex work reinforces objectification and patriarchal dominance (Anderson, 1993), that sex work can never be consensual (MacKinnon, 1987), and that sex work has negative long term effects on the mental and physical health of those involved (Satz, 2010). Feminist philosophers who argue against the criminalisation of sex work, do so based on the promotion of the autonomy of choice (Nussbaum, 1999) and sexual liberation from patriarchal forces. Within this essay, I will examine the arguments both for and against the criminalisation of sex work and conclude with my opinion of which promotes a more just society.


According to the Open Society Foundation (2019), most people who go into sex work choose to go into it due to economic need or other necessities (Open Society Foundation, 2019). Regardless of stance on criminalisation, most feminists agree that sex work is usually pursued by those in desperate economic need with little alternative options. Due to this lack of alternative options, I argue that it is unjust to criminalise sex work, as criminalisation is a form of intervention that further reduces the options available to those most vulnerable, violates the individual’s autonomy of choice and leads to worse situations ie. poverty, unemployment, starvation and incarceration.

 

A common view for the criminalisation of sex work is that of Elizabeth Anderson’s (1993), who claims that sex work objectifies women by reducing them to things that can be bought (Anderson, 1993). Since the objectification of women is unjust, Anderson argues that sex work is unjust (Anderson, 1993). Anderson sees sex work as a ‘gender crime’ as by allowing their bodies to be purchased, this sends the message to men that women are sex objects which exist for men's enjoyment, which can be "bought" and which can be "used" solely for men's sexual gratification (Anderson, 1993). Anderson argues that this can reinforce patriarchal stereotypes of control and dominance over women which can be damaging to all women regardless of whether they are involved in the sex industry or not (Anderson, 1993). She argues that the “normalisation of such one-sided sexual encounters” could lead to increased rape and violence against women (Anderson, 2002, p.749). Anderson claims that “the commodification of sexual services means that one person must be defined as a social subordinate who caters to the desires of another” (Anderson, 1993, p. 154-55) which is a form of objectification of women and therefore is unjust. One cannot legally hand themselves over to slavery or oppression, as stated by the UNODC (2019), meaning that if sex work is a form of oppression then, with keeping in line with UN standards, it cannot be legalised. In conclusion, Anderson argues that sex work should not be legalised, as legalising it allows the exploitation and objectification of women while accepting an already existing patriarchal society.



I explored whether the sex industry leads to the over-sexualization of women contributing to increased violence against women and rapes through the examination of the gender and power dynamics in the sex industry in response to Anderson’s claim that sex work objectifies women by reducing them to things that can be bought which leads to further violence against women (Anderson, 1993). The sex industry somewhat thrives on the idea of patriarchal dominance, especially if the sex worker is performing based on economic need, as there are intense power dynamics there. Clients, usually men, don’t necessarily need to purchase sex but sex workers may need to sell sex to survive ie. “survival sex” (Shrage, 1989, p.409). Survival sex is very prominent in the sex industry. The ability to walk away from any negotiation, purchase, or agreement places the buyer of sex in a position of power. If sex work becomes a necessity to survive it creates problematic power dynamics. Sex work is also usually conducted by the most marginalised in society; migrants, the poor, LGBTQ and trans women, people of colour, reinforcing stereotypes and patriarchal tendencies (Mac & Smith, 2018). Mac and Smith, current sex workers and advocates, claim that “these are the groups most heavily profiled and punished through prohibitionist law. I don't think this is an accident. These laws have political support precisely because they target people that voters don't want to see or know about” (Mac, 2016, 09:48). Therefore, the most marginalised, vulnerable and desperate in society are those who are dependent on sex work to survive, are those who will be subject to these power dynamics which creates space for abuse, which is obviously problematic. Criminalising sex work won’t solve this issue, as explained above, and just further harms the most vulnerable in society through incarceration and restriction of their already limited autonomy, which is unjust.


To investigate Anderson’s claim further, I explore the objectification of women. The fashion industry, the entertainment industry and the media’s portrayal of women’s bodies already reinforce the male gaze and patriarchal objectification of women’s bodies. The male gaze and women’s bodies are already used to sell movies, music, clothing, perfumes, cars, alcohol, and many other products (Rossini et al., 2018). Arguably, in sex work, when women can choose their prices, conditions, and terms, they are more in control choosing how to sell their bodies rather than the passive use of their bodies to sell other products. Objectification of women already exists regardless of the legal status of sex work. The existence of sex work allows women to take back control of this male gaze, setting their terms and using it to their benefit rather than a downfall.



Scott Anderson, a philosopher in support of the criminalisation of sex work, argues that sex work is should be criminalised as it is fundamentally different from other professions as it requires the use of sexual autonomy ie. the right for a person to choose when, where and with who to sexually engage with (Anderson, 2002). Anderson argues that sex is an “integral part of who we are as men and women” (Anderson, 2002, p.759), and therefore, by using sex professionally this decreases their control over their sexual autonomy (Anderson, 2002). Anderson sees legalising sex work as allowing third parties, such as the government, firms, pimps, etc, to take control over a person’s sexual autonomy. By partaking in commercial transactions of sex, Anderson sees this as equivalent to waiving their rights to sexual autonomy (Anderson, 2002), which he argues isn’t worth the economic stability that sex work may provide (Anderson, 2002). He argues for criminalisation on this basis (Anderson, 2002).


Claiming that sexual autonomy is more important than economic stability is flawed, as for many in less privileged circumstances, who may have children to feed or maybe homeless, sexual autonomy is an easy sacrifice to make for economic stability. By Anderson advocating for criminalisation on the basis of protecting sexual autonomy (Anderson, 2002), this further restricts the autonomy of sex workers by taking away their ability to choose to pursue sex work or not. Furthermore, Anderson’s view disregards the autonomous choice of woman consensually choosing to enter the sex industry out of a desire to express her own sexuality and be in control of how she is viewed through the outfits she wears or the role she chooses to pursue within the industry. For many women, the sex industry can be empowering as it allows them to be strong and autonomous. Take pole dance, for example, it is a beautiful art within the sex industry that takes a huge amount of physical strength to perform. It’s a form of sexual expression through a sport that is physically strengthening and mentally resilience-building through the repetitive nature that is necessary to perfect moves. Art forms within the sex industry such as burlesque and pole dance can be used to help sexual assault survivors as they are able to be in control of their sexuality, and therefore demonising something that may actually be therapeutic to people is unjust.


Martha Nussbaum (1999) argues that “two centuries ago, the use of one’s artistic talents for pay, such as singing or acting, was regarded as a form of prostitution” (Nussbaum, 1999, p. 277), which leads to question if sex work is just restricted due to the stigma that surrounds it, a stigma that is based upon patriarchal views that restrict the sexual liberation of women (Nussbaum, 1999). Nussbaum argues that it should be the stigma that is combatted rather than the legalisation of the sex industry. Sex work allows women to express their sexuality and grants freedom of independence and sexual liberation where women can openly choose who their partners are, how many partners they have, when and where they have sex, all while gaining an income, which is arguably much more control and autonomy than a married housewife has, which is socially acceptable while sex work is not. Sex work can give women both sexual and economic control, which defies the patriarchal structure that currently exists in society. Criminalising sex work is another way of restricting a women’s sexual autonomy and freedom which I argue reinforces patriarchal dominance and control. Therefore, a more just society would be one where women have the freedom and autonomy to choose to pursue sex work if they so desire as restricting them would act as a paternalistic act of oppression.


In objection to Anderson’s claim that sex work is fundamentally different from other professions, I provide Nussbaum’s argument that sex work is a legitimate form of work as a service sector role (Nussbaum, 1999). She argues this on the premise that the sale of sex for the sole purpose of economic gain means that it cannot be differentiated from other sales of services and goods that are solely sold for economic gain (Nussbaum, 1999). Nussbaum states that providing sexual services can be comparable to providing other services that require the use of the worker’s body ie. a labourer rents their hands to build things, a model rents their body to sell clothing, an actor rents their body for visual entertainment, and an argument can be made that sex workers rent their bodies to provide intimacy and pleasure (Nussbaum, 1999). Riley Reyes, a member of the Adult Performer Advocacy Committee² and current sex worker, compares her services to the services of a masseuse or a therapist as she provides stress relief, intimacy, comfort, and pleasure (Reyes, 2019).


If sex work is a legitimate form of work, criminalising it would be unjust as it takes away the worker’s autonomy of choice to decide to pursue this industry and acts as “a denial of human rights to self-determination” (Nussbaum, 1999, p. 218). The autonomy of choice is a human right and therefore should be protected. This argument can be expanded upon using the work of Matt Zwolinski (2007). Zwolinski illustrates when it is, and by extension isn’t, morally justified to intervene on a person’s autonomy through his examination into exploitative working conditions in sweatshops and whether or not third parties should interfere ie. through boycotting companies that use sweatshops or pressuring national governments to shut them down (Zwolinski, 2007). Zwolinski argues that when a worker chooses to enter the industry, by exercising autonomy and exerting their preferences, their choice is morally transformative, meaning that these workers establish a moral claim against interference which third parties cannot interfere with without undermining the autonomy of the workers (Zwolinski, 2007), which as established above as human right, must be protected. Furthermore, this interference could even lead to worse situations, such as poverty and unemployment. Therefore, autonomy should be respected and interference not condoned (Zwolinski, 2007).


Economic circumstances that drive a person to work in the sex industry are similar to those who pursue work in sweatshops, making it appropriate to apply Zwolinski’s argument about autonomy here (Zwolinski, 2007). There is a limited set of alternative options available to these workers which influences their choices to pursue the work, yet they still chose to pursue this work, which Zwolinski argues should be respected (Zwolinski, 2007). To reiterate, autonomy is defined as the capacity to make an informed, uncoerced decision exemplified through expressed consent and willingness (Zwolinski, 2007). However, if the choice to pursue sex work was coerced due to economic circumstances is this choice consensual, and by extension, if not, does it still count as autonomous?


This is the argument Catherine MacKinnon (1987), a long-time feminist who advocates against sex work, makes. MacKinnon considers sex work as exploitative and demeaning and for the reason that “no one actually chooses it” (MacKinnon, 1987). She argues that prostitution, “is sex that the woman wouldn’t be having if she weren’t being paid for it. It seems to me, therefore, the money operates as a form of force in prostitution; that is to get her to do something that she wouldn't otherwise do" (MacKinnon, 2001, 12:40). MacKinnon argues that sex work is rape as she sees a sex worker’s consent to be invalid as the consent is enforced from external circumstances such as poverty, psychological manipulation from pimps, or drug addiction. Since this choice is based on economic necessity and is conducted as a means of survival (‘survival sex’), MacKinnon argues that it cannot be deemed as consensual, regardless of whether the sex workers have explicitly, contractually or verbally consented to be sex workers (MacKinnon, 1987). She argues that prostitution cannot be a free choice, with evidence for this claim being that the women with the fewest alternative choices are most commonly pursuing it (MacKinnon, 2001). This is further argued by Debra Satz (1995) who illuminates that sex work is pursued by those with the fewest alternatives such as the young, homeless, drug addicts, poor, oppressed minorities, migrants, undocumented (Satz, 1995). MacKinnon (1987) argues that economic need invalidates consent as it is influenced by external circumstance. If sex work is not consensual it is deemed as rape, which is unjust, and should be banned (MacKinnon, 1987).


In response to MacKinnon, it may be true that sex workers’ consent to perform sex work may be only due to avoiding less preferential external circumstances, however, it is still a choice that they have consented to make and restricting this choice this takes away their right to personal autonomy, which is unjust. In terms of psychological manipulation or enforced drug addiction from pimps, this manipulation of a person for personal gain counts as human exploitation which is deemed as trafficking (UNODC, 2019). Trafficking cannot be consensual (UNODC, 2019) and thus should also be separated from consensual sex work where a sex worker is not being exploited.



It is problematic to class consensual, even if transactional, sex as rape, as this devalues when sex workers are actually raped and file police reports. Sex workers are often ignored by the authorities when reporting violence and rape due to the stigma surrounding sex work and a high level of police abuse towards sex workers (Mac & Smith, 2018). Within a system that adopts the legislative approach of criminalisation both sex workers who have been abused and victims of sex trafficking in exploitative circumstances are less likely to come forward as they risk incarceration. Rape and sexual violence is a patriarchal and gender inequality problem that is a systemic issue, rather than a problem that is solely associated with the sex work industry. Rape exists regardless of profession, and the criminalisation of sex work will not stop rape, yet sadly neither will legalisation or decriminalisation. Defining all sex work as rape reduces the seriousness and appropriate level of legal attention paid to sex workers when they are actually raped.


Zwolinski would respond to MacKinnon by clarifying his factors that make a choice a morally transformative one. A morally transformative choice is one that is either autonomy-exercising or preference-evincing (Zwolinski, 2007). An autonomy-exercising choice is one that reflects the agent’s wants, needs, desires, values, or goals (Zwolinski, 2007). A preference-evincing choice is one that “signals information about an agent’s preferences” (Zwolinski, 2007, p.693). The key distinction that separates MacKinnon and Zwolinski is that Zwolinski believes that a choice can be “morally transformative even if it is not a fully autonomous one” (Zwolinski, 2007, p. 691). If this choice is made due to necessity, ie. survival sex, it is still a choice that is chosen over less preferable options such as unemployment, starvation, crime, etc. Here, sex work may be the best option from a limited set, yet it is still a choice made somewhat autonomously and willingly, and therefore should not be deemed as rape. For example, a cross-sectional survey of 5,498 female sex workers across 22 districts in India examining the motivations to pursue sex work listed association with socio-demographic characteristics as the main factor for entry into sex work (Saggurti et al., 2011). Other factors included personal choice and family tradition (Saggurti et al., 2011). From multivariate analysis, the researchers found that the income generated from sex work could be up to six times the income from the available alternative industries, such as working in the local garment factory (Saggurti et al., 2011).


As exemplified by the female sex workers from the Indian study (Saggurti et al., 2011), sex work provides an income which can act as economic empowerment for women who may not have access to other employment, meaning that they are not dependent on men to provide for them (Nussbaum, 1999) and that this income can give them means for financial advancement out of poverty and into other industries if they so, please. Sex work can be more flexible than other jobs that have strict working hours and barriers to entry, and sex work may provide more money than minimum wage jobs, therefore it should be deemed a legitimate choice for people to make and this choice should not be restricted. Furthermore, as explained previously, some women choose to enter the industry to explore and express their sexuality.



A Danish survey “Prostitution in Denmark” (Kofod et al., 2011)³, interviewed 104 sex workers on their decision to enter sex work and found that 50% of sex workers entered sex work due to sexual curiosity (Karkov, 2012). This is not representative of all sex workers, for example, in the previously mentioned Indian study only 10% of the 5, 498 sex workers interviewed entered for sexual exploration reasons. Yet, this still exemplifies that choosing to pursue sex work may not only be solely from a stance of economic desperation and that the choice is both autonomy-exercising and preference-evincing. Through Zwolinski’s framework, the choice to pursue sex work can be morally transformative and thus must be respected without intervention (Zwolinski, 2007).


Banning sex work to help vulnerable women is counterintuitive as the criminalisation of sex work does not solve the poverty and social stigma problems that push people into sex work and instead just incarcerates those already struggling, giving them a criminal record and hefty fines which make them even more economically vulnerable, reducing an already limited set of choices even further⁴, further taking away the freedom and autonomy of choice of sex worker and reinforcing the stereotype of sex workers as criminals. Restricting sex work does not help the situation and may make vulnerable women more desperate and less able to choose. Until a society exists where people aren’t forced into careers they may not fully want to do out of economic need, less desirable jobs, such as sex work, should still exist for those people to still have the personal autonomy to choose, even if from a limited set of options. Further reducing those options without fixing the overall societal and economic problems that create them is unjust.


To Conclude,


Within this essay, I explored my thesis that due to a lack of alternative options it is unjust to criminalise sex work as this further reduces the options available to those most vulnerable and restricting the individual’s autonomy of choice through discussing the different feminist theories on objectification, oppression and patriarchal dominance, sex work as a legitimate form of work, and economically-infused consent vs full consent. I examined the views that influence advocacy for and against the criminalisation of the sex industry. After this exploration, I stand by my view that criminalisation of the sex industry will not help those suffering from the situations of poverty and economic need that influence the pursuit of sex work, and furthermore, that criminalising sex work will just further harm those most vulnerable as it restricts their autonomy of choice. In an ideal world, sex workers would have more options to choose from, but in reality that is not the case and therefore interference through the criminalisation of sex work just further reduces the options available to the poorest people, not only violating their autonomy of choice but forcing people into less preferable circumstances. Therefore, in order to protect and respect the choices of sex workers, sex work should not be criminalised.

 

Footnotes


¹ This paper focuses on consensual sex work rather than sex trafficking, which is forced and should not be condoned on any conditions.

² The Adult Performer Advocacy Committee (APAC) is a labour group by and for adult film performers and sex workers. The APAC works in conjunction with other sex work organisations to advocate for safer working conditions (APAC, 2020).

³ Study Method: “The qualitative study was conducted from July 2010 to January 2011, where 119 interviews have been collected17 with former and current prostitutes as well as with professionals from government agencies and NGOs who is associated with the prostitution environment. The distribution of interviews is as follows: 50 interviews with current and former Danish female prostitutes, 44 interviews with current and former Danish male prostitutes, 10 interviews with current foreign prostitutes, 15 interviews with professionals from public authorities and NGOs, who regularly interact with prostitutes through their daily work. These are, for example, municipal caseworkers, police officers and employees associated with social services for prostitutes. In comes interviews with employees of consulting firms. In addition to interviews, the qualitative data material also consists of the following components: 20 journals kept at Reden International, which is a social offering addressed to foreign prostitutes. The records contain descriptions of women's backgrounds, how they came to Denmark and how their daily lives are” (Kofod et al., 2011, p. 42).

⁴ Explained fully in Paper 4: Sex Work Legislation in Western Europe.


References

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