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.