Demanding Sex: Critical Reflections on the Regulation of Prostitution

Marina Della Giusta, Vanessa E. Munro, Vanessa E. Munro

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317153214
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Interrogating supply/demand from an inter- and multi-disciplinary perspective, this collection broadens engagement beyond the routine analysis of the locus of violence in prostitution and the validity of the prostitute's consent. A focus on the supply/demand dynamic brings into play a range of other societal, economic and psychological factors such as the social construction of sexuality, the viability of alternative choices for prostitutes and clients, and the impact of regulatory regimes on the provision of sexual services. The factors which underlie each component of the supply/demand dyad are also studied and an examination is made of their dynamic interrelation. The collection emphasizes the importance of rendering policy makers alert to the evidence emerging from empirical studies conducted in different fields of enquiry, in the hope of moving beyond polarity and politics at the local, national and international level.

Chapter 1

Legal Incursions into Supply/Demand: Criminalising and Responsibilising the Buyers and Sellers of Sex in the UKv

Jane Scoular and Maggie O’Neill

The aim of this chapter is to assess critically contemporary legal reforms that operate according to an abolitionist vision: one which understands prostitution as paradigmatic of a system of male power and seeks its elimination by removing both the supply and demand of sexual services. This schema has influenced a number of legal reforms including international law’s position on trafficking¹ and domestic laws, such as those in Sweden and the UK, which combine increased punitive sanctions for clients with efforts to exit women from prostitution. While recognising the urgent need to address the many harms experienced by those involved in selling sex and understanding the desire to offer a coherent political resistance to what is often considered to be a ‘global sex trade’, we urge critical caution as we highlight both the ideological and practical limitations of abolitionist approaches. We consider the myopic approach to power inherent in domination theories, which we argue often robs feminism of its dynamism and instead co-opts it into systems of governance. We cite the current strategic focus on exiting as a prime example of such a process as we highlight the way in which efforts to free women from harmful aspects of sex work become so easily translated into techniques of advanced liberal governance and control. Interventions which are intended to help women only do so within the confines of New Labour’s narrow responsibilisation agenda, which sustains the binaries between good and bad, deserving and undeserving women, so that only those who responsibly exit, who fit dominant forms of citizenship and resume normal lifestyles and relationships are socially included, leaving those outside increasingly marginalised.

It is not our intention to offer a nihilistic critique. Rather we use this analysis to develop and inform an alternative approach to the politics of prostitution and to social justice – one that recognises the material insights offered by a political economy of sex but seeks to move beyond its identitarian logic.² In focusing upon a politics of inclusion we hope to offer a more critical and holistic understanding of a social justice that coalesces around discourses of rights, redistribution and recognition (Fraser 1997; Scoular and O’Neill 2007; O’Neill 2007a).

We begin by tracing the growing influence of abolitionist doctrine in legislative efforts to challenge the supply/demand nexus in prostitution. We go on to show that the practical limitations of such models, which typically rely on the criminalisation of clients and measures to help women as victims, stem from a problematic ideological grounding. The form of ‘social inclusion’ they offer is premised on a subject’s victim identity. This not only continues the exclusion of those who do not fit the normative paradigm, it also perpetrates narrow and unchallenging visions of citizenship, serving to undermine a broader ethics of inclusion that we have been involved in supporting for some years (O’Neill 2001, 2008; Scoular 2004a, 2004b; Scoular and O’Neill 2007). We suggest, instead, an ethics of inclusion that is necessarily rooted in a feminist approach and challenges sexual and social inequalities in order to promote a more complex understanding of women and young people’s lived experience. We also advocate for the inclusion of sex workers as citizens in issues of governance. Where recent policy initiatives seek to remove sex workers, or to offer them only limited accommodation, our aim is to bring them back in to the theoretical discursive frame. We also seek to open up the possibilities for dialogue and discussion that acknowledge the unsettled, unfinished elements of progressive governance (as well as the state’s attempts to centralise and control) for it is in the spaces created for participation and inclusion that we may develop resistance and challenges that can lead to social change and social justice.

Abolitionism Today

Sweden has given notice to the world that it regards prostitution as a serious form of oppression against women, and that efforts must be made to combat it (Swedish Government, Prostitution and Trafficking in Women Fact Sheet, April 2003).

One of the key objectives that came out of the Coordinated Prostitution Strategy was the importance of tackling the demand and to challenge the existence of street-based sex markets, along with the commonly held view that they are inevitable and here to stay (Home Office 2007b).

These quotes signify the increasing influence of abolitionism in a number of legal systems’ efforts to tackle prostitution.³ Heavily influenced by radical feminism, this approach is characterised by an understanding of commercial sexual relations as the epitome of male power. Prostitution is consistently characterised as a predetermined system constituted by an inherently abusive demand by men for the sexual services of a group of perpetually victimised women. Challenges to this system take the form of appeals for state disruption of the supply/demand nexus of power, specifically via criminal sanctions designed to cut off demand by clients, as well as for increased social interventions designed to reduce women’s victimisation by assisting them to exit from sex work and re-enter ‘normal’ society.

We begin by considering these central tenets in abolitionist doctrine and highlight what we consider to be the fundamental problems with its ideology and its translation into practice before going on to offer a way forward based upon a politics of inclusion.

Prostitution as a System of Gender Oppression

Prostitution remains morally undesirable … because it is one of those most graphic examples of men’s domination over women (Pateman 1983, 561).

While feminists in general have highlighted the harms experienced by women involved in prostitution, a number of writers have, during the last 40 years, sought to locate and theorise these harms within a radical analysis of the state and sexuality (Millet 1975; Barry 1979, 1995; Pateman 1983; MacKinnon 1982, 1989; Dworkin 1987, 1989). In this body of work, prostitution is regarded as the epitome of the female condition under patriarchy.⁴ Violence is described not only in the practice of prostitution but as being fundamental to the very idea of ‘buying sex’, which is so inextricably linked to a system of heterosexuality and male power that it represents ‘the absolute embodiment of patriarchal male privilege’ (Kesler 2002).

It is clear that within this schema, sexuality is considered to be the primary dynamic in the ordering of society. Sex is to radical feminism ‘what work is to Marxism’ (MacKinnon 1982, 515) and prostitution, by analogy, is frequently cited as a ‘class condition’:

My study of sex as power … inevitably, continually, unrelentingly returns me to prostitution … one cannot mobilize against a class condition of oppression unless one knows its fullest dimensions. Thus my work has been to study and expose sexual power in its most severe, global, institutionalised, and crystallized forms … Prostitution – the cornerstone of all sexual exploitation (Barry 1995, 9).

Thus prostitution is not simply an example of women’s oppression but is regarded as ‘a foundational idea that pre-determines it’ (Scoular 2004a). ‘Choice’, therefore, is a misnomer, as radical feminists dispute that autonomy can be exercised in a system that is fundamentally oppressive (Jeffries 1997; Raymond 2003). Any political or legal recognition of ‘sex work’ (via decriminalisation or legalisation) is thought to both sanction a culture in which men purchase women for sexual gratification and to normalise violence and sexual abuse. Radical feminists seek to challenge the apparent reification of prostitution and to highlight the prevalence of a political economy of sex in which ‘men create the demand and women are the supply’ (Hughes 2000, 635). Abolitionism is their goal and the role of law is to make incursions into this supply/demand dynamic by criminalising the purchasers of sex and by dealing with women as victims of what is regarded as a contemporary form of sexual slavery.

Thus, contemporary campaigns by radical feminists frame all prostitution as a violation of women’s human rights. Through the Campaign Against Trafficking in Women (CATW) a number of prominent radical feminists focus attention on trafficking, citing it as a graphic example of the wider sexual slavery inherent in the prostitution of women and children. By collapsing trafficking with prostitution, this group intends to explode what it regards as ‘the false distinction between forced and voluntary prostitution’ (Jeffries 1997, 10). By rendering choice irrelevant, they seek to stymie demand by rendering the purchasing of all sex as a criminal act. This position has gained some recognition in some domestic systems.

In Sweden, for example, radical feminism played a key role in influencing a particular hegemonic form of state feminism (Scoular 2004b) which was, in part, responsible for the 1998 law which prohibits the purchasing of sexual services.⁵ Commentators describe the impact of other factors such as a national anxiety over entry into the European Union and a perceived need to assert a coherent national identity against a growing migration and perceived permissiveness in Europe (Gould 2001; Kulick 2003). However, the role of radical feminist ideology and, in particular, the way in which its construction of ‘state’ and ‘subject’ coalesced with conservative social policy norms cannot be underestimated (Scoular 2004a). In describing the reasoning behind the Swedish law, Sven-Axel Månsson notes:

The law presuppos[es] that a real change in gender relations calls for a radical reconsideration of men’s responsibility in prostitution. The basis of such a reconsideration is that prostitution must be defined as a male issue; that prostitution is about men’s sexuality, not women’s (Månsson 2002).

Thus, apparent equality is achieved by moving from criminalising women in prostitution to penalising men’s role as purchasers. This change in focus is also evident in the intensification of surveillance and arrest of clients in the United States and Canada (McElroy 1998) and the emergence of ‘re-education’ programmes in these jurisdictions.⁶

Recent reforms in the UK similarly rely on abolitionist configurations of supply and demand, seeking to challenge this dynamic via the increased criminalisation of clients while promoting women’s rehabilitation (via social-welfare exit programmes) from prostitution (Home Office 2004, 2006; Prostitution (Public Places) (Scotland) Act 2007). For example, a recent Home Office briefing outlines the rationale behind the proposed ‘new’ approach:

The aim is to reduce the demand for street prostitution and bring to justice those who contribute to the vicious cycle of prostitution. Targeting those who create that demand can be highly effective at disrupting the market, provided that the full range of enforcement measures and sentencing options are used … (Home Office 2007a).

Thus (certain) purchasers, notably kerb-crawlers, have been the subject of increased policing and stigmatising. Kerb-crawling has recently been made a criminal offence in Scotland (Prostitution (Public Places) (Scotland) Act 2007), despite adequate common law powers to deal with any nuisance. In England and Wales, where it is already a summary offence (s71 Criminal Justice and Police Act 2001), ‘naming and shaming’ now features at the centre of the government’s approach (Home Office 2007b) and pressure to criminalise further the purchasing of sexual services mounts as the Criminal Justice and Immigration Bill 2007 passes through Parliament.⁷

The increased criminalisation of clients runs alongside the efforts to ‘empower’ those involved in selling sex by recognising their victimisation and facilitating their exit:

Most women involved in street-based prostitution are not there through choice. They are amongst the most vulnerable people in society. Nearly all are addicted to heroin or crack or both. Many come from abused childhoods and many are homeless. And many become involved before they reach 18. Kerb crawlers on the other hand do have a choice in the matter and we want to send the message that kerb crawling will not be tolerated. Men who choose to pay for sex on-street are indirectly supporting drug-dealers and abusers whilst perpetuating a market fraught with violence and abuse (Home Office 2007a).

Thus, in order to disrupt the ‘market’, recent reforms seek to create a climate of zero tolerance primarily in relation to street sex workers,⁸ to be achieved via increased enforcement (especially against kerb-crawling), the use of Anti-Social Behaviour Orders, the promotion of prevention and support for women to exit prostitution. The latter is to be achieved via a four-staged approach which begins with voluntary referral to services and increases along a continuum to prosecution (Home Office 2006, 39). Central to this is the introduction of a rehabilitative order, proposed in Part 6, clause 72 of the Criminal Justice and Immigration Bill 2007, which seeks to impose compulsory drug and alcohol rehabilitation courses on pain of 72 hours’ detention if those referred fail to attend three sessions with a ‘supervisor’. These orders will apply to women who are found to be persistently soliciting, with persistence now defined as soliciting on two or more occasions over a period of three months. This is a significant extension from the previous requirement of two or more occasions in one day. Thus, in order to ‘protect’, the net of control has been widened to include a larger group of women who are now subject to compulsory rehabilitation.

Before embarking on a critique of these measures (particularly on their limited understanding of the supply/demand dynamic and their problematic use of law, which operates to reduce agency while increasing control), we want first to acknowledge the importance of radical feminist work, which has provided a vital articulation of the harms that women have experienced, and continue to experience, ‘under’ eroticised power relations. We have argued before that this can be overlooked in some critiques which dismiss such perspectives out of hand:

An uncompromised account of domination does offer opportunities for action in the face of the seeming nihilism of more abstract post-modern theories and the de-politicisation created by the normalisation of heterosexual power differentials and the apparent market inevitability of their commodification (Scoular 2004a).

We recognise the efforts made to raise awareness of the harms that overwhelmingly impact upon women and to tie this to an understanding of the gendered nature of the state. By linking prostitution to other forms of sexual subordination, radical feminists attempt to provide a platform for solidarity and offer the kind of political coherence necessary for claims to law. Yet it is this coherence that is problematic. As we argue below, the political consensus offered by the construction of the prostitute subject as a victim of gendered power is achieved by overlooking the complexities and contradictions inherent in prostitution, which point to wider structures, including law, which intersect to create its marginal status. It is also achieved at the expense of a recognition of women’s agency. Preferring to advocate a rhetoric of victimhood, these discourses may actually consolidate and legitimise law’s power over women’s bodies, foreclosing any discussion of forms of rights or recognition which could support counter-hegemonic challenges.

Our critique is motivated by a concern to preserve feminism’s counter-hegemonic challenge whilst also arguing for an acknowledgement of women’s agency in order to loosen the uni-directional account of women as vi...

Table of contents

• Cover Page
• Title Page
• Copyright
• Contents
• List of Contributors
• Acknowledgements
• Editors’ Introduction: The Regulation of Prostitution: Contemporary Contexts and Comparative Perspectives
• 1 Legal Incursions into Supply/Demand: Criminalising and Responsibilising the Buyers and Sellers of Sex in the UK
• 2 Be Helped or Else! Economic Exploitation, Male Violence and Prostitution Policy in the UK
• 3 Wolfenden 50: Revisiting State Policy and the Politics of Sex Work in the UK
• 4 The Construction of Prostitutes and Clients in French Policy Debates
• 5 Exploring Exploitation: Trafficking in Sex, Work and Sex Work
• 6 Putting Trafficking on the Map: The Geography of Feminist Complicity
• 7 Simulating the Impact of Regulation Changes on the Market for Prostitution Services
• 8 Client Participation and the Regulatory Environment
• 9 Criminalising the Use of Trafficked Prostitutes: Some Philosophical Issues
• 10 Why Hate Men who Pay for Sex? Exploring the Shift to ‘Tackling Demand’ in the UK
• 11 The Consumer, the Consumed and the Commodity: Women and Sex Buyers Talk about Objectification in Prostitution
• Index