Gender equality will remain unattainable so long as men buy, sell and exploit women and children by prostituting them ⌠Prostituted persons are the weaker party, exploited by both the procurers and the buyers ⌠By adopting the legislation Sweden has given notice to the world that it regards prostitution as a serious form of oppression of women and children and that efforts must be made to combat it. (Swedish Government 2003)
The Supreme Court of Canada has struck down the country's major prostitution laws, saying that bans on street soliciting, brothels and people living off the avails of prostitution create severe dangers for vulnerable women and therefore violate Canadiansâ basic values. (Fine 2013)
A New Zealand prostitute has won substantial damages for sexual harassment by a brothel owner ⌠âSex workers are as much entitled to protection from sexual harassment as those working in other occupationsâ, the ruling said. New Zealand Prostitutes Collective national coordinator Catherine Healy told Fairfax News the decision showed New Zealand had become a world leader in sex workersâ human rights after legalising prostitution in 2003. âIt's one up for decriminalisation, it's a significant ruling because it could never have happened when sex work was illegal.â (ABC News 2014)
Overview
As these accounts, taken from recent press accounts and government reports, demonstrate, prostitution is, at the beginning of the twentieth-first century, characterised and governed in strikingly different ways. Fiercely polarised battles have emerged between those who, on the one hand, view the practice as a form of sexual violence, and as a form of exploitation and, on the other, those who regard the activity as work like any other, as a form of sexual labour that individuals have a basic human right to engage in (safely).
What is striking about this current debate is not only the seemingly mutual incompatibility of each perspective (according to the current orthodoxy, prostitution can only ever be either the epitome of modern day slavery or the expression of a fundamental human right, of sexual freedom and economic liberty â but never both) but also the central role that law is assigned in adjudicating between these competing constructions. Although each side disagrees vehemently on the very meaning, and, indeed, morality of commercial sexual exchange, they are united in their belief that law is the panacea to this Solomonic dilemma. Whether by criminalising the purchasing of sex or by providing increased rights and labour recognition for those in the sex industry â law, it would seem, is the answer. Yet is it?
In this work, I take a step back from the issue as it is currently presented and question the central role of law in framing and responding to the subject of prostitution. This book asks the critical, yet often overlooked, question of how law matters in contemporary sex work. Is law simply a neutral arbiter that comes down from above to ordain the right normative answer to this moral dilemma, or, is this presentation of âthe lawâ, as a singular sovereign power, part of the very problem that many seem to want to âresolveâ?
The latter is very much my contention as I seek to challenge formalist accounts and develop a constitutive approach to the subject of prostitution and to the subject of law. This reveals a more complex relationship between law, society and the subject that requires a reorientation of the search for justice as it shows that the insistence on âaâ legal solution to this issue can do more harm than good.
This work is motivated by fact that there is surprisingly little written on law in this area. I should clarify, of course, there is indeed a great deal written about law â calling for increased legal sanction, or conversely reduced legal intervention. There have also been myriad reports and studies describing the content of various laws, empirical studies of policing and a great deal of political rhetoric, yet these rarely engage with the discipline of law itself. Despite massive regulatory complexity, analysis has become ever more narrowed in a binary of legalisation/criminalisation with decriminalisation appearing to fall somewhere in between. Laws are described and debated at great length, but rarely are they analysed in more than these narrow analytical terms.
My methodology resists the legal centrism of formalist accounts, which, in assuming that the âlawâ regulates prostitution, in a particular way according to its sovereign expression, overstates law's coherence (as if âlawâ is a singular power), wrongly attributes âintentionâ (as if âlawâ has a controlling mind and is unified in its actions) and over-determines its influence (as if âlawâ acts alone and not in the context of other discourses and actors).
By contrast, a constitutive approach sees law as an inseparable dimension of social relations. It looks beyond what law âsaysâ and instead examines what law âdoesâ, as it operates alongside other discourses and practices to shape the subjects, spaces and forms of power in sex work.
Examining these social processes gives a greater insight into what law âdoesâ and the significance of legal processes, actors and norms in the context of a wider system of meaning as prostitution emerges as a problem of governance at particular times and spaces (Rose and Valverde 1998).
This analytical method helps to more clearly elucidate how law matters in contemporary societies, without either over-privileging it or rendering it obsolete (AgustĂn 2009) 1 or ephemeral to other structures such as the economy (Bernstein 2010) or gender in radical feminist accounts (Jeffreys 1997a).
Introduction
This book considers the subject of prostitution. In the last 40 years, both the supply and demand for commercially available sexual services appear to have risen exponentially. The contemporary period has witnessed far reaching sociocultural changes, brought about by increased globalisation, technological advancement changing patterns of migration, the breakdown of previous political structures (such as nation states, borders and the âfamilyâ) and a loosening of traditional sexual mores â which have, it is claimed, not only served to increase the desire for commercial sex, but also optimised the conditions for its realisation (Bernstein 2007a: 188). The result is a highly visible and highly varied market in sexual services that is âever more specialised, diversifying along technological, spatial and social linesâ (Bernstein 2007a: 115). Writers describe, and some denounce, an increasing âraunch cultureâ (Levy 2005) and a seemingly âunbridled ethic of demandâ, as âpornography, strip clubs, lap-dancing, escorts, telephone sex and âsex toursâ in developing countriesâ appear to be in inexhaustible and immediate supply, at the click of a button (Bernstein 2001: 389).
I use parentheses when presenting this account. While changes in late modern society have undoubtedly altered the meanings and increased the visibility of sex, which now includes a myriad of commodified and mediated forms, I dispute the frequently assumed correlation between these changes and a rise in real terms in the amount of sex sold. There are simply no reliable data to measure historical change in quantitative terms.
Such concerns are, of course, those of a social scientist, rather than those of a politician or activist. Many ideologically driven governments and campaigners habitually talk in exaggerated terms, citing vastly inflated figures, invoking metaphors of floods and epidemics (in both demand and supply), in order to rationalise and justify increased regulation. To give a typical example:
Germany has been flooded with foreign sex workers, mostly from Eastern Europe. Their sheer number, and willingness to accept lower rates, has driven prices so low one American punter, who takes three sex trips to Germany each year, calls the country âAldi for prostitutesâ.
(Diu 2014)
This story features familiar tropes commonly utilised in reports across many jurisdictions: EU accession is blamed for an âexplosive increase in human traffickingâ (Der Spiegel 2013) and for having âtriggered an apparently unstoppable growth in the country's sex industryâ (Diu 2014), with public services âlike schools, housing and the NHS being stretched to breaking pointâ as âvice girls flood inâ (Sheldrick 2014) 2. The conclusion drawn from this apparent rise in sex work, is, of course, not that the presence of migrants (who for many reasons make up a large section of the industry) (AgustĂn 2007) may make prostitution more visible but rather that legalising the activity has failed and that tougher measures are required (Der Spiegel 2013).