Maine has passed a law approving the decriminalization of prostitution. This development was reported last week in the Washington Post.
However, in this provision, the selling side of commerce is legal, whereas the purchase remains illegal. This is completely wrong.
The bill’s author and sponsor, state Rep. Lois Reckitt, believes that this model, drawn from one that originated in Sweden, will tackle the behemoth of sex trafficking. Trafficking is indeed a terrible social problem. No one should be forced or coerced to have sexual relations of any kind; and it remains true that the ones most likely to be pressed into sexual slavery are those who have been viewed as the most vulnerable in our society: women and children.
Yet, by arranging things so that the workers (usually women) are free to engage in the commerce whereas the customers are still penalized, Maine creates a situation where the trade itself still isn’t decriminalized. Instead, the entire enterprise becomes a honeypot scheme.
Reckitt admits this openly. She believes that this model will flush out the traffickers, that the customers will be forced to tell authorities where they learned of the availability of such trade.
Reckitt said police traditionally have used the women they arrested for prostitution to get to the people trafficking them. “Now they’re going to have to arrest the johns and lean on them to find out where the trafficking is coming from,” she said.
The structure of this one-sided legality, it appears, is an attempt to “get the big fish.” In this scheme, the workers are bait.
This is exactly wrong, because it does not solve the inherent problems of sex work. In fact, it retains the stigma that attaches to the work and provides little in the way of promoting agency on the part of the workers.
Sex work is already legal in the United States—that is, in some counties in Nevada (though not in the large cities). This arrangement is to the benefit of the people employed there, as the women are able to enter into contracts with the legal brothels (also known as houses or ranches), obtain food and board, and can seek redress under the law if they suffer harm from the actions of either the customers or from management of these brothels.
This is a major point in the favor of legalization, because where prostitution remains illegal, they are often targeted by the police, harassed, blackmailed, even forced into trading favors in exchange for avoiding imprisonment. Police have been known to confiscate condoms and other protective equipment, or to poke holes in the condoms so that they are rendered useless.
If a sex worker is roughed up by a customer, she often feels she cannot turn to the police for protection. It is here that the parasitic arrangement with pimps enters the picture. While these persons often provide physical protection, they also are controlling and abusive, creating another layer of harm for the worker and a new social problem in itself. Make no mistake: pimps should be removed from the equation, and indeed they disappear under the legalization model.
Yet there are problems with legalization as it exists in Nevada.
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While the women receive frequent check-ups for sexually transmitted diseases (once a month for HIV, once a week for all other commonly transmitted STDs), these visits are not covered under any insurance and so the women must pay for these out of pocket.
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The rates for room and board are exorbitant, but the women must work on site. Moreover, the brothel owners or management set the terms for these costs, which often are slanted against the women’s favor.
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The women work a much longer workday than most people in regular fields. In many cases, these women work 12-16 hour shifts for weeks at a time.
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The women are not allowed to leave the premises. These houses are often constructed to enact strict control over how customers are allowed to enter, with secure gates.
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Additionally, as the women are unable to freely come and go, they are captive insofar as to their material needs. In many cases, the brothels operate something akin to a company store, selling supplies such as condoms, but at extreme markups in price. The houses contract with outside clothing suppliers, who show their wares to the women, again charging prices far in excess of the value of the product.
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Even such a small thing as laundering clothing becomes overpriced, as the workers must hire someone, usually one of the housekeepers, to perform this task. Everything is designed to extract money from these women.
(This is not an exhaustive list, just a representative one.)
This means that the brothels are what sociologist Erving Goffman would have considered an asylum, a total environment with no freedom of movement.
A basic social arrangement in modern society is that the individual tends to sleep, play, and work in different places, with different co-participants, under different authorities, and without an over-all rational plan. The central feature of total institutions can be described as a breakdown of the barriers ordinarily separating these three spheres of life. First, all aspects of life are conducted in the same place and under the same single authority. Second, each phase of the member’s daily activity is carried on in the immediate company of a large batch of others, all of whom are treated alike and required to do the same thing together. Third, all phases of the day’s activities are tightly scheduled, with one activity leading at a prearranged time into the next, the whole sequence of activities being imposed from above by a system of explicit formal rulings and a body of officials. Finally, the various enforced activities are brought together into a single rational plan purportedly designed to fulfill the official aims of the institution. (Asylums, pp. 5-6, emphasis added)
This is why I advocate for the decriminalization of prostitution. While the Nevada model is miles above the conditions of walking the streets or of the constant threat of being arrested, jailed, and having a subsequent criminal record, it still creates conditions that are onerous and restrictive, leading to an environment where the workers are taken advantage of by virtue of their position.
Decriminalization, on the other hand, would allow the women to work in a place of their own choosing, according to their own schedule. They would be able to cultivate their own clientele. They would additionally be able to seek redress for injury, just as they are under the legal model. The problem of pimps would fall to the wayside, just as it does under legalization. It would empower the workers to innovate and to pursue their activity under their own power. They would be able to sign up for health collectives and health insurance. Most importantly, they would be able to come and go as they please, returning them to a position of freedom.
An often-voiced objection to prostitution is that it is an industry that employs children. This is addressed in the legal model: the minimum age for employment is 18. This age standard can be carried into a decriminalized model where the state licenses the worker, thus ensuring that the person so employed meets minimum requirements.
While this would not eliminate the black market where children might still be located, it would sequester them in such arrangements so that law enforcement officials could pursue them in ways that utilize their intelligences more efficiently. Any children so found in such arrangements necessarily would indicate a crime ring, and so resources could be invested specifically into that. Adult workers, conversely, would gain the freedom to work without police harassment, and efforts to arrest those who voluntarily enter the trade would come to an end, no longer tying up those resources.
Such an effort would mirror the efforts of states that have moved cannabis out of the category of illicit substances, opening up markets that permit trackable commerce while separating the seekers of cannabis from distributors who also offer other, “harder” substances. Similarly, it is in our interest to keep customers who seek the sex services of an adult from accessing underground sources who might offer up those who are underage.
What we don’t need is a system whereby customers are lured into interactions that appear on the surface to be legal but instead are state-sanctioned traps. There is real danger that the clients prosecuted under such an arrangement would see the women as collaborators, and these men might try to get their revenge and punish these women. This is the inherent flaw in this design: it leaves women open to retaliation.
Additionally, we need to reduce the stigma that attaches to these workers. The bill submitted would, instead, make the stigma more concrete and more permanent. Per the Washington Post,
Reckitt’s bill as originally introduced in March would have changed all references to “prostitution” in Maine’s code to “commercial sexual exploitation.”
“It denigrates all women when some women are being bought and sold,” said Reckitt[.] “There’s no way to have total gender equality in this world if we’re selling women.”
In fact, Reckitt’s conception is what denigrates women. This language would have codified this demeaning definition under the law so that this perspective would be set as the starting point. The perspective itself perpetuates the stigma.
The idea that the workers were “selling themselves” is a common misconception and a dangerous one. The workers are not selling their bodies, at least no more than other workers; rather, they are negotiating their labor—again, just as other workers do. As Margo St. James and Priscilla Alexander, the founders of COYOTE (Call Off Your Old Tired Ethics), stated back in the 1970s:
A rather profound misconception that people have about prostitution is that it is 'sex for sale,' or that a prostitute is selling her body. In reality, a prostitute is being paid for her time and skill, the price being rather dependent on both variables. To make a great distinction between being paid for an hour's sexual services, or an hour's typing, or an hour's acting on a stage is to make a distinction that is not there.
[quoted in Jenness (1990), p. 405]
As advocates for decriminalization of prostitution such as COYOTE, Decriminalize Sex Work, and others have indicated, rather than propounding such views as Reckitt’s, we should work toward negating stigmatization so that these acts and pursuits are normalized. When the stigma is reduced, women will be less likely to be targets for crime and will instead be more likely to be seen as people.
In that light, while it is commendable that the topic of legalization and/or decriminalization of prostitution is being discussed in the halls of legislatures at all, this particular model is the wrong way to go about it. It will not achieve personal or financial freedom for the women in industry. It uses them in an effort to stamp out demand, which is itself exploitative.
The point is that we need to reduce or remove the exploitation, so that these workers can determine for themselves what is the best path for them. Paternalism is not the way. (Paternalism is certainly not how we achieve “total gender equality”: that’s an oxymoron invalid on its face.) We should strive instead to allow women to make their own choices in the pursuit of their own agency.
Related essays:
Further resources:
Erving Goffman, Asylums. Anchor Books Doubleday, 1961.
Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights. Anchor Books Doubleday, 1995.
Frédérique Delecoste & Priscilla Alexander (editors), Sex Work: Writings by Women in the Sex Industry. Cleis Press, 1987.
Robert Prus & Styllianoss Irini, Hookers, Rounders, & Desk Clerks: The Social Organization of the Hotel Community. Sheffield Publishing Company, 1980.
Sallie Tisdale, Talk Dirty to Me: An Intimate Philosophy of Sex. Anchor Books Doubleday, 1995.
J. R. Schwartz, The Official Guide to the Best Cat Houses in Nevada. J. R. Schwartz, 1994.
Valerie Jenness, “From Sex as Sin to Sex as Work: COYOTE and the Reorganization of Prostitution as a Social Problem.” Social Problems (1990), Vol. 37, No. 3., pp. 403-420.