Last week the Supreme Court held that the federal government cannot force organizations to maintain a policy explicitly opposing prostitution as a pre-condition to obtaining funds to combat HIV/AIDS worldwide. The decision is widely read as a victory for freedom of expression, since the Court declared that the United States Leadership Act Against HIV/AIDS’s condition to receive funds violated the First Amendment. First Amendment decisions are not always compatible with general feminist views. This time, however, the decision has the potential to lend support to women’s rights.
The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 was passed as part of a strategy for the U.S. to become a world leader in combating these pandemics. The Act imposed two conditions on organizations interested in obtaining funds: 1) the funds could not be used to promote the legalization or practice of prostitution and sex trafficking, and 2) funds could not be used to provide assistance to groups or organizations that did not have an institutional policy that explicitly opposed prostitution and sex trafficking. The second condition was held unconstitutional, but both conditions are flawed in that they treat prostitution and sex trafficking as two sides of the same coin. By mistakenly conflating sex trafficking and prostitution, the illusion that combating sex trafficking will free women from prostitution is perpetuated. Arguing in favor of the legalization of sex trafficking amounts to promoting slavery, while working for the legalization of prostitution is something different entirely. Numerous perspectives exist as to whether women are better off when prostitution is legal or illegal. One would be hard pressed to find a sex slave who argues in favor of sex trafficking, but many sex workers advocate for the legalization and dignified treatment of their work.
This decision allows for more pragmatic strategies on the fight against HIV/AIDS; always a good sign. The decision will also allow for organizations dealing with HIV/AIDS to separate positions between sex trafficking and prostitution. Principled positions may sound good on paper, but, especially when dealing with global problems, pragmatism must prevail. What works on one side of the Earth may not work on the other. Sex workers usually argue that legalization and regulation of their occupation would allow them access to better health services and safer work environments. The essential exploitation that comes with prostitution is always up for discussion. While we have that discussion, though, we may want to ensure that the least number of women have to work in unsafe conditions, subject to diseases and gender violence. As I usually tell students, we all want world peace, but it is unlikely we will get it anytime soon. In the meantime, we must be pragmatic about what we can really get. A good start is to work side by side with sex workers in combating both HIV/AIDS and sex trafficking. While the justices of the Supreme Court may not have had this in mind when they signed their opinion, the decision may help to treat prostitution and sex trafficking differently.
I have to emphatically challenge this statement: “By mistakenly conflating sex trafficking and prostitution, the illusion that combating sex trafficking will free women from prostitution is perpetuated.”
Johns cannot tell the difference between sex trafficking victims and “volunteer” prostitutes, so what criteria are you using to distinguish them? Many ‘sex workers’ began their ‘careers’ as trafficked children and the nature of survival sex that is based on women’s inequality across the world does not separate neatly into two categories.
You are also ignoring what prostitutes actually say, because there is *no* research that shows: “Sex workers usually argue that legalization and regulation of their occupation would allow them access to better health services and safer work environments.” None at all. Quite the opposite. Women in prostitution have expressed a complete lack of faith in legalization. Even a majority of legal German prostitutes say they don’t think legalization has protected them! See e.g. http://www.examiner.com/article/german-s-legalized-prostitution-brought-more-exploitation-than-emancipation-to-women
Or read more generally about Amsterdam here: http://www.spectator.co.uk/features/8835071/flesh-for-sale/
As Ruchira Gupta has noted, focusing on condom distribution in brothels is focusing on protecting *men* from disease. Prostituted women, whether trafficked or “volunteers” are not even minimally protected until condom use is mandatory and enforced, which will never happen while pimps continue to benefit financially from catering to men who do not want to use them.
More data that legalization leads to increases in trafficking here: http://www.catwinternational.org/Home/Article/153-legalizing-prostitution-is-not-the-answer-the-example-of-victoria-australia
See also: http://eprints.lse.ac.uk/45198/1/Neumayer_Legalized_Prostitution_Increase_2012.pdf
(Seo-Young Cho, Axel Dreher, and Eric Neumayer found in this article, published in World Development that empirically countries that legalized prostitution have larger reported inflows of human trafficking than similar countries where prostitution is illegal. They also found this effect in a more detailed study of Sweden, Germany and Denmark, which changed their prostitution laws.)
I don’t think regulating prostitution will eliminate sex trafficking, or that eliminating sex trafficking will eliminate prostitution. But I do see a difference between a sex slave and a sex worker. I am not so naïve to think that sex workers dreamed of a career selling sex when growing up. They also likely didn’t grow up dreaming to be coal miners and many other occupations, either. I strongly oppose labor exploitation and sex workers indeed suffer the worse of it. This happens even more in places where they are bullied (to put it nicely) by the police, treated as if they were criminals, and forced to work in the streets where the only protection they get is the same source of exploitation: clients and pimps.
Banning prostitution does not eliminate the demand for sex. It only creates an illusion of eliminating the supply. The website of the Network of Female Sexual Workers of Latin America and the Caribbean quotes a woman saying “they are destroying our only source of work” referring to the police raiding brothels (http://www.redtrasex.org/En-defensa-de-su-fuente-laboral.html). This statement reflects the lack of options this particular woman had. But it also reflects her voice, which we tend to hide. We don’t want to hear sex workers, we just want to protect them. The website later on states that “Neuquén [a city in Argentina] will not be the same, the colleagues organized so their voices can start to be heard, so they cannot be ignored anymore”.
I am skeptical of one-size-fits-all answers to policy issues. I cannot say that all sex workers are better off when the sex industry is regulated and many regulations do not aim at protecting sex workers (the case you point out on Germany). It may be true that sex trafficking does escalate when prostitution is legalized. I still haven’t seen, however, a study (including the one posted above) that convinces me that it has not used a predefined starting point, seeking to reach pre-established conclusions (giving a detailed explanation of my critiques to the mentioned study would be too long here). I only know that sex workers, at least in some Latin American countries, who have organized themselves to have their voices heard feel more empowered and have gotten positive results.
PS: The quotes were translated by me from Spanish.
1. Decriminalizing the selling of sex while ramping up prosecution of pimping and buying sex has worked pretty well where it has been implemented. See previous link.
2. Ask any legal business if running a legal business protects them against corrupt law enforcement actors.
3. I work with and speak with real actual live women who sell sex. Most have mental health and substance abuse issues. None of them want to register with the government, pay taxes, undergo health checks (and if they did most would not be allowed to work as legal prostitutes because they are HIV positive or have hepatitis C or tuberculosis or other contagious conditions) or drug screenings or otherwise deal with the complexities of a legal job. And that is assuming they have a citizenship or immigration status that would even make a legal job possible. Every single women who sells sex that I have spoken with would rather have a different job if that was possible for her.
“Every single women who sells sex that I have spoken with would rather have a different job if that was possible for her.” We are in agreement here. I just don’t see the promotion of banning prostitution as a global movement, which most of the time means criminalizing sex workers, as the answer to find them an alternative job.
Can you back this up? “… the promotion of banning prostitution as a global movement, which most of the time means criminalizing sex workers …”?
I do not see promoting prostitution as anything other than consigning women and girls to being sex trafficked. Countries that have decriminalized the selling of sex while increasing the criminal penalties for pimping or buying sex have decreased sex trafficking, the evidence on this is quite good. It is a global movement that warrants support from the U.S. government. Instead, pimps will go back to selling PEPFAR funded condoms in brothels, and pornographers who won’t allow their performers to wear condoms will once again get PEPFAR funds to sell condoms again, and feel free to promote brothels as they wish. The best the women and girls who get raped in these brothels can hope for is that the condoms are actually used, and that maybe sometimes they get some money. I have a hard time finding that feminist.