Legalizing Prostitution: From Illicit Vice to Lawful Business (14 page)

Pressure from prohibitionist groups helps to explain the Bush administration’s actions against pornography.
¹¹⁶
The Justice Department created a second obscenity branch and staffed the two units with prominent antiporn individuals.
¹¹⁷
One major figure is Bruce Taylor, who was appointed as the obscenity unit’s senior legal counsel. He had previously been a lawyer for the nation’s premier antipornography group (Citizens for Decency through Law, founded in 1956) and was president of another antiporn organization (the National Law Center for Children and Families).
¹¹⁸
Since Taylor has been such a major player in the campaign against porn both inside and outside government, his views on pornography are especially noteworthy:

I still believe that pornography has a bad effect on society and on families, and it’s not a good thing for guys to look at. It’s like the training manual for how guys get to be chauvinist jerks. I mean, you don’t treat a woman well if you treat her like she’s treated in a porn movie. It’s not the kind of thing you want your boy to be looking at or that the guy who comes to date your daughter is looking at. You don’t want your husband looking at it. You don’t want your boyfriend looking at it. You don’t really want your wife looking at it.
¹¹⁹

For Taylor, all depictions of penetration are by definition obscene, which means that “just about everything on the Internet and almost everything in
the video stores and everything in the adult bookstores is still prosecutable [as] illegal obscenity.”
¹²⁰
This far-reaching definition of obscenity is much broader than what some jurisdictions would define as obscene. (Under
Miller v. California
, 1973, obscenity is determined by local community standards, which in practice means a jury’s assessment of whether a particular work appeals to “prurient interests,” depicts sexual conduct in a “patently offensive way,” and lacks literary, artistic, political, or scientific value.)
¹²¹

Appointment of staunch antiporn officials made a difference. Under their leadership, the Justice Department launched a new crackdown on adult pornography (the Clinton administration focused on child porn).
¹²²
During the Bush administration, 361 individuals were charged with adult obscenity violations, about twice as many as were charged during the Clinton years.
¹²³
In Bush’s last year in office (2008), 54 defendants were charged, compared to 20 in the first year of Obama’s administration (2009).
¹²⁴

These trends demonstrate an extraordinary amalgamation of interests between prohibitionist groups and government agencies during the Bush years. A final illustration of this interpenetration is the link between the Justice Department and a leading antiporn organization, Morality in Media (MIM). The Justice Department’s website contains a section, “What Citizens Can Do about Obscenity,” which encourages people to report “hardcore pornography.” Since 2004, visitors who click on an icon are redirected to a MIM-run site, whose employees then conduct a review. MIM has received large government grants to fund its review of the complaints.
¹²⁵
In the past few years, 67,000 citizen complaints have been passed from MIM to the Justice Department.
¹²⁶
That the Justice Department’s website provides links to MIM appears to reflect a seamless convergence of interests with a very partisan, conservative organization.

The advent of a new government in the United States is unlikely to alter the status quo, given how far-reaching the state’s investment in prohibition has become. Right-wing political and religious forces have less access to the Obama administration than to its predecessor, but the now fully institutionalized legislation, agencies, and enforcement machinery will remain firmly in place for the foreseeable future. Moreover, many of the officials who were tasked with obscenity enforcement and trafficking policy during the Bush administration continue their work under the Obama administration.
¹²⁷
Chapter 4
moves our policy discussion from the American context, where criminalization reigns supreme, to a detailed consideration of the alternatives of decriminalization and legalization in other nations.

A New Frontier

The depiction of prostitution in the media and in government circles is almost always based on information from nations where it is illegal and subject to criminal penalties. This skews both popular perceptions and public policy. Most of the discourse regarding prostitution reflects its illegal status—with little or no consideration of alternative models. When legalization is debated in the United States, it is usually in the abstract, without reference to actually existing legal systems. Similarly, most academic studies have been conducted in nations where prostitution is criminalized, marginalized, and underground. This means that knowledge is heavily skewed by a nearly exclusive focus on only one mode of production—namely, criminalized sexual commerce. Much less is known about nations that have more liberal policies and thus present an alternative to blanket criminalization.

This huge gap in the research literature has implications both for our understanding of prostitution and for public policy. It seems important to think “outside the box” of American-style criminalization, to imagine something different and perhaps superior to the syndrome of illicit, stigmatized, and marginalized sexual commerce. As philosopher Christine Overall wrote, “It is imaginable that prostitution could always be practiced, as it occasionally is even now, in circumstances of relative safety, security, freedom, hygiene, and personal control.”
¹
This offers a contrasting picture to the conventional wisdom that prostitution is destined to remain a distasteful practice or oppressive institution under any and all circumstances.

Can the laudable goals mentioned by Christine Overall be advanced under a system in which prostitution is legal and regulated by the government? Oppression theorists would answer with an unequivocal “no.” Committed to
a strict prohibitionist platform, they insist that legalization will only make the situation worse than under a regime of criminalization. Decriminalization and legalization do nothing, they claim, to alter the gender inequality inherent in sex work. Sheila Jeffreys even believes that male domination is the very reason why some nations have considered legalization, in her claim that these “patriarchal governments [are] acting in the interests of male citizens.”
²
What’s more, legalization is viewed as giving an official stamp of approval to a vile institution and creating a “prostitution culture” in which commercial sexual transactions are rendered acceptable. “When legal barriers disappear,” Janice Raymond declares, “so too do the social and ethical barriers to treating women as sexual merchandise. Legalization of prostitution sends the message to new generations of men and boys that women are sexual commodities and that prostitution is harmless fun.”
³

These are
moral
objections that could easily be applied to commercial advertisements and to the entertainment industry more broadly, where sexual objectification is pervasive. But in addition to legalization’s role in perpetuating a culture that devalues women, these authors identify more specific problems that they associate with legal prostitution, namely:

• Increased incidence of exploitation and involvement of organized crime.
⁴

• Abuse: “Legitimizing prostitution as work has simply worked to normalize the violence and sexual abuse that [workers] experience on a daily basis. … Legalized prostitution is government-sanctioned abuse of women.”
⁵

• Proliferation: legal prostitution “encourages men to buy women for sex” because it makes paid sex more socially acceptable.
⁶

• Trafficking: “wherever prostitution is legal, sex trafficking from other countries is significantly increased into both legal and illegal sex businesses in the region.”
⁷

For these reasons, oppression theorists argue, legalization is disastrous for sex workers and for the larger society.

This is hardly an abstract debate, as the oppression paradigm is the dominant one in the policy sphere. Prohibitionists have been extremely successful in popularizing this paradigm via the mass media and in gaining official government endorsement of it in the United States and abroad.
⁸
In many nations, the oppression paradigm is the accepted, conventional wisdom.

Before proceeding, it is important to consider the question of whether government policy makes any difference in the way prostitution is organized and experienced by workers, clients, and third parties. As we have just seen,
oppression writers believe that government policy makes a huge difference, hence their campaign against legalization. But a few other scholars take the radical view that it matters little whether prostitution is illegal or legal and, if legal, what the regulations consist of. In other words, prostitution is seen as incorrigible, as almost entirely policy resistant. This conclusion is based on comparisons of different nations and the “finding” that diametrically opposed systems have little or no effect on commercial sex practices. Elizabeth Bernstein argues that policy changes in the late 1990s in Sweden, the Netherlands, and the United States resulted in “similar shifts on the ground,” including

the removal of economically disenfranchised and racially marginalized streetwalkers and their customers from gentrifying city centers; the
de facto
toleration of a small tier of predominantly white and relatively privileged indoor clients and workers; and the driving of illegal migrant sex workers further underground. … Whether sex work is decriminalized, legalized, or criminalized, the interests of real estate developers, municipal and national politicians, and business owners may overshadow the concerns of feminists and sex workers. … Despite some important surface-level contrasts … regimes which legalize the sex trade as well as those which claim to seek its elimination share several common threads which link them to larger changes in the global economy.
⁹

There are several problems with Bernstein’s formulation. First, it assumes that “the interests” of economic and political actors are uniform both within a nation and across nations. Such a monolithic picture disregards the possibility of conflicting interests between state and economic elites as well as within each sector. Second, the voices of sex workers themselves are absent from Bernstein’s arguments, so it remains an open question how such macro patterns affect and are perceived by the actors involved. And third, the alleged trends are debatable. Street prostitution was not a significant part of the market in the Netherlands to begin with, and the “small tier” of upscale and midrange indoor providers is a myth, as this sector constitutes a substantial share of the market in Sweden, the United States, and the Netherlands. Bernstein’s broad assertion that a nation’s policy (criminalization, decriminalization, legalization) is largely irrelevant is not convincingly argued or evidenced.

Laura Agustín makes the “no differences” argument even more forcefully. She notes that a segment of prostitution actors operate outside the law in all nations and then leaps to the conclusion that all legal regimes are a “failure”:
“
Large numbers
of entrepreneurs and workers, wherever regulation is found,
always
ignore the rules and fail to participate. Given the failure of such regimes
everywhere
to be and do what they claim, it is not rational to continue to argue over which of them is best.”
¹⁰
Agustín does not offer explanations for similar outcomes across different legal orders except to say that the authorities lack sufficient resources to control sex workers and their managers, who are incorrigible “everywhere.” And she chides analysts who believe that policy regimes can make a difference: “The collusion of so many serious social actors in the pretense that the classic prostitution regimes are rational makes me wonder how much evidence that such regimes do not work is necessary before their many adherents give up on them. … Projects to control prostitution do not fit into any rational framework of social progress.”
¹¹
First, it is not clear what is meant by a “rational” policy. Second, we might ask what alternative Agustín favors. Judging from her claim that prostitution cannot be controlled, it appears that she prefers a totally unregulated system in which the state relinquishes its authority. Agustín does not say this, but it is the logical implication of her critique. And third, aside from the observation that “large numbers” of actors do not abide by the rules, Agustín presents
no evidence
for the blanket claim that all policy regimes are a failure—this after scolding other analysts for ignoring “the evidence” that government policies do “not work.”

Jane Scoular is critical of Agustín’s claim that law is irrelevant, but Scoular accepts the idea that “contrasting regulatory approaches have the same empirical effects.”
¹²
She argues, like Bernstein, that the net effect of prostitution policies in Sweden and the Netherlands is the privileging of some sex workers at the expense of others. In Sweden, a 1999 law criminalized clients but not sex workers. This law led to a crackdown on street prostitution (where clients were more visible and vulnerable to arrest) and an expansion of the indoor market. In the Netherlands, legalization resulted in a two-tier system in which some workers are legal and enjoy rights while others are rendered illegal and marginalized. Disparities are indeed characteristic of both cases, but all three authors disregard the qualitative differences between the nations in question. There is a stark difference between a nation where prostitution is officially condemned and clients demonized and criminalized (Sweden) and one where workers and clients are legally free to engage in sexual commerce (the Netherlands). It is, therefore, absolutely
not
the case that these legal systems have “the same empirical effects,” as Scoular and Bernstein claim, or have no effect, as Agustín insists. There may indeed be
some
similarities in the consequences of prostitution policies across nations
(a conclusion that has yet to be fully documented, given the state of current research), but the empirical evidence does not justify the assertion that the effects are “the same” or that policy makes “no difference.”