JURIST Assistant Editor Elizabeth Hand, University of Pittsburgh School of Law Class of 2014, is the chair of the LGBT committee of the University of Pittsburgh School of Law’s National Lawyers Guild. Hand argues that sex workers in the US are currently harmed, not helped, by policies aimed at their protection, and she explores options for decriminalizing and legalizing prostitution as a means to tackle problems of violence, abuse and health issues… (Her opinions are not intended to represent those of JURIST)

Shohagi was only fourteen when her father arranged her marriage. Sent away from her home, family and friends to marry an unknown man who was much older, she quickly discovered her partner’s violent nature. The abuse sent her fleeing back home to a family that rejected her for disobeying her father, threatening her with death. No longer possessing any support system or income, she was shepherded into a brothel in Calcutta. Western perspectives on sex work require such a tale to be met with horror and sympathy. However, Shohagi describes her experience as a sex worker with hope and empowerment. Working in a brothel gives her the chance to earn an income and support herself. Distanced from the violence of both her husband and family, she prefers her life of autonomy.

Shohagi’s story is far from unusual, yet it does not conform to the usual cautionary tale that accompanies debates about sex work. Too often the narrative is one of woe and misfortune that leaves a woman with no choice but to become a prostitute, and her life rapidly decays. Adopting this typical western, feminist criticism of prostitution leaves no room for the possibility that a person chooses sex work, and is also pursuing his or her best interests. While many second-wave academics, like Catharine MacKinnon in her article Prostitution and Civil Rights, draw a distinction between indentured servitude and sex work by making the argument that a condition entered into voluntarily, prostitution, is different than one entered into involuntarily, servitude. However, functionally they are both treated as a type of slavery. This approach fails to validate a person’s choice to work as a sex worker. In the name of protecting women, MacKinnon fails to acknowledge the agency of women who choose sex work. A viewpoint like this highlights the shortcomings of western ideologies that tend to equate morality with legality. To the contrary, harm reduction strategies can offer protection to sex workers, who are at a high-risk of contracting HIV or facing sex-related violence. However, rather than focusing on harm reduction, generally criminalization is preferred, which strips sex workers of valuable protections and condemns them as immoral.

While no federal law exists that bans all prostitution across the board, Nevada is the only state that, in a few counties, has legalized some forms of prostitution. Many states enforce punishments exceeding a year in prison for this line of sex work. In essence, with the exception of a few counties in Nevada, prostitution is illegal in the US. The reasons cited for why prostitution should remain illegal range from the argument that it is degrading and base to the idea that it is a form of violence against women, or that banning it deters violence against women. Are these compelling enough reasons to justify the continued criminalization of many forms of sex work? Looking to other countries’ approaches to monitoring sex work, the US has a lot to gain from legalizing prostitution as a means to ensure sex workers’ safety, health and protection from abuse. If the US were to legalize prostitution, the government could more closely regulate it, implementing harm reduction strategies that could be pivotal in tackling HIV/AIDS, STIs, and violence towards sex workers.

The US has traditionally disfavored the implementation harm reduction strategies, preferring to take the moral high road. From needle exchanges to the regulation of sex work, the US chooses hardline stances against these activities at the cost of abandoning citizens that could be offered partial protection. Needless to say, HIV and AIDS are significant concerns when it comes to sex work, and US policy continually uses HIV/AIDS as a guise for providing a motive for eradicating sex work, specifically prostitution. However, when the government steps in to monitor and regulate commercial sex, as opposed to prohibiting it, HIV incidence is likely to go down. Without the government stepping in to police the sex trade, sex workers will continue to be at high risk of infection, while also lacking access to health care and prophylactic resources. Policies aimed at regulating brothels for public health reasons have had tremendous success in lowering not only the incidence of HIV infections in sex workers, but also the overall incidence in the population by altering behavior when it comes to practicing safer sex methods. A UNAIDS case study evaluated Thailand’s 100 percent condom use program and found that the government’s mandate of condom use within brothels, a policy aimed at combating rapidly rising HIV at the onset of the global AIDS epidemic, made sex work safer and altered cultural norms surrounding sexual practices for the entire nation.

US strategy, which boils down to an incredibly myopic goal of eradicating HIV/AIDS, often sacrifices lifesaving harm reduction opportunities. As evidenced by US policy, and foreign countries’ policies on sex work that it has influenced, teaching abstinence and criminalizing, or at least stigmatizing, sex work does not reduce the incidence of HIV/AIDS. George W. Bush implemented the President’s Emergency Plan for AIDS Relief (PEPFAR), a government initiative targeted at combating the global epidemic. The program promotes abstinence as the first line of defense in combating HIV/AIDS, which, in this context, begs the question, how do you teach abstinence to a sex worker?

Another caveat of the plan requires organizations that seek aid to sign an anti-prostitution pledge. In other words, organizations that depend on funding for tackling HIV/AIDS must adopt the same anti-prostitution stance as the US. This approach fails to recognize that cultural differences, gender dynamics and social norms can lead to varying views of sex works, and that it is not inherently harmful or degrading. By complying with such a hardline stance on prostitution, some of the most at-risk individuals are denied assistance by demanding that sex workers choose between supporting their families and having access to AIDS treatment or funding. The US policy on foreign AIDS funding often stands in direct contradiction to being able to provide relief.

For example, South Africa has incredibly high rates of gender-based violence (GBV), including rape and corrective rape, and a high prevalence of HIV/AIDS. These issues are intimately linked. HIV transmission is linked with gender equity imbalances, inability to negotiate condom use, rape and marked age differences between sexual partners. Sex work, obviously, plays a role in all of these obstacles women face in reducing their risk of contracting HIV. Both issues, HIV and GBV, should be tackled as a single problem as opposed to separate blights. Under PEPFAR, organizations that wish to receive funding cannot take broader, harm reducing approaches in addressing HIV-GBV problems. In other words, US efforts to eradicate HIV/AIDS ignore solving the underlying, root causes for the spread of HIV and forces other organizations to as well.

Other Sub-Saharan African nations, such as Rwanda, have experienced an exacerbation of the HIV/AIDS epidemic due to the criminalized status of sex workers. In a survey, the Rwanda Biomedical Center found that HIV prevalence among sex workers in the nation is 51 percent. Sex workers in Rwanda have shared that the illegal nature of their profession has a direct impact on HIV prevention and treatment. For instance, when HIV-positive sex workers are jailed for their activities, they are unable to continue treatment, and an uninterrupted regimen is of the utmost importance for the success of antiretroviral therapy. Sex workers also face stigma and discrimination in their communities, and even from health workers. The instability surrounding illegal sex workers’ lives directly relates to their capability to maintain access to treatment, and low status impedes ability to negotiate condom use.

Beyond health concerns, due to their criminalized status, sex workers are treated as second-class citizens, when it comes to accessing the legal rights enjoyed by all US citizens. Categorized as criminals, they often avoid seeking legal recourse to combat frequent abuse by their clients, pimps and even police officers. In addition, when sex workers do report their claims, they face serious obstacles of credibility. Many find it difficult to understand how a prostitute could be raped. In other words, society generally believes in the ongoing and implied consent of sex workers, or it does not value their consent to the same level it values that of non-sex workers.

Rape is generally underreported; actually, it is the most underreported crime in the US. Most people estimate that only 16 percent of rapes that occur are reported to the police. Consider, then, the underreporting of rape that must occur within the sex industry. In particular, State v. Magana, a case in which an Oregon police officer used the threat of arrest to torment female drivers and sex workers, highlights the occurrence of police officers being brought to justice for the rape, extortion and abuse of sex workers. While such abuses of power occasionally gain recognition, there is rarely a call to arms to reform the sex work industry to ensure a decrease in their occurrence and their prosecution when they do occur.

Sex workers do not need to be rescued. They need equal rights and equal protection under the law. Internationally, anti-prostitution efforts operate under the guise of helping or rescuing sex workers. However, frequently they result in the deportation of women, in the denial of their income and the stripping of their agency. Such efforts pose a significant risk to sex workers. Chantawipa Apisuk, the founder of EMPOWER and a sex work activist, notes that, “[w]e have now reached a point in history where there are more women in the Thai sex industry being abused by anti-trafficking practices than there are women exploited by traffickers.”

There have been a number of notable steps toward legalizing some forms of sex work. For example, the prostitution policies of the Netherlands are some of the most well known examples of legal sex work. Also, Ontario recently overturned a ban on brothels, claiming that such a ban is unconstitutional because sex workers are left unable to protect themselves in their trade. Botswana has been trying to legalize prostitution since last year. President Festus Mogae argues that, “[d]ecriminalising sex work does not mean encouraging it, but it would rather pave the way for policies that protect those who have been forced into the trade.” While his opinion fails to recognize the legitimacy of choosing sex work as a profession, his push for protecting sex workers is a step in the right direction. Thailand, a popular sex tourism destination, has decriminalized sex work in the past for health reasons and economic benefits, leaving taxation as the only issue with regard to prostitution. This is only a sample of jurisdictions that have chosen to decriminalize or regulate sex work, and the US should model its stance after such reforms, which allow for harm reduction. While none of these countries’ policies are without flaws, they highlight a move in the right direction, recognizing and preserving the rights of sex workers.

Anti-prostitution or anti-trafficking policies often come across as altruistic on their face, but the underlying rationale behind controlling sex workers’ lives and decisions are all to often misogynistic, or at least paternalistic. Were the US to rethink its moralistic philosophy behind banning some forms of sex work, such as prostitution, sex workers’ best interests could be met on their own terms. While the profession continues to be criminalized, women and men who make money through sex work do not have a voice; their voices are categorized solely as the voices of criminals and deviants. Giving them, as a group of people, a legal status empowers them to control their work conditions and their lives.

Elizabeth Hand holds a degree in English and Women’s Studies from the University of Michigan. Focusing primarily on issues of sexual politics and LGBT studies, Hand worked as a research assistant to compile findings on processing male rape in the legal field. She also worked for Richard Ducote, PC, a firm specializing in advocating for survivors of sexual abuse and domestic violence.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Elizabeth Hand, Legalization of the World’s Oldest Profession, JURIST – Dateline, Apr. 8, 2012, http://jurist.org/dateline/2012/04/elizabeth-hand-legalizing-prostitution.php.