Does a law that prohibits the
selling of sex protects
or infringe women's rights?
Cai Sirui, Raffles Institution, Singapore
Winner of the 2020 Law Prize ​ | 8 min read
“Slavery still exists, but now it applies onto to women
and its name in prostitution”, wrote Victor Hugo in Les
Misérables. Hugo’s portrayal of Fantine under the
archetype of a fallen woman forced into prostitution by
the most unfortunate of circumstances cannot be more
jarringly different from the empowerment-seeking sex
workers seen today, highlighting the wide-ranging
nuances associated with commercial sex and its
implications on the women in the trade. Yet, would Hugo
have supported a law prohibiting the selling of sex for
the protection of Fantine’s rights?
As can be seen from the drastic variation in related legal
framework across countries, the debate surrounding the
regulation of commercial sex is one that is inexplicably
linked to morality, human rights and gender roles - and
one with no easy answer at that. Before delving into my
arguments, I will clarify some key terms and set the
scope of discussion: “selling of sex” will be defined as
the provision of sexual services in exchange for money
or goods, an action in which the prostitute is the doer. A
law that prohibits the selling of sex would thus be a law
that criminalises and punishes the party providing the
sexual services (on top of other parties involved, in most
cases), which is most aligned to the prohibitionist model
in amongst the four broad models widely referenced by
recent literature (Chuang, 2010). While the selling of sex
is most definitely not exclusively carried out by women,
this essay will limit its discussion as such, given its focus
on the implications on women’s rights as well as the
relative rarity of male sex work (Brussa, 2004). With
these in mind, I argue that a law that prohibits the selling
of sex infringes - rather than protects - women’s rights,
on the grounds of the validity of the empowerment
narrative as well as the limitations of the law in enforcing
the rights of vulnerable women in practice.
A key argument proffered by those who believe that
prohibiting the selling of sex would protect women’s
rights is that prostitution is a violation of human rights in
itself, it being a form of oppression against women that
is inherently coercive. This is clearly spelt out in the
United Nations Convention for the Suppression of the
Traffic
in
Persons
and
the
Exploitation
of
the
Prostitution of Others (1950), which states in its
preamble that “Prostitution ... (is) incompatible with the
dignity and worth of the human person”. It naturally
follows that such
blatant violation
of the most
fundamental of rights should not be condoned by the
law.
In a similar vein, a further argument in favour of a law
prohibiting the selling of sex is that prostitution is the
product
of
structural
and
institutionalised
male
dominance, such that the lack of prohibitive legislation
would further reinforce and legitimise the patriarchy at
the expense of women’s rights and their standing in
society.
Against
the
context
of
long
standing
patriarchism and the systemic oppression of women
(Dobash
and
Dobash,
1981),
sexual
commerce
perpetuates women’s subordination to men through
providing a patriarchal right of access to women’s
bodies (Farley, 2005). Women are seen as a mere means
to an end, their bodies a mere commodity at the disposal
of men seeking sexual satisfaction, only worth the
money they receive in exchange for their services. In the
absence of a law prohibiting all aspects of the sex trade,
such oppression of women is not only allowed to
continue, but also institutionally legitimised. This clearly
compromises the status of women, infringing their rights
to own their bodies and to be counted as equals to the
other sex.
While I recognise the validity of the argument that
prostitution is harmful to women who had limited agency
in entering the trade, a more comprehensive picture
would encapsulate a dual reality of empowerment and
exploitation (Sagade and Forster, 2019). In the case of
the former, prohibition encroaches on the sex worker’s
autonomy to free choice of work; for the latter, a law
prohibiting the selling of sex is unlikely to be efffective in
protecting vulnerable women from the harms of
prostitution; it might even work to the opposite effect.
Both of the above arguments in favour of prohibition
hinge on the premise that the selling of sex can never be
voluntary. They posit that sex workers are the victims of
rape and exploitation who lack agency and therefore
have no genuine consensual capacity (Tiefenbrun, 2002
and Sullivan, 2007). However, recent developments in
the sex positivism movement have surfaced the voices
of women who make the rational and voluntary choice to
sell sex for an income, to whom prostitution should be
seen
as
legitimate
work.
At
the
2015
Amnesty
International Conference, Meg Munoz, a former sex
worker, spoke up to advocate for the legitimisation of
sex work, stating that escorting served her well, as a
source of income and even stability. Similar narratives
can be found on the blog ‘Tits and Sass’, on which sex
workers contribute entries that seek to celebrate sex
worker culture and destigmatise prostitution as immoral
and degrading.
One might point out that such activists are a minority
who are educated and make hundreds of dollars per
hour (Bazelon, 2016), but they do represent authentic
and legitimate views of a group of sex workers. For
these women, the criminalisation of prostitution is an
overly paternalistic move which infringes rights to free
choice of work and overall self-determination. Article
23(1) of the Universal Declaration of Human Rights (1948)
states that all should have the right ‘to work, to free
choice of employment, to just and favourable conditions
of work and to protection against unemployment’. In
dictating to women that working in prostitution is
inherently ‘wrong’, the state is denying them the ability
to exercise agency through the negotiation of their
sexual autonomy (Sagade and Foster, 2018), drawing the
line on what sexual acts are intimate when the decision
should have been the individual’s to make, thereby
clamping down on their rights to self-determination.
Certainly, this is not to discount the fact that for the
majority of female sex workers, selling sex, if a voluntary
choice at all, is made as a result of limited alternatives
and disadvantaged circumstances. For this group of
women, exploitation is an unfortunate reality, seeking
“empowerment” in sex work a far flung fantasy. For
example, in India, women and children are trafficked for
commercial exploitation either by deception or coercion,
and some are sold by family members or family friends
into sex work, typically in the context of rural poverty,
food insecurity and large families (Patel, 2013). Even
when direct coercion is not involved, it is common for
women to enter prostitution because they are faced with
economic insecurity and limited alternatives, choosing
this line of work as the “lesser evil”.
In such cases, the harms brought about by prostitution
are real and pressing, and the rights of women are
inevitably compromised by them being in the sex trade.
This, however, does not mean that a law prohibiting the
selling of sex will serve to protect their rights; in fact, it
is quite the contrary.
First, the argument that prohibiting the selling of sex
protects the rights of vulnerable women breaks down
when examining how such a law would function in
practice. There is little reason to believe that such
legislation would be effective in eradicating prostitution;
it has long been the case that as long as demand for
commercial sex exists, the sex trade will remain,
bringing its activities underground and carrying them out
illegally. For example, in China, Japan and South Korea all of which adopt a prohibitionist model - prostitution
remains rampant, the sex trade even contributing
copious
amounts
economies
(US
of
revenue
Department
of
to
the
State,
countries’
2009
and
Thompson, 2016).
Furthermore, to charge and punish a woman selling sex
can make it more difficult for her to leave the sex trade,
further promoting prostitution instead of preventing it
(Mullin, 2020). When burdened with a fine, women tend
to continue to prostitute themselves in order to pay off
the fine. When charged with an offence, a criminal
record jeopardises future employability, which forces
women to remain in the industry. It is thus clear that
merely having a law that prohibits the selling of sex
without addressing the root causes of prostitution is
largely ineffective in removing the existence of such
exchanges; in actual practice, such a law fails to protect
women from the harms associated with selling sex,
thereby invalidating the above claims that prohibition
protects women’s rights.
Not only does a law prohibiting the selling of sex stop
short of curbing prostitution and the harms that come
with it, it is also likely to further exacerbate the
vulnerability of women in the sex trade. When the status
of women selling sex is unlawful, they are marginalised,
being viewed as criminals (Vance, 2011) and become
susceptible to sexual abuse and violence from clients,
brothel owners and the police. In Cambodia, for example,
law enforcers have used the law on the Suppression of
Human Trafficking and Sexual Exploitation to exploit
and abuse sex workers, whose statuses are unlawful due
to the prohibitionist legislation. In some cases, sex
workers have been forced to pay bribes to avoid arrest
or have been raped by officers after being detained
(Mullin, 2020).
For women to whom simply exiting the trade is not a
viable option, a prohibitive law also means that they
would be denied protection by the law in areas such as
their safety, health and children, infringing on these
basic rights. This leaves them worse off than they would
have been otherwise; not only do they continue to be
exploited sexually (now without the protection of labour
law), they are also subject to penalisation on all fronts.
For instance, their children could be expelled from
school, and they could find themselves unable to find
lawful accommodation. Stigma, poverty, and exclusion
from legal social services would also increase their
vulnerability to HIV infection. Without tackling the root of
the problem - the conditions under which women resort
to prostitution in the first place - assigning them an
unlawful status brings more harm than good where their
rights are concerned.
Even if the law were an effective deterrent such that
women would be incentivised to leave the trade as a
result, it does not necessarily follow that they would then
have fully escaped the wrath of sexual exploitation and
rights would be better protected henceforth. Given
the
fact
that
vulnerable
women
are
already
in
disadvantaged positions with limited choices for work,
pushing them out of sex work might lead to even more
detrimental circumstances. For instance, Indian sex
workers cited in interviews that their former occupations
- typically domestic service, construction or factory
work - were often exploitative and coercive, including
expectations of sexual exchanges for work assignments
(Sahni & Shankar, 2013). Should they return to these in
place of sex work, they would still be exploited sexually,
but this time without remuneration, legal protection or
control over their sexual exchanges. In this case, their
human rights and standing in society compared to men
is further jeopardised, which shows that even in the
unlikely event that the legal prohibition of the selling of
sex succeeds in reducing prostitution, systemic threats
to women’s rights remain.
To conclude, in acknowledging the legitimacy of both
the empowerment and exploitation narratives, it is clear
that at best, legislation against the selling of sex fails to
protect women’s rights; at worst, it further infringes
them. In order to protect the rights of the vulnerable
women in the sex trade, an abolitionist framework - in
which buyers and other participants in the sex trade are
criminalised but not the women themselves - might be a
better alternative to full prohibition. This must also be
accompanied by efforts outside the legal sphere to
tackle the problem in more fundamental ways, such as
lifting
women
out
of
socially
and
economically
vulnerable positions so that they do not have to resort to
selling sex for money in the first place.
Bibliography
Bazelon, E. (2016, May 5). Should Prostitution Be a Crime? Retrieved
from https://www.nytimes.com/2016/05/08/magazine/should-prostitutio
​
n-be-a-crime.html
Brussa L. (2004). European network for AIDS & STD prevention among
migrant prostitutes. Final report No. 6, June 2002-June 2004. Amsterdam:
TAMPEP International Foundation.
Chuang,
J. (2010).
Rescuing
trafficking
from
ideological capture:
Prostitution reform and anti-trafficking law and policy. University of
Pennsylvania Law Review, 158(6), 1655–1666.
Dobash, R. E., & Dobash, R. (1981). Violence Against Wives: A Case Against
the Patriarchy. Contemporary Sociology, 10(3), 413. doi: 10.2307/2067357
Farley, M. (2005). Prostitution Harms Women Even if Indoors. Violence
Against Women, 11(7), 950–964. doi: 10.1177/1077801205276987
Mullin, E. (2020, January 20). How Different Legislative Approaches Impact
Sex-Workers.
Retrieved
from https://theowp.org/reports/how-different-legislative-approaches-i
mpact-sex-workers/
Patel, R. (2013). The trafficking of women in India: A four-dimensional
analysis. Georgetown Journal of Gender and the Law, 14(1), 159–188.
Sagade, J., & Forster, C. (2018). Recognising the Human Rights of Female
Sex Workers in India: Moving from Prohibition to Decriminalisation and a
Pro-work Model. Indian Journal of Gender
Studies, 25(1), 26–46. doi: 10.1177/0971521517738450
Sahni, R., & Shankar, K. (2013). Sex work and its linkages with informal
labour markets in India: Findings from the first pan-India survey of female
sex workers (IDS Working Paper No. 416).
Retrieved from http://www.ids. ac.uk/files/dmfile/Wp416.pdf
Sullivan, B. (2007). Rape, prostitution and consent. The Australian and New
Zealand Journal of Criminology, 40(2), 127–142.
Thompson, N. (28 February 2016). Is Japan Having Sex?. GlobalVoices.
Tiefenbrun, S. (2002). The Saga of Susannah - A U.S. Remedy for Sex
Trafficking in Women: The Victims of Trafficking and Violence Protection
Act
of
2000.
Utah
Law
Review,
107–175.
Retrieved
from https://heinonline.org/HOL/LandingPage?handle=hein.journals/utahl
r2002&div=10&id=&page=
​
United Nations (1950). Convention for the Suppression of the Traffic in
Persons and the Exploitation of the Prostitution of Others. Retrieved
from https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg
_no=VII-11-a&ch apter=7
United Nations (1948). Universal Declaration of Human Rights. Retrieved
from https://www.un.org/en/universal-declaration-human-rights/
United States Department of State (25 February 2009). 2008 Human Rights
Report: China (includes Tibet, Hong Kong, and Macau). Section 5:
Discrimination, Societal Abuse, and Trafficking in Persons.
Vance, C. (2011). States of Contradiction: Twelve Ways to Do Nothing about
Trafficking While Pretending To. Social Research, 78(3), 933-948.
Retrieved June 1, 2020, from www.jstor.org/stable/23347022