How do government laws affect the lives of prostitutes? Below is an old essay I wrote regarding prostitution laws in today’s Modern nation-state world:
It is hard to imagine reading a paper or watching the news without hearing about some excerpt about prostitution and laws surrounding. After all, prostitution has historically been a popular and controversial issue in many societies. Defining prostitution is difficult because of the various interpretations of its meaning. According to the World Health Organization, prostitution is, “a process that involves a transaction between a seller and a buyer of a sexual service.” On the other hand, the United Nations Program on HIV/AIDS has a more complex interpretation of prostitution: “Sex work may be formal or informal,” and then continue to explain that, “Commercial sex work may be conducted in formally organized settings from sites such as brothels, night clubs, and massage parlors; or more informally by commercial sex workers who are street-based or self-employed.” The complexity of prostitution helps explain why it’s an issue that evokes multiple opinions. In the modern nation-state, prostitution has become a social ‘issue’ that is regulated or prohibited by law. For instance, prostitution may be illegal, legal, or decriminalized. For social and cultural academics, it is important to make the sense of laws and the society. Therefore, one can use different theoretical frameworks, such as feminism or bio-politics, to explain the prostitution phenomena. In this essay, I will look at certain feminist influences on prostitution laws, and it’s implications. I will then analyze those feminist trends in prostitution laws through the lens of biopower. The two popular feminist stances have been either to tolerate prostitution by regulating it or to abolish prostitution by criminalizing it. Overall, prostitution laws result in the further marginalization of prostitutes despite being back by some feminist groups. Prostitution laws, instead, maintains neoliberal state interests while ignoring the true feminist aim of female empowerment.
Biopower is a term that was coined by Michel Foucault, which inspired a new theoretical frame to academic thought. For Foucault, biopower is the ‘”regulatory power of states over populations,” which thus produces, “docile bodies in everyday life of institutions.” In other words, Foucault tried to emphasize that the body is a way to understand a society and how power is used to control their lifestyles. Lifestyles of individuals and their self-care practices are influenced by an overarching power. Giorgio Agamben further elaborated Foucault’s theory. In Agamben’s view, the sovereign power constructs ideals for citizenship where certain lifestyles amount to a ‘qualified life.’ However, individuals who contrast from the ‘ideal’ are living a ‘bare life,’ and thus are excluded in various ways, such as marginalization or facing violence. Therefore, the marginalized groups in society are only marginalized because state power determines who can be included in the society and who cannot. In “What’s Law Got to Do with it? How and Why Law Matters in the Regulation of Sex Work,” Jane Scoular notes that prostitutes are part of the ‘bare life,’ where they are marginalized due to not being ‘ideal’ citizens. To understand biopower, it is important to know who is an ‘ideal’ citizen and answer: what is the purpose of including some while excluding others?
In modern nation-states in the West, a ‘qualified’ life relates to neoliberal ideals. Neoliberalism is a shift in political, economic and ideological policy that began in the 1980’s (Yang, 2013), which currently dominates many governments globally. Economically, it is a policy of free-markets with minimal government interventions. Politically, it is the diffusion of government into smaller institutions. The notion of ‘freedom’ and individualism is the ideology behind neoliberalism, where individual freedom is achieved only through free markets. Yet the hidden element is that neoliberal policies seek to maintain the power of economic elites, and, it’s a “political project to re-establish the conditions of capital accumulation.” Neoliberalism, according to Scoular, is the main idea behind a ‘qualified’ life in Agamben terms. She notes, “modern law operates to regulate the complete lives of individuals,” and thus the law influences social norms. For instance, prostitutes are marginalized due to social stigma. The stigma, as Davey and Kissil mention, is the result of laws that criminalize prostitutes. Prostitutes are criminalized because the state feels they pose a threat to their ideals. For instance, the Contagious Diseases Acts in the late 19th century are said to criminalize prostitutes for their alleged danger to public health. Medical discourses and sciences were used to justify penalizing ‘unregulated’ persons, but in reality it was a moral panic over ‘unregulated’ sexuality. Controlled sexuality was crucial to the Modern nation-state agenda. Thus, prostitutes can only be ‘qualified’ if they satisfy the needs of neoliberal ideals, such as self-regulating themselves in a manner which results capital accumulation. The law is a way of expressing state power in an indirect way, as it influences norms, and thus influences people to maintain neoliberal interests. I will discuss how neoliberal interests are maintained through prostitution laws, but first I will discuss feminism as theory, since certain feminist have a strong stance on prostitution laws.
Feminism consists of many differing outlooks, yet there are notions that all feminists agree upon. For instance, feminists agree that female voices need to be addressed and recognized in society. They also stand for female empowerment through gender equality, especially in a Modern context where women are found less in high status positions compared to men. Despite these agreed upon notions, feminists differ in other aspects. Postmodern feminists, for instance, contend that feminism has been dominated by white, middle-class women, and such women cannot represent the interests of women as a whole. The weakness in feminism is that there is a lack of consensus on a variety of topics. With regards to prostitution, there are oppositional feminist stances, which is highlighted by Maureen Davey and Karni Kissil in their analysis titled, “The Prostitution Debate in Feminism: Current Trends, Policy and Clinical Issues Facing an Invisible Population.” Yet these two feminist stances do not speak for all feminists, because many feminists may be open to other theories on prostitution.
Abolish Prostitution? Regulate it?
Two popular feminist stances towards laws on prostitution are: abolishing prostitution or regulating it. Yet while both have different stances, they both have very limited outlooks. Feminists who seek to abolish prostitution are often termed as Radical Feminists. In their view, prostitutes are victims of male oppression. Their goal is to abolish prostitution, as they feel prostitution only serves to oppress women. An example of this stance is found in Sweden, where prostitution is illegal. However, punishment is only directed at clients, whereas sex workers, seen as victims, are guided by state into ‘exiting’ programs. On the other side, another group of feminists, which Davey and Kissil termed the ‘pro’ feminists, feel that prostitutes have the agency to make their own choices and thus the laws should give them legal rights. The ‘pro’ feminists are usually in favor of laws which prostitution is tolerated. Therefore, legalization assumes that prostitutes will be empowered because they have legal rights. Overall, both the ‘pro’ and radical feminists are not challenging hegemonic state power, but rather are staying within its power. They fail to address how prostitution laws are part of wider form of maintaining state interests. In this view, the two feminist stances in the prostitution debate are problematic, because they are trying to represent the voices of all women. But as Kissil and Davey note, the two feminist stances have seldom consulted with the voices and desires of the prostitutes themselves. The lack of acknowledging the voices of prostitutes is apparent when given the implications of these feminist solutions to prostitution.
Prostitution laws, whether tolerant or against prostitution, results in more disadvantage than advantage for prostitutes. This is rather ironic, since feminist backed prostitution laws are usually aimed at protecting sex workers. For example, in Sweden, prostitutes are only protected from the law so long they adhere to ‘exiting’ programs, which are programs that aid prostitutes to exit the sex industry and integrate in mainstream society. This idea of exiting assumes that all prostitutes have the same desires, and thus all can be controlled. Therefore, prostitutes who don’t exit are deemed as criminals. As Scoular notes, “Criminalization in Sweden resulted in more risky situations for sex workers, where they have less choice of clients, quicker transactions, drop in prices and greater stress” (20). She further notes, “The Swedish Model just got rid of ‘visible’ street workers, while it created ‘invisible’ sex workers in off-street work” (20). Therefore, individuals who remain prostitutes in Sweden become excluded, because society has made no place for them. What is also interesting is how radical feminists aim at the criminalization of men over women, where men become targeted as clients. This actually doesn’t result in gender equality, but rather it shifts the stigma of prostitutes over to men.
Canadian examples illustrate the implications of prostitution laws where prostitution is tolerated. In Canada, the exchange of sex for money is legal, yet other laws make it difficult for prostitutes to conduct their services legally. Tamara O’Doherty (2011) notes that Canadian prostitution laws “ensure prostitution remains firmly entrenched in illicit markets by requiring sex workers to offend the criminal laws in order to work in safety (indoor venues)” (219). She further notes how Section 213 of the Canadian criminal code states that public communication for the purpose of prostitution is criminally prohibited. To illustrate this: brothels cannot legally label themselves as spaces for prostitution. Instead, they have to label themselves as non-sex related businesses, such as a massage parlor. Prostitutes themselves cannot be open about their services either; they cannot discuss with clients beforehand about their services. At the same time, Section 211 makes it illegal to use a place on a regular basis for prostitution, so therefore the massage parlor must ensure they deny sex is going on. According to O’Doherty, this ‘quasi-legal’ atmosphere places sex workers in more vulnerable positions, where they less prone to working in safe places. Given that the two feminist stances both have mainly negative implications for the lives of prostitutes, it seems that laws are not empowering their intended subjects. But rather, it’s pushing the majority of prostitutes to the ‘bare life.’
Since laws do not benefit most prostitutes, then the obvious question is: who benefits from the prostitution law? The State benefits as the laws ensure that their neoliberal interests are not challenged. In Sweden, exiting programs help prostitutes find ‘normal’ jobs, which they will become ‘qualified’ taxpayers, and thus assimilating with the hegemonic ideals and aiding the state power. In some Canadian provinces, for instance, local municipal laws require that massage parlors obtain expensive licenses to operate. As well, Edmonton sex workers are required by local municipal law to obtain licenses for each place they work. The act of licensing is a way of commercializing the sex industry, which means the state profits off licenses. It also is way of controlling and monitoring prostitutes. Therefore, those who participate in licensing are included in society, as they are doing what the state wants. However, not all prostitutes want or are in the position to reveal their identities. For instance, an illegal immigrant is automatically excluded from having ‘qualified life,’ because they are invisible to state recognition. And while legalization is argued to protect some prostitutes, others have argued that increased regulation means increased policing and monitoring over the lives of women. Further, many academics agree that prostitution laws do not reverse the negative impact of social stigma, which stigma causes psychological trauma for many prostitutes. Therefore, many prostitutes are excluded and marginalized for failing to adhere to state interests. Sadly, marginalized groups are part of sustaining the capitalism. Therefore, the Radical and ‘pro’ feminists are contradicting themselves, because they are supporting a system of inequality, where only a minority of ‘qualified’ prostitutes are included in society. Such groups should not even be called feminist, because feminism is supposed to be about gender equality.
Feminism in current times, influenced by Postmodernism, emphasizes the diversity of female experiences, yet the ‘pro’ and radical feminist views on prostitution ignore an open, multi-theoretical approach. It is no wonder that these feminist stances on prostitution laws have had problematic results for prostitutes themselves. Given that prostitution laws have not benefited the fate of most sex workers it becomes obvious that laws are more concerned with sustaining state power and interests. However, the complexity involved in prostitution makes it difficult to find an alternative law that will satisfy the needs of everyone. Yet the question remains: can law be more inclusive of all members of society when considering how law is a tool of marginalizing certain people? So while the framework of biopower helps us understand prostitution laws it doesn’t really give us a solution to challenge the hegemonic power. Many aspects of people’s lives are orientated toward neoliberal interests in most advanced capitalist nation-states. Therefore, it is difficult to challenge the power of state when the populations are compliant with the law. However, as an anthropologist it is the task to be critical and to educate others about making the familiar seem strange, whilst making the strange seem more familiar. As a postmodern feminist, it is important to be open to the ideas and theories of others. Rather than continue to marginalize others, one needs to think of ways that society can be more inclusive of so-called deviant groups.
Davey, Maureen & Kissil, Karni. (2010). The Prostitution Debate in Feminism: Current Trends, Policy and Clinical Issues Facing an Invisible Population.Journal of Feminist Family Therapy 22 (1), 1-21.
Farquhar Judith & Zhang Qicheng. (2005). Biopolitical Beijing: Pleasure, Sovereigntly, and Self-Cultivation in China’s Capital. Cultural Anthropology 20(3), 303-327.
Harley, David. (2005). Freedom is just another word. A Brief History of Neo-Liberalism. Oxford: Oxford University Press.
O’Doherty, Tamara. (2011). Criminalization and Off-Street Sex Work in Canada. Canadian Journal of Criminology and Criminal Justice, 217-245.
Schoular, Jane. (2010). What’s Law Got to do with It? How and Why Law Matters in the Regulation of Sex Work. Journal of Law and Society 37 (1), 12-39.