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Can This State Intervention Be Saved?

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In this thread, Bean suggests that the solution to the issues created by prostitution may be decriminalization but not legalization, and another commenter suggests a model that would make the purchase of sex but not the selling of sex illegal. To start with the question of whether state intervention is defensible even if one agrees with the ends:

  • To me, upholding traditional conceptions of sexual morality is not a valid reason for making prostitution, or any other sex work voluntarily engaged in by adults, illegal.
  • It is, however, legitimate for the state to protect sex workers the way it protects other workers.
  • With respect to the legitimate justification, the criminalization of prostitution is obviously a disaster. By creating strong disincentives for sex workers to seek protection from the state, it makes them more vulnerable to violence and particularly gross exploitation at the hands of both johns and pimps (the latter representing the informal authority that will inevitably fill the vacuum left by the state.)
  • Bean’s solution is preferable but also strikes me as problematic. It reduces the disincentives, which is good, but still leaves a significant disincentive in place, which is bad. Moreover, from a feminist perspective I just don’t see what good fining sex workers is supposed to accomplish; the same analysis that would make one concerned about the exploitation of women makes it very strange indeed to further punish women who sell sex (and given how likely these women are to be poor, the effect of fines is hardly trivial.)
  • We can get beyond this problem, however, by imposing fines only on people who purchase sex.

So that’s a potentially defensible solution. Do I support it?

I’m open to persuasion, but I would have to say no. This isn’t because I’m sanguine about the exploitation involved in sex work in this particular cultural context, and personally prostitution makes me especially uncomfortable. But I still think that the punishment of sex work involves some sort of claim about false consciousness. They key question is not whether sex work is often exploitative, but exploitative compared to what? Maybe there’s a reason why paying poor women to have sex is categorically worse than paying women to clean toilets for minimum wage, but this tends to be assumed rather than argued (and is often, I think, bad moralistic justification #1 being smuggled in behind good feminist justification #2.) In addition, the kind of worker-protecting regulations that become possible after legalization: restrictions on employers, informed consent requirements, health services/standards, etc. seem like a more narrowly tailored way of addressing the state’s legitimate concerns. At a minimum, in an ideal policy world we would try this before seeking to punish johns, and would avoid punishing sex workers at all.

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