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Equal Citizenship and Public ReasonA Feminist Political Liberalism$

Christie Hartley and Lori Watson

Print publication date: 2018

Print ISBN-13: 9780190683023

Published to Oxford Scholarship Online: September 2018

DOI: 10.1093/oso/9780190683023.001.0001

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Public Reason and Prostitution

Public Reason and Prostitution

(p.163) 7 Public Reason and Prostitution
Equal Citizenship and Public Reason

Christie Hartley

Oxford University Press

Abstract and Keywords

This chapter critically engages with the “sex work” approach to prostitution and argues that treating “sex work” like any other form of work is neither possible nor compatible with valuing the freedom and equality of women as citizens. Liberals often claim, erroneously, that liberalism’s commitment to a kind of neutrality among competing conceptions of the good life and its commitment to antipaternalism requires either decriminalization or legalization of prostitution. While arguments that rest on a particular conception of the “good” of sex or of the role of sex in a broader conception of the good are illegitimate grounds for state policy, it is argued that there are, nonetheless, good public reason arguments against decriminalization or legalization of prostitution. A defense of the Nordic model is offered.

Keywords:   prostitution, public reason, sex work, Nordic model, health and safety, sex trafficking, civil rights, sex equality, sex, decriminalization

Social inequality does not first exist in the abstract, in search of a basis or polarization or natural joint to carve or asymmetry to which to attach. It exists in the social reality of its particulars, such as the social dominance of men through which women are subjected. Sex equality as a norm comes into being through the resistance of women as a people to their subjection. The equality principle, in this approach, is properly comprised of the practical necessities for ending inequality in each of its real forms.

CATHARINE A. MACKINNON, Women’s Lives, Men’s Laws

I. Introduction

Up until now, we have been concerned to work out the details of a particular conception of public reason for political liberalism and to argue that our interpretation of political liberalism is also a feminist political liberalism.1 In the remainder of the book, we develop specific policy proposals for how our vision of a feminist political liberalism can address substantive issues of gender inequality that have endured in modern, liberal democracies and threaten to endure even in a politically liberal, well-ordered society. In so doing, we employ the substantive conception of free and equal citizenship that we argued is central to political liberalism. We give public reason arguments for our proposals that draw on that account. We want to show that our account of exclusive public reason does not burden or exclude feminist arguments in public reason, at least insofar as such arguments can be made by appealing to the conception of free and equal citizenship we think is central to political liberalism. In fact, such (p.164) a conception of free and equal citizenship provides powerful grounds for advocating for substantive sex equality.

Here we argue that arguments for legalization or decriminalization of prostitution should be rejected on sex equality grounds. We emphasize the centrality of the rights to bodily integrity and sexual autonomy on a basis of equality as central to citizenship. None of our arguments incorporates a view of sex or sexuality in a particular moralized sense; that is, we do not claim that sex itself is morally special or should be reserved for meaningful intimate relationships, nor do we adopt some similar conservative or partial view about how individuals should regard or value sex.

Feminist activists and scholars have long identified sexuality as a primary site of gender inequality and the subordination of women—whether through critiques of dominant forms of heterosexuality and its accompanying narratives of romance, or critiques of motherhood and its narratives of self-sacrifice, or critiques of ideals of sexual purity and sexual restraint that apply to ideals of femininity, or through critiques of legal and social norms effectively licensing rape, and much else having to do with the way that social and legal structures enact asymmetrical norms of sexuality that serve to subordinate women. However, even feminists remain deeply divided about the precise details of such critiques and, importantly, over the proper response to ending forms of sex-based subordination.

The contemporary debate among feminists over prostitution is a particular site of such contestation.2 One indication of the depth of division is the lack of agreement over what to even call the practices of buying and selling sex. Some advocate for referring to the practice historically known as “prostitution” as “sex work.” The arguments supporting the use of the terms “sex work” and “sex worker” are complex and varied, but they center around the claim that such work is not in itself oppressive and that the primary obstacles to equality for persons engaged in “sex work” concern social stigma and failure to treat “sex work” as work. In contrast, many feminists continue to use the term “prostitution” to refer to the institution of the buying and selling of sex, for it captures the exploitative and unequal nature of the practices central to their critique.3 Moreover, it includes (p.165) within it recognition of the fact that prostitution is a gendered practice—overwhelmingly, it is women in prostitution. Thus, there is no neutral term, no neutral starting point from which to begin a discussion of the institution of buying and selling sex, for to choose a term is to choose a side in the debate.

As our arguments will make clear, we favor an abolitionist model, in which the goal of state regulation is to end prostitution as we now know it. Thus, we will use the term “prostitution” rather than “sex work.”4 In addition, “sex work” is used much more broadly than is prostitution, for “sex work” refers to a range of activities, including pornography, stripping, and phone and webcam sex, and so on. We aim to consider only prostitution here, not the broader set of activities that fall under the umbrella of “sex work”.

A further challenge concerns what to call the people who sell sex.5 Advocates of legalization or decriminalization as well as some women active in prostitution insist on “sex worker” rather than “prostitute,” as they regard the use of “prostitute” as disrespectful and claim usage of that word denies the “agency” of women in prostitution. While it is no doubt a good idea, in general, to refer to persons by using the terms they prefer, there are important reasons to reject the term “sex worker” in discussions of systems of prostitution. First, though there are those who insist on this term, they do not represent all persons or women in prostitution. Moreover, the insistence on this term often comes from those active in prostitution or those making money from prostitution (the pimps and brothel owners). In contrast, women who have exited prostitution, in many cases, reject the term “sex worker” in favor of “prostitute” or (p.166) “prostituted persons.”6 Second, the use of “sex worker” already begs important questions, questions that this chapter aims to address, such as: Is so-called “sex work” just like other forms of work? Can persons who sell sex as a “job” enjoy the same kinds of worker health and safety protections other workers enjoy as basic human rights? Is it possible to apply standard employment law and other relevant civil rights laws where selling sex is the “job”? Third, after a full assessment of the arguments for legalization or decriminalization and direct engagement with the material reality of the lives of women in systems of prostitution, it is clear that prostitution is a system of gendered inequality; using the word “prostitute” rather than “sex worker” is central to keeping that fact at the forefront.7

As feminist political liberals, we hold that arguments that rest on a particular conception of the “good” of sex or of the role of sex in a broader conception of the good are illegitimate grounds for state policy. Political liberals must reject arguments that are grounded in claims about sexual chastity or purity or the unique and intrinsic value of sex in a particular account of the good life. Thus, in our view, only public reason arguments are acceptable arguments for consideration in whether and how to regulate the buying and selling of sex, as the issues raised by prostitution concern matters of basic justice. This means that arguments in favor of regulation or against such regulation must be such that they rest on political values and do not draw upon controversial and particular normative accounts of the value of sex or sexuality as such. Rather, public reason arguments require appealing to the interests of persons as free and equal citizens and offering an interpretation of what, in a particular case, freedom and equality necessitate. This interpretation of what liberalism demands has led many to think that the liberal position ought to be some form of legalization or decriminalization.8 We disagree.

We give a sex equality argument against decriminalization and legalization (often thought to be the quintessential liberal positions) and, instead, argue in favor of what is known as the “Nordic model”—understood broadly as a state policy that fully decriminalizes the selling of sex yet criminalizes the buying of sex while adopting substantive social supports (p.167) to enable persons in prostitution to exit prostitution.9 We craft our arguments drawing on a rich body of empirical data concerning different models of regulation and facts about the conditions of persons living in prostitution. In this sense, this entire argument is an exercise in nonideal theory. However, as many of our arguments concern the intrinsic features of prostitution, they equally apply in any politically liberal, well-ordered society. The normative basis for our arguments is the particular account of free and equal citizenship we have argued for thus far. We give what we take to be powerful public reason arguments both against legalization and full decriminalization and in favor of the Nordic model.

II. Some Basic Facts about Prostitution and Legal Approaches to It

Of course as with any complex social phenomenon and debates concerning state/legal policy addressing it, part of the dispute concerns just what the facts are, which ones are salient, and how to interpret them. This is true in debates about prostitution. However, there are some fairly uncontroversial facts and starting points that various positions within the debate acknowledge. First, it is nearly universally acknowledged that the primary reason persons enter into prostitution is extreme economic deprivation.10 Sometimes this is phrased in terms of economic necessity, sometimes in terms of survival. What is clear is that the overwhelming (p.168) majority of persons in prostitution enter into it as a means of “last resort” to secure some level of economic security and meet their or their family’s basic needs. Although there are rare exceptions, persons with a decent level of economic security don’t enter into prostitution. Second, the overwhelming majority of persons in prostitution are women and girl children. Moreover, women of color, First Nations women, and trans women, that is, women who are vulnerable across various axes of inequality, are overrepresented in prostitution.11 Third, women in prostitution are subject to an array of harms—violence, rape, and exposure to sexually transmitted diseases (STDs), to name the most prevalent.12 Fourth, the pathways into prostitution involve layers of vulnerability and inequality. For example, common pathways to prostitution include a history of childhood sexual abuse, homelessness, attempts to flee domestic abuse, recruitment or force by a male partner, the low status of women in some cultures, and, again, economic desperation.13

Less universally accepted is the claim that the criminalization of prostitution serves to make persons in prostitution worse off in nearly every respect,14 though among those who aim to improve the lives of women in prostitution, whatever their orientation toward legalization, (p.169) decriminalization, or the Nordic model, this claim is universally recognized. “Criminalization” refers to a system of state regulation in which both the buying and the selling of sex are illegal and subject to criminal penalties, whether fines or incarceration or both. Under criminalization regimes, women (the prostitutes) are arrested and jailed at a disproportionate rate relative to the buyers (the men).15 In addition, police corruption is pervasive: police extort, threaten, and coerce women in prostitution into giving them sexual access.16 Women in prostitution fear engagement with the police such that they are much less likely to report violence or rape or other forms of harassment to police, effectively leaving them without a basic resource for safety and security that other citizens enjoy.17 A criminal record follows women throughout their lives and limits other opportunities for employment should they decide to exit prostitution. Regimes of criminalization also function to undermine or limit access to stable and secure housing and health care.18 Women with convictions for prostitution are disadvantaged in child custody disputes.19 Moreover, they are doubly criminals if they fail to report and pay taxes.

Those who reject the arguments for criminalization as unsound or illiberal may be inclined to think that legalization is both philosophically and practically superior. Legalization involves removing all criminal sanctions connected with the practice of prostitution (for both buyers and sellers), but it also involves a system of state regulation. Often, it also involves permitting brothels as businesses. This moves beyond legally permitting the buying and selling of sex between individuals to allowing third parties to “exploit the prostitution” of others. Such a system of regulation includes the issuing of brothel licenses, the registration of prostitutes, setting legal age limits, and restricting “employment” from immigrants, for example.20 Legalization often includes additional regulations, such as zoning laws, the mandating of condom usage, and other so-called occupational health (p.170) and safety standards, including mandatory STD testing (but only for prostitutes, not johns).21

Arguments in favor of legalization appeal to various considerations, including the claim that state regulation will provide safe and uniform working conditions, reduce coercion, reduce violence, reduce criminally run brothels (associated with organized crime), as well as provide access to state resources such as health care and social security.22 Moreover, some advocates of legalization argue that reducing stigma associated with prostitution ought to be a central aim of any approach to prostitution; proponents of legalization often claim, though without any real evidence, that legalization will reduce the social stigma associated with prostitution.23 Of course, all of these considerations are consequentialist in that they appeal to increased utility for prostitutes themselves (and arguably by extension improved utility for the buyers). Beyond these consequentialist considerations, those in favor of legalization argue there simply are no good nonmoralistic reasons for criminalization, and they think that legalization is an improvement (reduces more harms) that mere decriminalization.24

Advocates of decriminalization argue for the removal of criminal laws concerning prostitution, but not necessarily adding terms for (legal) regulation. In practice, nation-states that have decriminalized prostitution accompany such legislation with various regulations rather than complete lack of regulation.25 Proponents of decriminalization include various sex worker advocacy groups and some human rights organizations, such as Amnesty International, as well as other political organizations, and of (p.171) course various academics.26 Those who advocate for decriminalization share the critique of criminalization discussed above but argue against legalization primarily on the grounds that it entails extensive state control over the women in prostitution in ways that deny them “autonomy” and “agency” and perpetuates a new set of distinct harms.

The shared premises among those who advocate for legalization and decriminalization include the claim that criminalization reflects an illicit moralism that should have no role in a liberal society and the claim that prostitution has always existed, and will always exist; thus they share the aim of developing an approach to prostitution that is claimed to reduce harms experienced by persons in prostitution. Such approaches are often referred to as “harm reduction models.”27 The key disagreement is over whether legalization or decriminalization is more effective as a model of harm reduction.

A distinct argument that presents itself as a sex equality approach to prostitution concludes that decriminalizing the selling of sex while criminalizing the buying of sex is the most effective means to combating the harms of prostitution while affirming the equality of women.28 This is known as the Nordic model. The Nordic model was first adopted in Sweden in 1999. It has since been adopted by Norway, Iceland, Northern Ireland, and France, and a similar kind of law was passed in Canada (in 2014). The European Parliament passed a resolution in 2014 recommending member states consider the Nordic model.29 The model is premised upon the claim that reducing or eliminating demand for commercial sex is essential to reducing or eliminating sexual exploitation (whether through (p.172) sex trafficking or prostitution) and securing the material conditions of free and equal citizenship for women.

It is framed as a sex equality approach because it begins its analysis by taking the fact of the gendered structure of prostitution, in which women are overwhelmingly the sellers and men the buyers (as part of a larger pattern of gender inequality), as central to the subsequent analysis of the inequalities that lead to and stem from prostitution as a social institution. Moreover, it is grounded in an intersectional analysis of these inequalities, recognizing that there is a hierarchy within prostitution itself. Women of color, First Nations women, trans women, and women in so-called third-world nations are both overrepresented in prostitution (and sex trafficking) and subordinated relative to others within prostitution (including earning less, having less negotiating power when it comes to condom usage, and having less mobility within the “profession”).30

From an empirically grounded analysis of the hierarchically gendered structure of systems of prostitution, the Nordic model was developed by asking: What legal approach is best suited to end such gendered inequality and bring about more gender equality? Thus, its orienting purpose is to address this specific form of gender inequality while simultaneously creating conditions to increase gender equality. In order to make the case that the Nordic model does this better than the alternatives (legalization or decriminalization), a thorough analysis of such alternatives is necessary. Advocates of the law have done this work. Here we provide additional arguments that support their conclusions, exposing the flaws and gender-unequal consequences of both legalization and decriminalization.

III. Public Reason and Prostitution

Any public reason argument will necessarily draw on a conception of free and equal citizenship in conjunction with a particular reasonable political conception of justice. We have not defended any particular reasonable political conception of justice, given that we aim to specify the commitments of political liberalism as compatible with a family of such conceptions. However, we have argued for a substantive interpretation of the reciprocity condition such that a commitment to substantive sex equality follows from (p.173) it and must be a part of any reasonable political conception of justice. The claims we defend are that reciprocity (a limiting condition on all reasonable political conceptions of justice) requires the elimination of pervasive social hierarchies that thwart the give and take of reasons among persons as free and equal citizens and securing the social conditions necessary for recognition respect. As we said in developing these ideas in chapter 6, this means the state has an obligation to eradicate practices of domination and subordination that interfere in the enjoyment of the status of free and equal citizenship on a basis of equality, and the state has an obligation to secure conditions of nondomination for groups that are subjected to hierarchical forms of inequality; this entails a substantive commitment to sex equality.31

Each of the positions we’ve been discussing—legalization, decriminalization, and the Nordic model— claims to emphasize the values of women’s sexual agency and sexual autonomy as a part of the basic rights of persons (as citizens). Each view interprets the demands of respecting such agency in different ways, of course. And each view frames itself in terms of equality as well, of course again, emphasizing different claims to equality as well as different interpretations of what equality demands. Each view emphasizes equal access to fair working conditions and opportunities as well as the basic entitlements of citizenship—fair compensation, protection from violence and basic security of the person, access to health care and other essential social services—though, again, each view differs on the means for securing these rights and goods for persons in prostitution. We will now turn to each view to reconstruct and evaluate its main claims.

As stated above, advocates of legalization aim to establish a legal framework of regulation that treats sex work as a form of work just like other forms of employment that are currently recognized. One journalist expresses the view this way:

There is a political usefulness in calling all of this “sex work,” while also insisting that it varies considerably over time and place. To do so is to insist that those who do sex work, in all of their workplaces and in varied conditions, deserve the rights and respect accorded to workers in any other industry.32

(p.174) And further, she criticizes those who object to calling prostitution, or other commercial sex acts, “sex work,” saying:

What sex work opponents actually have in mind when they cringe at the idea that sex work could be “a job like any other” is that sex work does not—and cannot—resemble their work. When anti–sex work crusaders think of “jobs,” they’re thinking of their more respected labor administering social projects, conducting research and lobbying. To consider sex work to be on the same level as that work breaks down the divisions that elevate some forms of labor while denigrating others.33

Views like this are often invoked to support arguments for legalization.

A central question any system of legalization has to confront is whether to permit pimping—that is, whether it is going to not just allow the selling of sex but also allow persons to profit from others’ selling sex. Though, of course, in legalization regimes “pimps” are transformed into “business owners.” In the Netherlands, this was accomplished when the brothel ban was lifted in 2000. (Interestingly, this legislation was called “lifting the ban on exploiting the prostitution of others.”)34 In all places in which prostitution is currently legal, brothels are also permitted (thus, pimping is permitted). This raises a second central question: whether persons in prostitution are properly understood as employees, in the common legal sense of the term. It is worth noting that nowhere prostitution is legal are prostitutes treated, legally, as employees just like other employees. One primary reason for this is establishing an employee-employer relationship between brothel owners and prostitutes is recognized to cede unacceptable control to brothel owners and thus restrict the sexual autonomy of prostitutes.35 For example, a conventional employee-employer relationship could undermine the right of prostitutes to refuse particular clients, to set their own prices and negotiate directly with clients, and to negotiate particular sex acts. In addition, legalization as such comes with mandated health screenings and surveillance of sex workers’ bodies in ways that sex (p.175) workers themselves object to as invasive, punitive, and premised upon the belief that prostitutes are vectors of disease in need of control. Notably, there is no symmetrical screening and surveillance of buyers’ bodies.

There are further problems with the conventional employee-employer model that haven’t been adequately recognized by advocates of legalization. One central claim among such advocates is that “sex work is work” like any other kind of work and should be subject to the same regulations. However, this simply isn’t possible.36 The German government acknowledges this explicitly, even though many advocates of legalization refuse to similarly conceded that sex work cannot be treated just like any other job. A governmental report stated, “However, prostitution was not to become a ‘job like any other.’ The employer’s right to issue instructions was largely restricted in favour of prostitutes’ right to sexual self-determination. No prostitute is to be obliged to serve a particular client or to engage in certain sexual practices against her will.”37 This is a crucial concession and serves our argument: sex cannot be treated like any other job without removing prostitutes’ right to sexual autonomy and bodily integrity. Thus, an exception, at least, must be made for a right to refusal. (Though, this is not enough to support systems of legalization.) However, what this concession does show is that sex is distinct, different, and perhaps unique—not because of a moralized conception of sex or sexuality but because of the centrality of the right to bodily integrity.

As Watson has argued elsewhere, various laws and regulations that we think are justified in employment contexts simply cannot be enforced in the context of prostitution.38 For example, occupational health and safety standards developed for occupations (primarily medical or research work) in which employees are at risk for exposure to blood-borne pathogens or infectious diseases are extremely demanding, as they should be, and place worker safety at the center of regulation development. Such regulations, supported by nation-state-specific legislation as well as international human rights instruments, require personal protection equipment such (p.176) as gloves, face shields, and in some cases full body coverage.39 Obviously, such safety equipment is compatible with performing the tasks central to doing the job in these contexts, unlike in commercial sex. However, a limit on what kinds of tasks are permissible in such contexts includes adherence to safety practices. While “sex workers” (in prostitution) have developed their own occupational health and safety manuals and these have impacted legislation, many of their standards are mere recommendations. (For example, the New Zealand OHS guide for “the sex industry” recommends that “workers doing outcalls should carry a small torch [flashlight] to be used in the event of there being unsatisfactory lighting for a thorough examination of a client in the client’s home, hotel room, car, etc.,” and “checking the client for visible signs of sexually transmissible infections is strongly advised.”) The only substantive requirement to emerge is the requirement of condom usage.40 Aside from the fact that this requirement is often violated,41 condoms simply do not offer sufficient protection from infectious diseases, whether primarily sexual or not, nor do they address other health and safety concerns common in prostitution. Pregnancy, rape, and violence are all “occupational hazards” in prostitution. Other common threats to health and safety in sex work include repetitive stress injuries especially to the genitals and anus, bladder infections, chronic cystitis, and (p.177) kidney infections.42 In addition, female sex workers are at increased risk of cervical dysplasia and cervical cancer.43 HPV, the cause of cervical cancer, cannot be prevented with condom use alone. (The vaccine is effective for some strains of HPV, but not all, and not all cancer-causing strains.) All of these facts document exposure to known risks and dangers to health and safety; they are intrinsic to the job and are not minimal. It simply is not possible to develop sufficient regulations to meet occupational health and safety standards applicable to all other areas of employment (where the requirement is that working conditions eliminate “all known risks”) and permit the acts essential to prostitution.44

This is true in other areas of the law as well, such as sexual harassment and civil rights. In brief, sexual harassment laws as they now stand are simply incompatible with prostitution. Central to sexual harassment law is the claim that employer’s demands for sex in exchange for benefits is incompatible with women’s equality. Sex as a condition of employment is a form of sex discrimination under current U.S. law.45 Thus, either a (p.178) carve-out (exemption) will be required to square selling sex with current law or both a carve-out for current law and new legislation that aims to define sexual harassment in this specific context—where sex is a condition of employment—would be required. In either case, women in prostitution will not have full access to the power and protection of sexual harassment law on a basis of equality with other workers.46

Reflection about enforcing civil rights laws prohibiting discrimination in public services produces the counterintuitive result that such laws protect prospective clients and not women in prostitution. This is true whether prostitutes are considered employees or independent contractors—for both are required to abide by antidiscrimination laws. Refusing service to a member of a protected group on grounds of age, race, disability status, and even sex is a civil rights violation. Perhaps an exception could be written into the law for sex. (For, perhaps, allowing persons in prostitution to deny service to same-sex customers seems different from allowing them to deny “services” to other groups?) Though it isn’t obvious that any clear and defensible line can be drawn between sex status and other groups protected by discrimination law (unless one conflates one’s actual sexual preferences, for heterosexual sex, with one’s “job” description, but under the arguments for sex work, why should we do that?). In any case, the point here is that supposing, for example, any particular prostitute simply wanted to exclude persons over the age of 65 from her “services,” this would actually violate the civil rights of the person being denied “service.”

This highlights a critical tension between treating sex work as work like any other form of work and securing the rights to bodily integrity and sexual autonomy and of persons engaged in such work. Prostitutes themselves advocate for the importance of sexual autonomy and agency in the (p.179) course of their work—which includes the right to refuse anyone, at any time, for any reason.47

Moreover, reconciling civil rights protections for persons with disabilities and securing sexual autonomy for sex workers presents a distinct set of challenges. Persons with HIV-positive status, both as potential clients and as workers, are protected under the Americans with Disabilities Act; discrimination against such persons as seekers of services and as employees is prohibited. This raises the question of whether prostitutes could, consistent with the ADA, refuse sexual services to an HIV-positive client or forbid HIV-positive persons from selling sex. The full argument for this claim is complex. Elsewhere Watson argues:

If this sounds far fetched, consider that persons with disabilities, including STIs [sexually transmitted infections], are covered under the Americans with Disabilities Act (ADA) and that the standard for refusal of service as explained by the Department of Justice is: “In almost every instance, the answer to this question is no. Persons with disabilities may be excluded from the activities or services of a private or public entity because of a health concern only if they pose a significant risk to the health or safety of others, known as a ‘direct threat,’ that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the entity’s policies, practices, or procedures. The determination that a person poses a significant risk to the health or safety of others may not be based on generalizations or stereotypes about a particular disability; it must be based on an individualized assessment of the person with the disability that relies on current medical evidence.” All the arguments in favor of the legalization of sex work rely on the claim that the risks of contracting an STI can be reduced to an acceptable level so as to protect worker health and safety. If we accept these latter arguments, then there seems to be no justification for singling out HIV positive persons, either as clients or “workers” for exclusion.48

(p.180) Again, perhaps such reconciliation may develop, but it at least will require treating prostitutes differently from other workers, creating exceptions in the law, and arguably such exemptions will deny persons in prostitution equal protection and rights as compared with other sound worker protections.

Thus, given the nature of the work (in prostitution), our arguments force the following conclusion: so-called “sex work” isn’t like other forms of work, and indeed there is something unique about sex (and not in a moralized sense that is objectionable) that should inform how we think about what state regulations (if any) are appropriate to the buying and selling of sex.

What is unique about sex is that exercising control over the conditions, manner, and persons with whom one has sex is central to one’s ability to maintain one’s bodily integrity. Securing the conditions for control over one’s bodily integrity is necessarily prior to, and required for, the exercise and enjoyment of any other rights. Places in which prostitution is legalized do, indeed, have exemptions, exceptions, and carve-outs that treat prostitution as different from other kinds of work. Such exceptions generally written into the law include the legal right to refuse sex with any particular client, though the ability to actually exercise this right in brothel conditions is another matter. Advocates of legalization may celebrate these kinds of exemptions, but supporting them just underscores that prostitution (“sex work,” in their terms) is not a job like any other. That is an indefensible position. But these exceptions are not enough to secure equal working conditions for women in prostitution, for they require exempting women in prostitution from worker protections designed for the purposes of securing equality in the workplace.

One might think that a system of legalization in which women in prostitution are treated as independent contractors would resolve many of the issues we have raised for an employee-employer model of “sex work”, for unlike an employee-employer relationship, independent contractors have greater autonomy in at least one sense: they have more direct control over their working conditions. Yet many of the same problems remain: the arguments we have given concerning occupational health and safety standards, sexual harassment law, and civil rights all apply equally where persons are independent contractors. In sum, it seems clear that a system of legalization simply cannot secure sexual autonomy, rights to security of the body and bodily integrity, and equality (as compared with the protections other citizens enjoy as workers).

(p.181) Perhaps decriminalization will fare better. Current regimes of decriminalization do not adopt a completely laissez-faire attitude toward prostitution. Many of the regulations present in nation-states that legalize prostitution are similarly present in nation-states that decriminalize it. For example, New South Wales (Australia) and New Zealand both decriminalized prostitution (in 1979 and 2003, respectively), yet both have laws that specifically regulate the industry. New South Wales has minimal regulation,49 whereas New Zealand has much more extensive regulations, including the licensing of brothels and health and safety requirements.50 Of course, this is the result of political compromise. Arguments for decriminalization have been successful only where advocates promised to address sex trafficking and concerns about public health. Advocates of quasi-legalization (decriminalization with some regulations) will face the same set of objections just raised against legalization concerning their ability to secure both the sexual autonomy of women in prostitution as well as the conditions under which they have the ability to maintain their bodily integrity and equality with other legally recognized forms of work.

Beyond these arguments that aim to show the legal inconsistencies and tensions in legalization and decriminalization, the practical realities show that because of their unequal, subordinated social status, women in prostitution are unable to exercise and enjoy the purported protections that advocates of legalization or decriminalization claim to offer. For example, even in legalization regimes, nonlegal forms of prostitution flourish alongside legal forms, and the most vulnerable women are locked into the nonlegal forms.51 Pimps persist (pimps as third parties to whom prostitutes make payments, as distinct from brothel owners).52 Central employment protections are not available in practice, leaving women in (p.182) prostitution vulnerable. Exit is difficult.53 Ability to refuse in practice is minimal. Coercion into prostitution continues. A Netherlands report five years after the lift of the brothel ban concludes, “The extent of emotional well-being has declined between 2001 and 2006 with regard to all measured aspects. This matches the finding that the extent of distress has become higher, and the use of sedatives has increased.”54 Working conditions have not improved in Germany and the Netherlands, according to governmental reports.55 And as the Netherlands report notes, legalization has done nothing to improve the asymmetries of power that prostitutes face; employers have significant power, and given that the work is done in private, there are “more opportunities for abuse of power” than in other work contexts.56

For all the reasons given above, neither legalization nor decriminalization (in which both the buyers and the sellers are equally decriminalized) is compatible with securing the freedom and equality of persons in prostitution as equal citizens. In addition, both legalization and decriminalization leave demand unaddressed. In so doing, they fail to address the primary mechanism that drives supply—the supply of women—which is demand. Moreover, legalizing or decriminalizing prostitution without creating meaningful opportunities for alternative options to earn a decent living ensures that those without such options will continue to find prostitution their best option.

(p.183) Thus far in our argument, we have considered prostitution independently from sex trafficking. Of course, strictly speaking as concepts, they are distinct. As a practical matter, they are intimately related and often indistinguishable.57 The UN Special Rapporteur on Trafficking in Persons makes this point: “For the most part, prostitution as actually practiced in the world usually does satisfy the elements of trafficking.”58 Catharine MacKinnon has also provided powerful evidence and arguments that, as a practical matter, the conditions under which women enter into and remain in prostitution (severe and pervasive sex inequality) satisfy the elements of sex trafficking (notably “sexual exploitation through abuse of power or as condition of vulnerability”).59

This reality is often elided in discussions of prostitution, where prostitution is usually characterized as the selling of sex on a voluntary basis. Sex trafficking, in contrast, is usually thought to involve the force, fraud, or coercion of persons into selling sex. Many people think that sex trafficking involves movement of persons for purposes of prostitution (movement across international or national borders).60 However, this isn’t a part of legal definitions of sex trafficking. Though legal definitions vary somewhat, they all basically coalesce around the exploitation of persons for prostitution through force, fraud, or coercion.61

(p.184) There is vast empirical evidence that where prostitution (defined as a voluntary selling of sex) is either legalized or decriminalized, sex trafficking (force, fraud, or coercion) flourishes and grows. In turn, demand grows. And in turn, more trafficking occurs to supply the demand. Niklas Jakobsson and Andreas Kotsdam analyzed the relationship between nation-state laws (in Europe) concerning prostitution and sex trafficking. They “find that trafficking of women for commercial exploitation is least prevalent in countries where prostitution is illegal, most prevalent in countries where prostitution is legalized, and in between in those countries where prostitution is legal but procuring is illegal.”62 Additionally, as a briefing paper for the European Parliament emphasizes, “several studies made in recent years suggest, indeed, that the legislation on prostitution [discussing legalization in Germany and the Netherlands] increases the flow of trafficking for sexual exploitation, while the working conditions of prostitutes and the level of violence have not improved—according to government reports.”63 And even more, in a paper analyzing 150 countries, the authors conclude, “On average, countries where prostitution is legal experience larger reported human trafficking inflows.”64

Thus, effective strategies for addressing the potential for exploitation in prostitution and trafficking for purposes of sexual exploitation must address demand. In assessing the Nordic model, the EU briefing paper notes that it “seems to have effectively reduced demand and deterred traffickers.”65 Similar conclusions are drawn in other studies.66 The Swedish government report assessing the model 10 years after the passage (p.185) of the new law that criminalizes the buying but not the selling of sex, concludes:

Since the introduction of the ban on the purchase of sexual services, street prostitution in Sweden has been reduced by half. This reduction may be considered to be a direct result of the criminalization of sex purchases. In a comparison, we have noted that the prevalence of street prostitution was about the same in the three capital cities of Norway, Denmark and Sweden before the ban on the purchase of sexual services was introduced here, but the number of women in street prostitution in both Norway and Denmark subsequently increased dramatically. In 2008, the number of people in street prostitution in both Norway and Denmark was estimated to be three times higher than in Sweden. In light of the great economic and social similarities that exist among these three countries, it is reasonable to assume that the reduction in street prostitution in Sweden is a direct result of criminalization.

In the last five years, Internet prostitution has increased in Sweden, Denmark and Norway. However, the scale of this form of prostitution is more extensive in our neighboring countries, and there is nothing to indicate that a greater increase in prostitution over the Internet has occurred in Sweden than in these comparable countries. This indicates that the ban has not led to a change in arenas, that is, from street prostitution to the Internet, in Sweden. In light of this it should be possible to conclude that the reduction of street prostitution by half that took place in Sweden represents a real reduction in prostitution here and that this reduction is also mainly a result of the criminalization of sex purchases.

There is nothing to indicate that the prevalence of indoor prostitution that is not marketed through advertisements in magazines and on the Internet, for instance, prostitution in massage parlors, sex clubs and hotels, and in restaurant and nightclub settings, has increased in recent years. Nor is there any information that suggests that prostitutes formerly exploited on the streets are now involved in indoor prostitution.67

(p.186) Moreover, the report cites evidence of a shift in attitudes among persons about buying sex, and similarly a shift in demand—the target of the legislation.68

Because the Nordic model was developed by making the gendered structure of prostitution and trafficking central to its analysis, it starts with the acknowledgment that women are overwhelmingly the persons in prostitution (the sellers) and that men are overwhelmingly the buyers (and pimps). Moreover, it begins with the acknowledgment that this fact is both a result of inequality and a cause of further inequality. Thus, as explained earlier, it is a sex equality approach to prostitution. Its advocates recognize that decriminalization of the sellers (the women) is, under current conditions, the most equal approach (for as we noted above, criminalization disproportionately harms women in prostitution and legalization does not improve their overall conditions comparatively). However, its advocates argue that continued criminalization of the men (the buyers and pimps) is essential to promoting sex equality, for this is the most effective means to demand reduction, without which inequality and exploitation flourish. In addition, state support for exit is essential to the model; advocates recognize that without meaningful and robust alternatives to prostitution, women will continue to be disproportionately trapped in systems of prostitution. Such state support for exit should be very robust—perhaps even more robust than they are currently in nation-states with the Nordic model.

Contrary to many criticisms of feminist opposition to legalized or fully decriminalized prostitution, the Nordic model does not draw on or incorporate a view of sex or sexuality in a particular moralized sense; that is, it does not claim that sex itself is morally special or should be reserved for (p.187) meaningful intimate relationships, nor does it adopt some similar conservative or partial view about how individuals should value sex. Rather, it rests on a view about the substantive demands of sex-equal citizenship, in which gender-based hierarchies that shape women’s life prospects in employment, health, basic safety of the person, and the enjoyment of equal standing with their co-citizens are simply intolerable. Thus, it is a public reason argument.

Arguments for the decriminalization or legalization of “sex work” are often thought to be the quintessential liberal positions. One thought that permeates this argument is that there is no nonmoralistic argument for restricting or prohibiting markets in sex among adults. That is, some think that any argument that aims to restrict or eliminate markets in sex among “consenting” adults must be premised on a moralized view about sex (such as that it is always wrong to sell sex because there is something special about sex, as opposed to selling, say, nonsexual labor). Another thought that permeates many liberal reflections on legalization is that prohibition is a form of paternalism that is unacceptable in liberal states committed to the view that the state should allow individuals to engage in harmful behavior when those harms are primarily borne by the individuals involved.69

Generally, liberals accept arguments for state regulation and enforcement of the kinds of worker health and safety regulations demanded by human rights instruments cited above on the grounds that they promote the twin liberal values of freedom and equality. The work relation—the employee-employer relation—is an unequal relationship; employers have significantly more power, and individual employees alone lack sufficient power to negotiate fair and just conditions of work. Labor unions (even “sex worker” unions) are premised upon the recognition of the fact that collective bargaining is one way to ensure greater equality in the employee-employer relationship.70 Government regulations that set minimum standards for fair terms of employment are another way to collectively address the power imbalance between employers and employees. What we have tried to show here is that the values of securing worker health, (p.188) safety, and rights to sexual autonomy and bodily integrity on a basis of equality with other forms of work are not achievable under a legalization (or decriminalization) regime.

A commitment to sex equality requires securing the conditions for women to enjoy and exercise the full rights of citizenship on a basis of equality. Legalization or full decriminalization of prostitution is not compatible with the realization of sex equality either in conceptualization or in actual practice. Rather, as we have argued here, the Nordic model is the best approach to prostitution for women and for those committed to making sex equality real.


(1) As noted in the preface, Watson is the sole author of this chapter, although Hartley provided enormously helpful feedback, far beyond what one would hope for from a colleague simply giving feedback. Conversations with Catharine MacKinnon have greatly improved this chapter; she pressed, objected, and demanded clarity over and over again. In addition, Elizabeth Barnes, Susan Brison, Craig Agule, Carol Hay, and Blain Neufeld generously provided comments and criticism. Any confusions or mistakes that remain are entirely my own.

(2) For a survey of various feminist approaches to prostitution, see Spector, Prostitution and Pornography.

(4) In other contexts, Watson has used “sex work” to critique the practice of the buying and selling of sex. In those contexts, Watson aimed to directly address arguments offered by advocates of legalization and decriminalization where using their terms was central to the argument. See Watson, “Why Sex Work Isn’t Work.”

(5) As noted in the Swedish Institute’s “Selected Extracts of the Swedish Government Report,” “What to call persons who are involved in prostitution is a sensitive issue. The report uses the term sex buyer and the expression to buy sex. On the other hand, the terms sex seller and to sell sex were avoided because they give the impression that prostitution is a business transaction between two equal parties, a scenario that, according to the report, very rarely corresponds to reality. At times, the report uses the word prostitute to designate the person who is exploited sexually. However, the phrases person who is exploited in prostitution and person with experience of prostitution also occur in the text. Regardless of the choice of words, it is important to stress that this is not about what the persons involved are but rather what they do” (p. 3).

(6) See, e.g., Moran, Paid For.

(7) Of course the reader will have to wait for the arguments that support that conclusion; nonetheless, we do think our arguments bear out this claim.

(8) See, e.g., Nussbaum, “Whether from Reason or Prejudice.”

(9) A brief description of the Nordic model as a sex equality model can be found on Equality Now’s website. MacKinnon pioneered a full defense of the Nordic model as a sex equality model, as she developed the legal model. See her early formulation of the central ideas in “Prostitution and Civil Rights,” in Women’s Lives, Men’s Laws, pp. 151–161; and her most recent and developed defense, “Trafficking, Prostitution, and Inequality.”

(10) A variety of sources confirm this, across a range of perspectives on whether prostitution should be legalized, decriminalized, or criminalized in some form. See, for example, a study conducted by the Policy Department on Citizen’s Rights and Constitutional Affairs for the European Parliament, “Sexual Exploitation and Prostitution and Its Impact on Gender Equality.” See also Thukral, Ditmore, and Murphy, “Behind Closed Doors,” citing “financial vulnerability” and “economic deprivation” as the overwhelming reason for entry into prostitution in a study of “indoor” sex work in New York City (p. 10); see also All-Party Parliamentary Group on Prostitution and the Global Sex Trade, “Shifting the Burden,” citing “poverty” as the primary reason for entry into prostitution for 74% of indoor workers (p. 31). Other routes into prostitution cited by the report include experience of sexual abuse as a child, drug and alcohol abuse, and being in the foster care system as a female child. The authors conclude, “More often than not, prostitution is entered out of desperation arising from a number of situation-specific factors” (p. 33).

(12) This is acknowledged by nation-states in which prostitution is legal or decriminalized, as is documented by their health and safety manuals. It is also a central theme of those who organize as “sex workers” and produce their own health and safety manuals. See, for example, Akers and Evans, Occupational Health and Safety Handbook, published by St. James Infirmary. St. James Infirmary “is an Occupational Safety & Health Clinic for Sex Workers founded by activists from COYOTE (Call Off Your Old Tired Ethics) and the Exotic Dancers Alliance in collaboration with the STD Prevention and Control Section of the San Francisco Department of Public Health.” In addition, in Germany, where prostitution is legal, a governmental report states, “For example, one cannot ignore the empirical findings that show that those working in this industry are subject to considerable, empirically verifiable, psychological and physical threats. Prostitution is generally a physically and psychologically demanding, risky and dangerous business in which particularly vulnerable groups frequently engage. This was confirmed by a survey of a subpopulation of prostitutes during a study into the situation, safety and health of women in Germany that was commissioned by the Federal Ministry of Family Affairs, Senior Citizens, Women and Youth. This group suffered considerably more childhood violence, sexual violence, violence in relationships and violence in the workplace” (Germany, Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, “Report by the Federal Government,” p. 11).

(13) See, e.g., Leidholdt, “Prostitution and Trafficking in Women,” p. 171; MacKinnon, “Trafficking, Prostitution, and Inequality,” pp. 276–281.

(14) MacKinnon, Sex Equality, pp. 1553–1554.

(15) MacKinnon, Sex Equality, pp. 1553–1554.

(16) MacKinnon, Sex Equality, pp. 1553–1554.

(17) MacKinnon, Sex Equality, pp. 1553–1554. See also “Statement on Prostitution and Human Rights,” in Pheterson, A Vindication of the Rights of Whores, p. 105.

(18) See Matthews et al., Exiting Prostitution.

(22) The Netherlands is prime example. However, in their own governmental report, issued five years after the lift of the brothel ban, they conclude the situation of women in prostitution is worse than it was prior to the lift. See Netherlands, Scientific Research and Documentation Center, “Prostitution in the Netherlands.”

(23) One might observe that while stripping and pornography have long been legal in the United States, the mere fact of their being legal doesn’t seem to have reduced the social stigma of persons engaged in pornography or stripping, though it does seem to have reduced the stigma directed at consumers.

(25) Barnett and Casavant, “Prostitution,” pp. 4–9, as for example in Australia and New Zealand. See also New Zealand Parliamentary Counsel Office, Prostitution Reform Act.

(26) Amnesty International, “Amnesty International Publishes Policy and Research.” “Movement activists generally do not support legalization that allows state oversight and licensing of workers. Regulation, they believe, would not benefit workers and could harshly punish those who refuse to be ‘pimped’ by the state. Historically, official supervision has imposed mandatory health inspections on workers (but not on clients) and usually designated prostitution zones controlled by the police” (Chateauvert, Sex Workers Unite, p. 4). See also Shrage, “Prostitution and the Case for Decriminalization.”

(27) For a discussion of harm reduction models and arguments, see Matthews, Prostitution, Politics and Policy, pp. 83–88; Weitzer, Legalizing Prostitution, especially chapter 4, pp. 72–101; Chateauvert, Sex Workers Unite, p. 17 (where harm reduction is framed as a human rights approach).

(29) See European Parliament, “European Parliament Resolution.”

(31) See chapter 6.

(34) My emphasis.

(35) See Netherlands, Scientific Research and Documentation Center, “Prostitution in the Netherlands”; Barnett and Casavant, “Prostitution”; and Germany, Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, “Report by the Federal Government.”

(36) Germany, Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, “Report by the Federal Government,” p. 9.

(37) Germany, Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, “Report by the Federal Government,” p. 9.

(39) The International Labor Organization, “C155: Occupational Health and Safety Convention,” states, “1. Employers shall be required to ensure that, so far as is reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health. 2. Employers shall be required to ensure that, so far as is reasonably practicable, the chemical, physical and biological substances and agents under their control are without risk to health when the appropriate measures of protection are taken. 3. Employers shall be required to provide, where necessary, adequate protective clothing and protective equipment to prevent, so far as is reasonably practicable, risk of accidents or of adverse effects on health” (Article 6, my emphasis). Nation-state-specific interpretations of these human rights vary. For example, in New Zealand, where prostitution is decriminalized, Occupational Health and Safety Standards require that “all workers, no matter what industry they work in, have the right not to suffer harm through carrying out normal requirements of their work” (New Zealand Department of Labour, Occupational Safety and Health Service, “A Guide,” p. 17). And, in the United States, the U.S. Department of Labor, Occupational Health and Safety Act of 1970, says, “The law requires employers to provide their employees with working conditions that are free of known dangers” (italics are ours for emphasis).

(40) New Zealand Department of Labour, Occupational Safety and Health Service, “A Guide,” p. 21.

(41) New Zealand Department of Labour, Occupational Safety and Health Service, “A Guide,” p. 37, notes, “Unfortunately, incidents occur where workers are force by clients to have sex without a condom against their will (i.e., rape).”

(42) New Zealand Department of Labour, Occupational Safety and Health Service, “A Guide,” discusses repetitive stress injuries and advises sex workers to change positions or activities in order to avoid them (p. 41).

(44) Of course there are other “dangerous jobs” that entail various risks. As noted in Watson, “Why Sex Work Isn’t Work,” “According to the National Bureau of Labor Statistics report on fatal job injuries in 2011, fishers and logging are the most dangerous jobs in the U.S. (as measured by fatalities). In 2011, the fatal injury rates of fishers (127.3) and loggers (104.0) were approximately 25 times higher than the national fatal occupational injury rate of 3.5 per 100,000 full-time equivalent workers. Pilots, farmers, roofers, and drivers/sales workers and truck drivers also had fatal injury rates that exceeded the all-worker rate of 3.5 fatal occupational injuries per 100,000 full-time equivalent workers.” See Pegula and Janocha, “Death on the Job.” By contrast, the death rate of women in prostitution is 40 times higher than of women not in prostitution. In a study of women in prostitution in Colorado, researchers calculated a crude morality rate of 391 per 100,000 and a homicide rate among active “prostitutes” as 229 per 100,000. See Potterat et al., “Mortality in a Long-Term Open Cohort of Prostitute Women.” Based on this study, the death rate of women in prostitution is just over three times higher than that of fishers, and nearly four times higher than that of loggers, the two most dangerous jobs in the United States (fn15). However, the inherent risk in prostitution of violation of bodily integrity as a part of the job distinguishes it from even other very risky occupations.

(45) After extensive research, we could find no example of a sexual harassment suit in the context of prostitution in Nevada. This is likely a result of the fact that sex workers in Nevada brothels are required to sign a contract that includes various clauses aiming to protect the brothel owners from litigation. For example, such contracts include a statement that there is no employment relationship (such workers are “independent contractors”); they include an indemnification clause (prohibiting sex workers from holding brothels liable for virtually any harms they may suffer in the context of sex work); and they include an agreement to arbitration clause (waiving of right to jury trial/agreement to arbitration: arbitration is “final” and “binding” upon parties and “sole and exclusive remedy of the parties”). And “independent contractor hereby agrees and acknowledges that by submitting to arbitration, she is waiving her right to a jury trial.” This ensures privacy/confidentiality, which is important to the brothels and to their advantage. Dennis Hoff (famous pimp-owner of many brothels in Nevada) sued one of the sex workers (“Jimi Lynn”) for failure to abide by the gifts clause in her contract (where workers are required to pay the brothel 50% of the cash value of any gifts), and in the course of that litigation her contract was leaked. See Barrett Enterprises Group, “Moonlite Bunny Ranch.”

(47) Such a right is formally written into the law in the Netherlands, Germany, and New Zealand, although ample evidence, as documented in the text, shows such a right is merely formal.

(49) In New South Wales, brothels are legal but subject to council planning approval. Escorts are unregulated, and street prostitution is permitted with some restrictions, such as that it must not be done near schools, churches, and hospitals. Presently, New South Wales is considering legislation to expand regulation. See NSW Parliamentary Research Service, “Brothel Regulation in NSW.”

(50) New Zealand Parliamentary Counsel Office, Prostitution Reform Act.

(51) Netherlands, Scientific Research and Documentation Center, “Prostitution in the Netherlands.”

(52) Netherlands, Scientific Research and Documentation Center, “Prostitution in the Netherlands.”

(53) “When prostitutes make the decision to leave prostitution they often find themselves confronted by a multitude of problems. Along with financial and/or family problems, health problems linked to prostitution and stress from violence, in some cases experienced early in life, nearly half of those wanting to leave prostitution find themselves in a situation that is further compounded by the fact that they have little school education or vocational training. The preconditions for leaving the profession are not favourable” (Germany, Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, “Report by the Federal Government,” p. 33).

(54) Netherlands, Scientific Research and Documentation Center, “Prostitution in the Netherlands.”

(55) “However, all in all, the results of the empirical study show that only little has been done up until now to improve working conditions. . . . Since those operating brothel-like establishments make business decisions like other traders or businessmen/women based on business management criteria, it is not surprising that working conditions are not improved unless they also fulfill the economic interests of the operator” (Germany, Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, “Report by the Federal Government,” p. 63).

(56) Netherlands, Scientific Research and Documentation Center, “Prostitution in the Netherlands.”

(57) According to the European Parliament briefing paper “European Parliament Resolution,” “The most conservative official statistics suggest that 1 in 7 prostitutes in Europe are victims of trafficking, while some Member States estimated that between 60% and 90% of those in their respective national prostitution markets have been trafficked. Moreover, the data available confirm that most trafficking in Europe is for the purposes of sexual exploitation, principally of women and girls.”

(58) European Parliament, “European Parliament Resolution.”

(60) As MacKinnon makes clear, “Movement across jurisdictional lines is not, and has not been, an element of the international definition of trafficking since at least 1949” (“Trafficking, Prostitution, and Inequality,” p. 299).

(61) The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, the “Palermo Protocol,” defines trafficking: “ ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” The U.S. Congress, Victims of Trafficking and Violence Protection Act offers the following definition of “severe trafficking”: “A commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age.” Interestingly, trafficking (as opposed to severe trafficking) is defined as “sex trafficking”: “the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.” Thus, as legally defined, all users of prostitutes are sex traffickers, though not of the severe kind distinguished above.

(63) See European Parliament, Directorate-General for Internal Policies, “Sexual Exploitation and Prostitution.”

(65) See European Parliament, “European Parliament Resolution.”

(66) See European Parliament, “European Parliament Resolution.”

(67) An English translation of the key findings of the report describes the methodology of the committee tasked with evaluating the effects of the new law (Nordic model): “With regard to the application of the ban, the committee examined reports of crime and sentences in order to determine how the ban has been applied in practice by the police, prosecutors and courts. As to the matter of the effects of the ban, the inquiry compared the incidence and forms of prostitution in Sweden today with circumstances prior to the ban’s introduction. In addition, it compared the circumstances in Sweden with those in five other comparable countries—Norway, Denmark, Finland, Iceland and the Netherlands” (Swedish Institute, “Selected Extracts”).

(68) The report states, “This means that a change has occurred in attitudes toward purchasing sexual services, which coincides with its criminalization. This change in attitude must be interpreted in such a way that the ban itself has had a normative effect, and that this can be expected to last, considering that the support is greatest among the young” (Swedish Institute, “Selected Extracts”).

(69) For an argument that some forms of prohibition are both paternalistic and nonetheless justifiable by liberal principles, see de Marneffe, Liberalism and Prostitution.

(70) Although it is worth noting that brothel owners and pimps in fact run many sex worker unions and collectives. See Farley, “Bad for the Body,” pp. 1091–1092.