Applying a gender equality standard to the regulation of prostitution

Barbara Havelkov

THIS IS A DRAFT! - Please do not distribute and do not cite without the authors permission - Part I and II are the more or less finished parts of the paper, but are largely descriptive accounts of the regulatory regimes and the feminist debates; unless youre particularly interested, you can skip them - Introduction and Conclusions are mere sketches at this stage, so feel free to ignore them too - Part III is what my presentation will concentrate on suggesting a gender equality standard for the regulation of prostitution; it is still a work-in-progress, so comments will be particularly welcome on this part!
Abstract Most feminist literature is divided on how to approach prostitution (some writers see it as sex work that should be normalized, some as inherently violent and exploitative practice that should be abolished). Connected to these positions, many normative debates about the response to prostitution concentrate on a legislative overhaul of current systems and either propose legalization (the Dutch model) or the criminalization of demand (the Swedish model). Based on the finding that many national responses to prostitution fall in between the two models and the recognition that not all jurisdictions might chose a legislative overhaul in either the Dutch or the Swedish direction, this paper tries to construct a gender equality-based standard that could be used to improve the well-being of prostitutes especially in the regulatory regimes in the middle. It argues that the treatment of clients and prostitutes needs to be compared, and that any regime in which the treatment is asymmetric to the detriment of the prostitute is indirectly discriminatory on the basis of sex. It is argued that while the client and the prostitute are sufficiently similar, in being parties to the same transaction, in order for a requirement of formal equality to apply (i.e. they should be at least treated equally symmetrically), they are also sufficiently different, in terms of social meaning of prostitution for the prostitute, risk of harm, and de facto inequality, to justify an asymmetric treatment benefiting the prostitute. Introduction

This paper explores the application of the principle of gender equality in national legal responses to prostitution. It sets out by presenting a typology of regulatory regimes, based mainly on secondary literature on EU member states and common law jurisdictions. I also draws on the authors own research on the Czech Republic. It then briefly introduces the feminist positions on prostitution. It observes than the two feminist positions (sex work and sexual domination) conceptualize prostitution vastly differently and disagree strongly on the best policy solution (decriminalization with legalization and criminalization of the client respectively). Most feminist writing adheres to either position and the positions appear to be irreconcilable. As a result, a non-partisan legal gender equality argument has, to the authors knowledge, not yet been fully developed. This paper tries to offer a framework for a gender equality analysis based on the comparison of the treatment of the client and the prostitute. In order to do so, the paper discusses the steps of a gender equality test, in particular the questions of comparability, justification and proportionality (it draws especially on the South African S v. Jordan case which addressed the issue). It pays attention to the areas where the prostitute is disadvantaged and vulnerable: the social meaning of prostitution, the risk of harm, and de facto inequalities between the prostitute and the client. It then offers several suggestions for symmetric measures and asymmetric measures benefiting the prostitute. A typology of regulatory regimes The term prostitution is in everyday parlance understood as commercial sex1 or the exchange of sex or sexual services for money or other material benefits.2 Rarely is prostitution defined in law.3 Prostitution is a phenomenon states respond to in very different ways. The literature denominates the various approaches as prohibition, criminalisation, abolition, decriminalisation, regulation, legalisation, and deregulation,4
1 2

I.

L Shrage, 'Should Feminists Oppose Prostitution' (1989) 99 (2) Ethics 347, 348. J Outshoorn, 'Introduction: prostitution, women and politics' in J Outshoorn (ed) The Politics of prostitution : women's movements, democratic states, and the globalisation of sex commerce (Cambridge University Press, Cambridge, UK ; New York 2004), 3. 3 A comparative study of 17 European countries revealed that only two of them, Austria and the UK, had a legal definition. B Hanilov and C Massey, Evaluation of EU Member States legislation and the situation concerning trafficking in human beings for the purpose of sexual exploitation (International Centre for Migration Policy Development; Unpublished manuscript on file with the author 2009), 107. 4 Common is the distinction between three regulatory regimes: abolitionism (referring to Sweden), prohibitionism (often referring to the US) and regulation (referring to the Netherlands). See Outshoorn, 6 and Norwegian Ministry of Justice and the Police, 'Purchasing Sexual Services in Sweden and the Netherlands. Legal Regulation and Experiences.' (2004) http://www.regjeringen.no/upload/kilde/jd/rap/2004/0034/ddd/pdfv/232216purchasing_sexual_services_in_sweden_and_the_nederlands.pdf (28 August 2009), 47. The term legalization is often used for the Dutch model as well. See H Beukema, 'Legalisation of prostitution in the Netherlands. A trial to decriminalise prostitution and to improve the economical, physical and emotional situation of prostitutes' (2004) 9 Femina Borealis 145. Prostitutes themselves often call for decriminalization or deregulation. See International Committee for Prostitutes' Rights, 'World Charter for Prostitutes' Rights (adopted in Amsterdam in 1985)' (1993) (37) Social Text 183; K Kempadoo, 'Introduction' in K Kempadoo and J Doezema (eds) Global sex workers : rights, resistance, and redefinition (Routledge, New York 1998). Other authors have created new terminology, similar to mine. For example Hanilov and Massey distinguish between four approaches: a) legalisation, b) criminalization of connected activities, c) criminalization of the client, d) complete criminalization. See also M Wijers,

but the actual understanding of these terms varies. Upon closer examination, these terms are not very helpful, especially since they do not use a single reference framework their categorizing criteria vary. In order to classify regulatory regimes, or to create a map or a spectrum, I believe it is imperative to consider at least the three interconnected issues: (i) the regimes overall attitude to prostitution - whether prostitution is seen as a negative phenomenon to be eliminated, whether the state is resigned to it and controls or contains it, or whether it accepts prostitution and facilitates it; (ii) the treatment of the actors involved in prostitution the prostitute, the client, the procurer; and (iii) what legislative goals does the regime primarily pursue and especially whether it is concerned with the well-being of prostitute. In the following I address these characteristics, and, for visual clarity, I also present the typology and main characteristics in the following table (the asterisks identify points of dispute between the two feminist positions as discussed below).
Type of regime Prohibition Attitude toward prostitution Negative Aim Suppress Eliminate Eliminate Legislative goals Morality Law and order Health Well-being of prostitutes* Morality* Morality Law and order Health Typical types of measures Procurer - criminalized Prostitute criminalized Client mostly criminalized Procurer criminalized Prostitute decriminalized Client - criminalized Procurers decriminalized and regulated (brothel keeping licences) Prostitute decriminalized and regulated (obligatory registration subject to fine, obligatory health checks) Client - decriminalized Procurer usually criminalization Prostitute decriminalized Client decriminalized Zoning, restrictions on soliciting and/or kerb-crawling, possibly health regulation Procurer decriminalized and regulated (brothel keeping licences) Prostitute - decriminalized and regulated (licence, employment and health law applies) Client - decriminalized Tolerance zones for outdoors Country (examples) USA

Abolition

Decrimin. with state control

Negative Prostitution seen as VAW Resigned Prostitution seen as inevitable yet pathological

Regulate Control

Sweden, Iceland, Norway AustroHungarian Empire; Austria; Czech 2005 proposal Belgium, Denmark, France, Italy, Poland, Spain, UK Netherlands

Decrimin. with containment

Resigned Prostitution seen as inevitable

Contain

Law and order Health Arguably morality Well-being of prostitute* Law and order Health Fiscal

Decrimin. with legalization

Acceptant to embracing Prostitution seen as work or service

Facilitate Normalize *

Overall attitude to prostitution On the one side of the spectrum are regimes which consider prostitution a negative phenomenon and aim at its elimination. One way of doing this is to prohibit prostitution in its entirety - by criminalizing the procuring, the buying and the selling of

'Women, Labor and Migration: The Position of Trafficked Women and Strategies for support' in K Kempadoo and J Doezema (eds) Global sex workers : rights, resistance, and redefinition (Routledge, New York 1998).

sex and related activities. Such a regime (often referred to as prohibitionist or criminalization) can be found in the US.5 Second approach is to criminalize the procurement or brothel keeping and the selling of sex but not the buying. This had until recently been the case in South Africa, where the system was famously subject to constitutional review in the case of S v. Jordan6 (one of the grounds pleaded was the violation of the right to gender equality). Both of these repressive approaches have now been abandoned by EU countries. 7 A third approach to the elimination of prostitution does not target the prostitutes behaviour, but focuses on stifling the demand, by criminalising the buyers of sex (as well as procurers). Often referred to as abolitionist or neo-abolitionist,8 it is exemplified today by the Swedish model.9 In Sweden, prostitution itself is neither legal nor illegal. However, the use of the prostitute is punishable. Since 1999, [A] person who [...] obtains a casual sexual relation in return for payment, shall be sentenced for purchase of sexual services to a fine or imprisonment for at most six months.10 In addition, procurement - promot[ing] or improperly financially exploit[ing] a persons engagement in casual sexual relations- is punishable with up to four years. 11 This policy is accompanied by programmes for reintegration into society or a range of

This is true for the entirety of the United States with the exception of parts of Nevada. See CA MacKinnon, Sex equality (2nd edn, Foundation Press; Thomson/West, New York [St. Paul, Minn.] 2007), 1236; RJ Weitzer, 'The Politics of Prostitution in America' in RJ Weitzer (ed) Sex for sale : prostitution, pornography, and the sex industry (Routledge, New York 2000). 6 Judgment of the Constitutional Court of South Africa S v. Jordan 2002 (6) SA 642 (CC). The case concerned a constitutional challenge to the provisions of the Sexual Offences Act that criminalized brothelkeeping and providing sex for reward (the offence of living on earnings from prostitution, was defined in Art. 20(1)(aA) as applying to any person who has unlawful carnal intercourse, or commits an act of indecency, with any other person for reward). The challenge was on several grounds, in particular dignity, privacy and equality. As far as equality is concerned, the majority dismissed the application, arguing that, because a client was criminally liable as an accessory or a conspirator in the act, there was no discrimination on the basis of sex (para. 11 of the judgment). The minority disagreed, arguing that the fact that the prostitute [is] the primary offender of the actual offence carr[ies] a difference in stigma and impact (para 63 of the dissenting opinion). They considered the provision to be unfair indirect discrimination on the basis of gender that is not justified. For a more detailed discussion of the case, see D Meyerson, 'Does the Constitutional Court of South Africa take rights seriously? The case of S v Jordan' (2004) Acta Juridica 138; and R Kruger, 'Sex Work from a Feminist Perspective: A Visit to the Jordan Case'20 (1) South African Journal on Human Rights 138. 7 Hanilov and Massey. To the authors knowledge, the last country in the EU, Romania, decriminalized prostitution in 2009. 8 Abolitionism has its origins the 19th century. The old abolitionism, mainly characterized by opposition to regulation regimes which normalize prostitution, was an inspiration for many national regulatory regimes in the first half of 20th century as well as to the international instruments of that period, such as the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Dec. 2, 1949, 96 U.N.T.S. 271, 282. Todays abolitionism, also referred to as neo-abolitionism, keeps the anti-legalization position and adds an emphasis on fighting demand. 9 Swedish Criminal Code (Chapter 4, Section 1a). Trafficking is punishable with up to ten year imprisonment. 10 Originally adopted by the Law of Sweden on the Prohibition of the Purchase of Sexual Services of 1999, it is not part of the Swedish Criminal Code (Chapter 6, Section 11). 11 Swedish Criminal Code (Chapter 6 Section 12)..

social provisions for prostitutes (shelter, training, etc.).12 The well-being of the prostitute is a primary concern (see below). Estimates of numbers of prostitutes in Sweden are very low, about 0,29 prostitutes per 1000 inhabitants.13 According to Sheila Jeffreys, this approach has now been adopted in Iceland, Norway, South Korea and South Africa. 14 Most of the other regulatory regimes have decriminalization of prostitution at their basis neither the prostitute nor the client are criminally liable. The regimes range greatly in their further response to prostitution. I choose the terms control, containment and facilitation to describe the three main types. The control approach is resigned to the existence of prostitution, but does not accept it as a normal, morally neutral activity. It aims at controlling it and the connected phenomena. A highly controlling regulation approach was common in the 19th century,15 when prostitutes were policed through registers (with non-registration punishable), obligatory regular health checks, strict zoning of street prostitution, and regulation of brothels. This approach existed for example in the Austro-Hungarian Empire. 16 Today, it still exists in some Lnder in Austria.17 In the following, this approach will be referred to as decriminalization with state control. Containment regime differs from control in that procurement usually remains illegal and the state addresses only some aspects of prostitution or prostitution-related activities such as soliciting in public places or kerb-crawling. Prostitution itself operates in a grey zone and is sometimes not even mentioned in statutes.18 The policing can occur under general public order or public health provisions. The less regulation surround prostitution, the more permissive the regime. This decriminalization with containment regime is currently prevalent in Europe.19 Facilitation of prostitution is usually the aim of regimes which are openly acceptant of prostitution as work or service. Mostly termed legalization, this approach
12

For more on the Swedish model see MacKinnon,12351236; Y Svanstrm, 'Criminalizing the john - a Swedish gender model?' in J Outshoorn (ed) The Politics of Prostitution: Women's Movements, Democratic States, and the Globalisation of Sex Commerce (Cambridge University Press, Cambridge 2004); Norwegian Ministry of Justice and the Police; J Bindel and L Kelly, 'A Critical Examination of Responses to Prostitution in Four Countries: Victoria, Australia; Ireland; the Netherlands; and Sweden' (2003) http://www.glasgow.gov.uk/NR/rdonlyres/C19E010B-1A4F-4918-97BDF96AF7D7F150/0/mainreport.pdf (28 August 2009); G Ekberg, 'The Swedish Law that Prohibits the Purchase of Sexual Services: Best Practices for Prevention of Prostitution and Trafficking in Human Beings'10 (10) Violence Against Women 1187. 13 Report by the Czech Parliamentary Institute cited by Deputy Karas (KDU-SL) speaking on 29 March 2005; http://www.psp.cz/sqw/tisky.sqw?F=H&PT=U&dx=1&o=4&na=prostituce&T=&ZA=&f_N=on&f_I=on& f_U=on&f_S=on&f_Z=on&f_P=on&f_R=on&f_V=on&f_O=on&ra=20. 14 See S Jeffreys, 'Prostitution, trafficking and feminism: An update on the debate' (2009) 32 (4) Women's Studies International Forum 316, 39, and S Jeffreys, The industrial vagina : the political economy of the global sex trade (Routledge, London ; New York 2009), 203-204. 15 See seminal work of AJB Parent-Duchtelet, De la prostitution dans la ville de Paris (Paris 1836). 16 B Havelkov, European Gender Equality Under and After State Socialism: Legal Treatment of Prostitution in the Czech Republic (MSt., University of Oxford 2009), 59 and following. 17 Lower Austria and Vienna. See B Sauer, 'Discourses on prostitution in Austria' in J Outshoorn (ed) The Politics of prostitution : women's movements, democratic states, and the globalisation of sex commerce (Cambridge University Press, Cambridge, UK ; New York 2004). 18 This is for example the case in the Czech Republic. Havelkov. 19 Hanilov and Massey, 104.

has been adopted in the Netherland and is thus often referred to as the Dutch model.20 The state of Netherlands has lifted a ban on brothels in 2000, in a move from passive tolerance21 to active tolerance of prostitution.22 The state entitled municipalities to license brothels and regulate other aspects of the sex industry (for example set time and place restrictions, regulate advertising, etc.). While maintaining criminal sanctions for trafficking and emphasizing the prosecution of exploitation of involuntary prostitution,23 voluntary prostitutes status has been normalized. The well-being of the prostitute is an important concern of this approach (see below). Prostitutes can either be employed by brothel-keepers or be self-employed. They are liable for tax and social security contributions. While recommended, there is no obligation to undergo health checks.24 A failure to legalize their activities does not lead to criminal liability, however, the sale and purchase of sexual services on the street outside the [tolerance] zone is a criminal offence [] punishable by fines.25 The numbers of prostitutes are high under such regime estimates speak about 3,13 prostitutes per 1000 inhabitants in the Netherlands. 26 The regulation of the actors involved in prostitution The treatment of actors - the prostitute, the client and the procurer or brothelkeeper in the different regimes has already been mentioned above. Here I want to highlight the fact that there is not always a straightforward correlation between the overall aim of the regime and the way in which especially the prostitute herself is treated. Disparity between the treatment of the prostitute and the client is common. As far as the prostitute is concerned, a regime aiming to eliminate prostitution can be at the same time very permissive of the prostitutes behaviour. In the Swedish model, the prostitute herself is protected, while the activities of other actors are prohibited. On the other hand, an approach permissive of prostitution itself might none the less impose regulatory restrictions on the prostitute. The decriminalization with state control regimes weave a web of various administrative obligations (such as health checks) and restrictions (zoning) around the prostitute. The breach of these restrictions and obligations results in fines. Even a legalization regime can be restrictive - the Dutch models time, place and manner restrictions on the practice, solicitation or advertisement
MacKinnon, 1235-1236. The ban on brothels has not according to Dutch government - been enforced for the 50 years preceding the 2000 lift of the ban and the business of prostitution was not interfered with unless it caused inadmissible nuisance or breached other provisions of law. Norwegian Ministry of Justice and the Police, 26. 22 ibid. 23 Netherlands Ministry of Foreign Affairs, 'Dutch Policy on Prostitution. Questions and Answers 2004' (2004) http://www.mfa.nl/contents/pages/743/prost.pdf (28 August 2009). For more on the Dutch model see Beukema; AL Daalder, 'Lifting the ban on brothels. Prostitution in 2000-2001 (English summary)' (2004) http://www.wodc.nl/onderzoeksdatabase/01.035g-lifting-the-ban-on-brothels.aspx (28 August 2009); Norwegian Ministry of Justice and the Police; Y Ertrk, Report of the Special Rapporteur on violence against women, its causes and consequences. Addendum. Mission to the Netherlands (A/HRC/4/34/Add.4) (2007). 24 Netherlands Ministry of Foreign Affairs. 25 Norwegian Ministry of Justice and the Police, 33. 26 Report by the Czech Parliamentary Institute cited by Deputy Karas (KDU-SL) speaking on 29 March 2005; http://www.psp.cz/sqw/tisky.sqw?F=H&PT=U&dx=1&o=4&na=prostituce&T=&ZA=&f_N=on&f_I=on& f_U=on&f_S=on&f_Z=on&f_P=on&f_R=on&f_V=on&f_O=on&ra=20.
21 20

of prostitution,27 and the registration requirement, are onerous and limit the freedom of the prostitute. Importantly, for the gender equality argument I make later in this paper, the prostitute is often the only or the primary target of criminalization, control, regulation or containment, and not the client. The client is the specific and the sole target only under the Swedish model. Restrictive regimes which aim at prohibiting prostitution in its entirety sometimes do criminalize the client, but sometimes ignore him as an object of criminalization.28 Many decriminalization with containment regimes address obligations and restrictions to the prostitutes only. This was for example the case in the UK until 198529 and is still the case with many municipal ordinances governing public order in the Czech Republic.30 A recent legislative governmental proposal in the Czech Republic, falling under the decriminalization with state control category, would have introduced restrictions, obligations and sanctions diametrically different for the prostitute and the client. The proposal foresaw eight different offences for the prostitute, punishable with up to 50.000 CZK, and only three for the client, punishable with up to 15.000 CZK. While selling sex without a licence was to be an administrative offence for the prostitute, buying sex from a prostitute without a licence was not. Repeated exercise of prostitution without a license was to be a crime, punishable with up to one year imprisonment or a fine. Buying sex from an unlicensed prostitute, on the other hand, was not, notwithstanding the fact that the lack of license might mean that the prostitute has been trafficked. A remark should be made regarding the implementation of the rules governing both the selling and the purchase of sex in practice - large discrepancies exist between statutory provisions and their enforcement. Even where the legal treatment of client and prostitute is formally equal, an enforcement bias can exist against the prostitute. In repressive prohibitionist regimes which criminalize both buying and selling of sex, such as the US, prostitutes are often targeted but not clients.31 Even in regimes where prostitution is decriminalized (such as France and Canada)32 prostitutes are nonetheless disproportionately targeted and harassed in policing. The treatment of a third party facilitating prostitution (procurer or brothel-keeper) is usually in congruence with the overall character of the regime. A prohibitionist and abolitionist regimes criminalize procurement, often using a broad definition of it.
27

C Meyer, 'Decriminalizing Prostitution: Liberation of Dehumanization?' (1993) 1 Cardozo Women's Law Journal 105, 106.
28 29

In the UK, the 1959 Street Offences Act made it illegal for a 'common prostitute' to loiter or solicit for prostitution. Only in 1985 did kerb-crawling soliciting by the client receive the same treatment. See for example N Adams, 'Prostitute women, justice and the law' (1993) 4 (3) A Cultural Review 295. This is also the case in many municipal ordinances in the Czech Republic. Havelkov. 30 Havelkov, 79. 31 D McBride Stetson, 'The invisible issue: prostitution and trafficking of women and girls in the United States' in J Outshoorn (ed) The Politics of prostitution : women's movements, democratic states, and the globalisation of sex commerce (Cambridge University Press, Cambridge, UK ; New York 2004). 32 LA Jeffrey, 'Prostitution as public nuisance: prostitution policy in Canada' in J Outshoorn (ed) The Politics of prostitution : women's movements, democratic states, and the globalisation of sex commerce (Cambridge University Press, Cambridge, UK ; New York 2004); AG Mazur, 'Prostitute movements face elite apathy and gender-biased universalism in France' in J Outshoorn (ed) The Politics of prostitution : women's movements, democratic states, and the globalisation of sex commerce (Cambridge University Press, Cambridge, UK ; New York 2004).

Legalization regimes, on the other hand, treat procurement and brothel-keeping as a legitimate business. The attitude toward procurement and brothels is important for distinguishing between the decriminalization with state control and decriminalization with containment approaches. The former allows and regulates brothels while under the latter, brothel-keeping is prohibited. On an aside, it is noteworthy that, while international law is mostly concerned with trafficking and not the regulation of prostitution, the 1949 Convention33 has implications for the treatment of procurement. It requires its signatories to criminalize the exploitation of prostitution. States choosing legalization or control approaches thus have to withdraw from this Convention (if they are signatories), as the legalisation of brothels is incompatible with it. Legislative goals Lastly, it is important to notice the legislative goals the different systems pursue. Joyce Outshoorn distinguishes between four goals of state intervention: to maintain law and order, preserve morals, prevent the spread of sexually transmitted diseases (STDs), and protect women from exploitation. 34 Most regimes have a mix of legislative goals. A historical caveat should be made here. In 19th and first half of 20th century, many regimes had strong emphasis on public order and morality (prohibitionist and old decriminalization with state control regimes) or health (old abolitionist35). The wellbeing of the prostitute was either a non-issue or a marginal concern. Many current regimes, on the other hand, are influenced by feminist discussions of late 20th century. Both Dutch model and Swedish model count the well-being of the prostitute prominently among their legislative goals. Their understanding of what is good for the prostitute is however dramatically different (and mirrors the two feminist positions discussed below). Thus, the Swedish government states that it criminalized the purchase of sex because the [t]he ability of men to purchase sexual access to women in order to gratify their own sexual needs runs contrary to the conviction of universal human equality and to the pursuit of full equality between women and men.36 The Dutch governments goals in legalizing prostitution included: [the] amelioration of the prostitutes position: greater personal safety and more legal protection of their rights. Furthermore it was hoped that the taboo and the stigmatization surrounding prostitution would disappear and that it would become socially acceptable.37 But even today, some regimes or legislative proposals omit to consider the wellbeing of the prostitute. The difference in concern for the well-being of prostitute is why the decriminalization with state control and the legalization regimes have been kept separate in my typology. My research in the Czech Republic has shown proposals presented as liberal and permissive and inspired by the Dutch model,38 can be in reality
33 34

1949 Convention. Outshoorn, 7. 35 See Fn. 8. 36 Report by the Swedish Socialdepartementet, cited in MacKinnon, 1315. 37 Beukema, 152. 38 A governmental proposal of an Act on the Regulation of Prostitution was presented to the Parliament in 2005. Government of the Czech Republic, 'Governmental Proposal of an Act on the Regulation of

very restrictive on the prostitute. Aside from the striking discrepancy between the treatment of the prostitute and the client (mentioned above), the proposal included obligatory monthly health checks for prostitutes, ID cards, extensive record-keeping about the registered prostitutes by municipalities as well as by brothel-keepers, and various restrictions and obligations on the prostitute accompanied by a range of administrative and criminal sanctions. Such an approach resembles much more the old regulation regime from Austro-Hungarian times than the 21st century Dutch model concerned with the well-being of prostitute. So while both propose the legalization of procurement and brothel-keeping, they beg distinction. The 2005 Czech proposal (decriminalization with state control) as well as the current legal situation in the Czech Republic (decriminalization with containment) strongly favour the client. The well-being of the prostitute is ignored. The fact that this appears to be the case in other countries which fall under these regulatory regimes,39 is at the basis for this papers question how can the principle of gender equality be used to improve the existing or proposed regulatory frameworks in countries which have not (yet) chosen a legislative explicitly based on concern for the prostitute (whether under the Dutch conceptualization of prostitution as sex work, or the Swedish conceptualization of purchase of sex as violence against women). As my paper attempts to explore the middle ground and to be agnostic of the final substantive response to what prostitution is, it is important to first present the landscape of the feminist debate as I understand it. Feminist approaches The question of prostitution has been difficult for feminists. The two things feminists agree on is that the act of prostitution itself should never be criminal40 and that exploiting women by using coercion, deceit, abuse or violence to bring and/or keep them in prostitution always should. They have, however, diametrically opposed answers to the question whether a person can choose prostitution freely as a profession. Two distinct positions can be identified.41 The first position conceptualizes prostitution as sex work (and speaks about sex workers, clients and procurers); the second sees it as sexual domination and the essence of womens oppression (and speaks about prostitutes, johns and pimps). These positions further disagree on the following: (i) why people choose to prostitute (agency or coercion), (ii) what is being sold (services or self), (iii) what is the harm (repressive laws or prostitution itself), (iv) whether domination is a problem (none, economic or sexual), (v) whether a distinction should be drawn between voluntary and forced prostitution (yes or no), (vi) whose word to take for granted (sex-workers speaking for themselves or experiences of the most marginalized extracted by qualitative research), and (vii) which regulatory regime to choose (decriminalization or abolition). II.

Prostitution (Print No. 1073 of 2005)' (2005) http://www.psp.cz/sqw/text/tiskt.sqw?O=4&CT=1073&CT1=0 (1st July 2009). 39 See Hanilov and Massey 40 G Scambler and A Scambler, Rethinking prostitution : purchasing sex in the 1990s (Routledge, London ; New York 1997), 186; CA MacKinnon, 'Prostitution and Civil Rights' (1993) 13 Michigan Journal of Gender and Law 1; see also International Committee for Prostitutes' Rights; and other feminist literature cited in this article. 41 For an overview see for example J Outshoorn, 'The Political Debates on Prostitution and Trafficking of Women' (2005) 12 (1) Social Politics 141. Two roughly corresponding categories

The sex-work position The sex-work position42 emphasises autonomy, agency, choice and selfdetermination of prostitutes. It argues that, as any other worker, the prostitute sells alienable labour power.43 Than-Dam Troung44 conceptualizes prostitution as sexual labour, which should be considered similar to other forms of labour that humankind performs to sustain itself.45 External pressures to enter prostitution such as poverty are admitted but not a reason to dispute prostitutes choice. According to most sex-work proponents, there is no inherent problem in the nature of sex work; only the conditions it exists in today. It is the laws criminalizing sexworkers and repressing their migration that need changing, not prostitution itself. Many organizations of prostitutes46 are among the proponents of the sex-work position. It also finds support among many feminists, and has been identified as the currently predominant position in the academic writing.47 It resonates with a liberal or neo-liberal emphasis on personal choice and agency as well as with socialist feminisms analysis of sex work as work which places prostitutes within the context of the (international) labour movement.48 The sex-work position developed the distinction between forced or involuntary prostitution (trafficking) and voluntary or consensual prostitution (sex work). The former, because women have no choice, needs to be fought. The latter, as an expression of womens agency should be decriminalized and normalized. In terms of regulatory regimes, the sex work position mostly calls for decriminalization accompanied by legalization of voluntary prostitution. Under it, sex work should be treated as any other work or service and sex migration as any other labour migration. The proponents argue for equal human and labour rights, protection for all sex workers and working visas for migrant sex workers.49 It is thus also referred to as the pro-rights approach,50 and the Dutch model is often seen as an example of good practice. The sexual-domination position

See for example F Delacoste and P Alexander, Sex work : writings by women in the sex industry (Virago, London 1987); W Chapkis, Live sex acts : women performing erotic labor (Routledge, New York 1997); S Bell, Reading, writing, and rewriting the prostitute body (Indiana University Press, Bloomington 1994); TD Troung, Sex, Money and Morality: The Political Economy of Prostitution and Tourism in South East Asia (Zed Books, London 1990); K Kempadoo and J Doezema, Global sex workers : rights, resistance, and redefinition (Routledge, New York 1998). 43 J O'Connell Davidson, 'The Rights and Wrongs of Prostitution' (2002) 17 (2) Hypatia 84, 86. 44 Troung. 45 Kempadoo summarizes Troungs arguments in Kempadoo and Doezema, Global sex workers : rights, resistance, and redefinition , 4. 46 For a discussion see V Jeness, Making It Work: The Prostitutes' Rights Movement in Perspective (Aldine De Gruyter, New York 1993). 47 Jeffreys, 'Prostitution, trafficking and feminism: An update on the debate'. 48 For a discussion of the feminist positions see DK Weisberg, Applications of feminist legal theory to women's lives : sex, violence, work, and reproduction (Women in the political economy, Temple University Press, Philadelphia 1996). 49 Kempadoo and Doezema, Global sex workers : rights, resistance, and redefinition . 50 Outshoorn, 'The Political Debates on Prostitution and Trafficking of Women'.

42

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The sexual-domination approach argues that prostitution is a form of violence against women. It contests the claims of choice, consent and voluntariness, citing prostitution survivors description of it the choice made by those who have no choice.51 Kathleen Barry argues that prostitution is a form of female sexual slavery. 52 In contrast to the sex-work approach, which concerns itself with conditions of labour, the sexual-domination claims that the nature of the activity is the problem, that it is inherently harmful. Unlike the sex-work proponents, sexual-domination theorists argue that what is being sold is the person herself and not just her services. To the question of what is wrong with prostitution?, Carole Pateman answers that for the client to buy mastery of an objectified female body, the prostitute must sell herself in a very different and much more real sense than that which is required by any other occupation.53 This is inherently damaging to the prostitute.54 Sexual-domination proponents do not dispute the fact that prostitution is often a result and an indicator of economic inequality. But they see sexual domination as more fundamental basis and explanation of prostitution.55 The sexual domination position is proposed by radical feminists56 who use a deconstructivist approach in social science, in particular in-depth interviews and biographical narratives, as evidence. These as well as statistical data are used to show the violence inherent in prostitution. Citing extensive research conducted in different countries, Melissa Farley lists things we must not know in order to keep the business of sexual exploitation running smoothly.57 Among others, we can not know that prostitution is extremely violent and that prostitution, pornography and trafficking meet or exceed legal definitions of torture.58 She points out that the overwhelming majority of women in prostitution report repeated instances of verbal abuse, physical assault, and rape by both procurers and buyers. Cross-culturally, the levels of posttraumatic stress disorder among prostitutes are higher than those of Vietnam Veterans,59 and a Canadian statistic shows that prostitutes are forty times more likely to be a murder victim than the general populace.60 Not only this unpaid for violence but more importantly the paid for violence of everyday penetration is considered violence against women. 61 Because lack of choice and harm is considered as intrinsic to prostitution, prostitution is not seen as conceptually separate from trafficking - the distinction between involuntary and voluntary prostitution is contested. As a result, international antitrafficking instruments are given the broadest possible meaning.

Vanwesenbeecks and Wisterichs work cited in M Farley, 'Prostitution, Trafficking, and Cultural Amnesia: What We Must Not Know in Order to Keep the Business of Sexual Exploitation Running Smoothly' (2006) 18 Yale JL & Feminism 109, 110. 52 K Barry, Female sexual slavery (New York University Press, New York 1984), 40. 53 C Pateman, The sexual contract (Polity, Cambridge [Cambridgeshire] 1988), 207. 54 See also D Leidholdt, 'Prostitution: A Violation of Women's Human Rights' (1993) 1 Cardozo Women's Law Journal 133, 135; and MacKinnon, 'Prostitution and Civil Rights'. 55 Barry, 9-10. 56 Andrea Dworkin, Catharine MacKinnon, Janice Raymond, Kathleen Barry, among others. 57 Farley, 122. 58 ibid, 122. 59 MacKinnon, Sex equality , 1259. 60 Farley, 115. 61 Jeffreys, 'Prostitution, trafficking and feminism: An update on the debate'.

51

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The preferred legislative response is the curbing of demand,62 through the criminalization of procurers and buyers, accompanied by a support system for women to escape prostitution63 the Swedish model. The proponents of the sexual-domination approach also argue for the availability of civil remedies.64 Internal differences It is further possible to differentiate several sub-positions especially the sex work writing is not monolithic. I will present these sub-positions by distinguishing between principled and pragmatic arguments. I argue that there are three different types of principled argument in the sex work position, as well as a strong pragmatic sub-position. The first argument about principle addresses sex and sexuality. Some sex-work proponents, such as Gayle Rubin or Pat Califia,65 often referred to as sex radicals,66 stress positive aspects of prostitution. They celebrate consensual sexual practices that can be read as subverting binaries of normal/abnormal, healthy/unhealthy, pleasurable/dangerous sex. Prostitution becomes a legitimate feature of erotic diversity.67 Any repressive approach is blamed for societys negative attitudes to ALL womens sexuality. 68 It is further argued that prostitution has a valuable social function of facilitat[ing] the gratification of erotic needs that would otherwise go unmet.69 There is however intra-position criticism of the sex radicals. OConnell Davidson challenges the notion of transcendental human need for prostitution and stresses the need to recognize the social construction of desires. Secondly, she criticizes the fiction of a sovereign sexual subject: [] sex radicals [ imagine] that by exchanging money for commodified sex, the individual is liberated from her or his fixed relationship to the sexual community, recognized as a sexual subject and set completely free.70 This, she argues, is difficult under the system of patriarchy. A second principled argument concerns the nature of work. To Chapkis, sex work is normal emotional labour like child care, massage work, psychotherapy, acting or other service work.71 Similarly, Troung compares sex work to any other mental or
62

See for example MacKinnon, 'Prostitution and Civil Rights'; Barry; K Barry, The prostitution of sexuality (New York University Press, New York 1995); Farley. 63 A Dworkin, Letters from a war zone : writings 1976-1987 (Secker & Warburg, London 1988), 147. 64 A civil claim for coercion into prostitution exists in the state of Florida. Floridas Section 796.09(1), cited in MacKinnon, Sex equality , 1322 and 1327. 65 See for example P Califia-Rice, 'Macho sluts : erotic fiction' (1988) 1st U.S. Alyson Publications ; P Califia, Public sex : the culture of radical sex (1st edn, Cleis Press, Pittsburgh, Pa. 1994); G Rubin, 'Thinking sex: Notes for a radical theory of the politics of sexuality.' in R Parker and P Aggleton (eds) Culture, society and sexuality: A reader (UCL, London 1999). 66 O'Connell Davidson, 95. 67 ibid, 88-98. 68 Helen Vicqua, Scarlet Alliance internal communication, May 19th 1995, cited in A Murray, 'DebtBondage and Trafficking. Don't Believe the Hype' in K Kempadoo and J Doezema (eds) Global sex workers : rights, resistance, and redefinition (Routledge, New York 1998), 61. 69 O'Connell Davidson, 89. 70 ibid, 89 71 Chapkis, 76.

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manual labour, all of which involve specific parts of the body and particular types of energy and skill.72 On the basis of its normalcy, prostitution should be treated exactly like any other work. This is a relatively common sub-position among sex-work proponents. A third argument stresses agency.73 It argues that respecting choice is the basis of womens empowerment. As many sex-worker organizations claim that prostitution is their work of choice, these sex work proponents insist on enabling this choice by the legal order. Moreover, recognition of agency is seen as a precondition for any attack on patriarchal structures bottom-up. This understanding is also quite strong in all sex-work writing, even though many socialist feminists74 argue that prostitution is caused by womens poverty and recognize that, as a result, choice can be limited. A pragmatic argument usually accompanying all three principled positions can then be discerned. It arises from the recognition that prostitution is a phenomenon which can not be eradicated. Bringing it into legality would enable guarantees of more rights and equal rights to sex workers. A permissive decriminalization approach is thus supported, with legalization and equal treatment on the labour market for sex workers and easy entry (visa) regime for migrant sex workers. In the sexual domination position, the arguments of principle are dominant and relatively unified - there is an agreement that patriarchy is at the root of the subordination that is prostitution. A pragmatic position does not exist independently and it is also of different quality. The policy postulates of sexual domination proponents try to attain an ideal they hope for eradication of prostitution through measures curbing demand and/or for elimination of subordination of women under patriarchy. The principled goals are crucial to a point where a permissive policy becomes unacceptable, not even temporarily, as it would create a culture accepting of prostitution. Critique of proposed legal responses It is obvious from the above mentioned postulates, that the two feminist positions will be highly critical of each others preferred legal response to prostitution. Sex-work proponents point out that the proposal for suppression of demand, i.e. the Swedish model, is blinded to the realities by its nave idealism. Well-being of women in or about to enter prostitution should be tantamount, and not an abstract goal of abolition. An asserted result of the Swedish model is that the actual situation of prostitutes in not improved they still can not normally operate in the open and claim equal rights. It is argued that the fear of criminalization in clients leads to two further negative effects: the negotiation time for transactions shortens, which makes it more difficult for the prostitute to assess whether the client is dangerous;75 and clients, who are sometimes the only possible link between a victim of trafficking and the police, loose any incentive for reporting this abuse.76 According to the Norwegian governments report, one Swedish
72

Kempadoo summarizes Troungs arguments in Kempadoo and Doezema, Global sex workers : rights, resistance, and redefinition , 4. 73 For example OConnell Davidson represents this position. 74 Recently for example SA Limoncelli, 'The trouble with trafficking: Conceptualizing women's sexual labor and economic human rights'32 (4) Women's Studies International Forum 261. 75 For discussion see Norwegian Ministry of Justice and the Police. 76 From interviews conducted by Hanilov. Hanilov and Massey

13

prostitute informant summed up that there is great pressure on prices, demands for unprotected sex have increased and there is more violence.77 On the other side, sexual domination proponents critique of permissive approaches concentrates on the fact that they in practice lead to a prostitution culture an increase in both legal and illegal prostitution,78 and a acceptance of objectification of women. They argue that legalization does not go hand in hand with equal treatment, normalization and destigmatization for example preference for indoors prostitution or for zoning still push prostitutes from public domain and carry stigma; health checks, when obligatory, secure STD-free service to clients rather than protection to the prostitute. Legal control of prostitution thus targets its []outward appearance rather than the conditions in which women find themselves. On the whole, governments are far more anxious about public order and public health than about abuse and violence. 79 It is also often pointed out that only a small percentage of prostitutes availed themselves of the registration option.80 Middle ground? I have found it difficult to locate a middle ground in the feminist debate, especially as far as legal solutions are concerned. Several writers have extremely important insights and avoid the binary. For example, many socialist feminists argue that prostitution should not be attacked directly, but that womens poverty needs to be addressed. For example Stephanie Limoncelli states that strategies for social and economic justice [are needed] which at the same time will help to combat the exploitation of women in prostitution.81 Another solution is offered by Laurie Shrage, who sees prostitution as gendered and oppressive only under current conditions82 and argues for a change in the cultural context: by striving to overcome discriminatory structures in all aspects of society - in the family, at work outside the home, and in our political institutions - feminists will succeed in challenging some of the cultural presuppositions which sustain prostitution. Consequently,

Norwegian Ministry of Justice and the Police, 19. For the example in Australia see M Sullivan, 'What Happens When Prostitution Becomes Work? An Update on Legalisation of Prostitution in Australia' (2005) Coalition Against Trafficking in Women <http://action.web.ca/home/catw/attach/Sullivan_proof_01.pdf> (2nd March 2009). 79 Wijers and Lap-Chew cited in Farley, 137. 80 According to the Prostitution Information Center in Amsterdam, in the Netherlands only 5% to 10% of the nearly 20,000 prostitutes are registered and pay taxes. D Bilefsky, 'Belgian Experiment: Make Prostitution Legal to Fight Its Ills' The Wall Street Journal (May 26 2005). 81 Limoncelli. 82 Shrage argues that although the commercial availability of sexuality is not in every existing or conceivable society oppressive to women, in our society this practice depends upon the general acceptance of principles which serve to marginalize women socially and politically. Because of the cultural context in which prostitution operates, it epitomizes and perpetuates pernicious patriarchal beliefs and values and, therefore, is both damaging to the women who sell sex and, as an organized social practice, to all women in our society. Shrage, 349.
78

77

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[] if prostitution were sufficiently transformed to make it completely nonoppressive to women, though commercial transactions involving sex might still exist, prostitution as we now know it would not.83 While I agree with both propositions, it seems to me that they sidestep rather than go beyond the binary with regard to legal solutions. They do not help governments who might be pondering how to construct, amend or change their legal response to prostitution or judges who are asked to review an existing policy or its application (in the light of their constitutional, statutory or international requirements). I hope that my argument which follows might do that offer a gender equality standard which, in being agnostic to the ultimately best solution and not adopting either feminist position, could be used across the board. Who to base a legal response on? We have seen that the points of disagreement between the positions are many. In the following, I discuss the one I believe to be of particular import for legislative choice the question of whom to address in a legal response. Both positions accuse the other of disconnect with the reality and the homogenization of the phenomenon. The sex work position argues that the sexual domination position disregards the heterogeneity of prostitution, ignores agency and imposes a victim narrative on everyone. The sexual domination position argues that sex work proponents ignore the violent reality of prostitution. As far as the former complaint is concerned, especially third wave feminists84 stress the difference between the First and the Third World and criticise the Western cultural imperialism in dominating the prostitution discourse, a lack of historicization and geo-political contextualization.85 Even within a national system, they argue, the diversity in sex-workers lives and experiences must be recognized. They are not always victims or objects.86 An example is sometimes given of a rich university student who sells sex for luxuries. It is argued that there is choice and possibly sexual enjoyment, and that these women need to be taken into account when designing a legal solution. The sexual domination proponents dismiss this happy hooker argument with four counterarguments. First, conceptually, choice under patriarchy is questioned.87 Second, it is argued that whether the prostitute accepts to be a victim or not, the context and social meaning in patriarchal society still victimize her.88 Third, connected to this, the existence of prostitution harms womens equality also because men can base their understanding of all women on prostitution (whether as husbands and partners or as executives who decide about womens advancement in the workplace).89 Four, it is argued that the creamy layer in prostitution does harm by false advertising90 it creates an impression about the realities of prostitution which are not true for the majority of women involved.

83 84

ibid, 359. For example Kempadoo and Doezema, Global sex workers : rights, resistance, and redefinition . 85 ibid, 13. 86 See for example O'Connell Davidson, 91-92. 87 Dorchen Leidholdt states that prostitution is about the absence of meaningful choices. Leidholdt, 136. 88 Shrage, 358. 89 Jeffreys, 'Prostitution, trafficking and feminism: An update on the debate'. 90 I thank Michelle Madden Dempsey for this insight.

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As far as homogenization goes, I believe that both positions commit this error to some extent. Let us, for the sake of argument, say that there are three zones of prostitution. The first one is a black zone, where prostitutes are victims of coercion (and as such fall under the trafficking definition of the Palermo Protocol91) or are under age. The second one is a grey zone, where the prostitutes are vulnerable (by reasons of race, homelessness, drug or alcohol addiction, immigration status, poverty, etc), and often under the control of a pimp. The freedom of their choice to enter and remain in prostitution could be disputed. The third one is a white zone, where the prostitute has other options, but chooses prostitution, is independent and in control. While the black zone is considered unacceptable to both positions and there is consensus for its criminalization, the proponents of the sex work and sexual domination positions disagree about the size and the existence of the grey and the white zones. To sexual domination proponents, the white zone is an illusion and the grey zone is virtually indistinguishable from the black. That is what their policy proposals are based on. To sex work proponents, the white zone definitely exists and is substantial in size. But their policies are based on the argument that the situation of both, prostitutes in the white zone and the grey zone, would be improved if prostitution were normalized, accepted and treated equally with other work or services. Considering the difficulties facing research into prostitution, but also the binary conceptualizations, it is very difficult to know what portion of the sex industry falls into which zone. Is it 10-50-40 (black-grey-white; as to my mind a proponent of the sex work position might estimate) or is it 50-50-0 (as a sexual domination proponent might)? While I am very sympathetic to the radical feminist analysis that under patriarchy all choice is problematic and that violence is an omnipresent threat, I find it difficult to entirely dismiss the existence of the white zone. I find it difficult to tell prostitutes who claim they know what they are doing, that prostitution is the best they can do, and that they want to continue doing it, that they are victims of false consciousness and that they really are sexual slaves. The question for me is different: even recognizing that a certain percentage of prostitutes chooses prostitution and wants it legalized, is there an argument that the legislative response should be based on another (vulnerable and endangered) group of prostitutes? Namely based on those in the grey and black zones? Here, I could accept the (above mentioned) arguments of false advertising and the more general impact of culture of prostitution, as validating that position. Im sympathetic to the argument that the danger inherent in prostitution could justify legislatively limiting some prostitutes freedom, even if they made the choice to risk it. These observations show my preliminary thoughts on the ultimate solution and I disclose them to admit to my positionality. In the following, however, I attempt to be non-partisan as regards the binary conceptualizations of prostitution, the different
91

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. Art.3 (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the U.N. Convention Against Transnational Organized Crime, G.A. Res. 55/25, 55 U.N. GAOR Supp. (No. 49), U.N. Doc. A/45/49 (Vol. I) (2001).

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understanding of what the requirements of gender equality mean for its regulation and the proposed solutions. Gender equality To begin with, let us explore why is prostitution a matter of gender and why a matter of equality. There are two main reasons prostitution should be considered a gender issue. First, the distribution of men and women in the positions of buyers and prostitutes suggest that it is an extremely sex segregated field where the demand is overwhelmingly created by men and the supply by women.92 This is a fact that both feminist positions agree on,93 and that few people generally would dispute.94 Second, the sexual domination position further argues that prostitution is inherently gendered. Dorchen Leidholdt comments: Which other job is so deeply gendered that ones breasts, vagina and rectum constitute the working equipment? Is so deeply gendered that the workers are exclusively women and children and young men used like women?95 While I agree with this analysis, the first observation, about the distribution of the sexes in the respective roles of the prostitute and the client, is sufficient for my argument. As far as equality is concerned, the legal treatment of prostitution is a matter of equality if two parties to the same transaction (similarly situated) are treated differently without a good reason (justification). There are three scenarios in terms of comparative treatment of the prostitute and the client. First, there can be asymmetric treatment benefiting the client. I observe that this is still an existing practice and argue that this is a violation of gender equality. Second, the treatment can be symmetric, where both parties are subject to the same treatment. I argue that the principle of equality requires at least this standard. However, I will argue for an asymmetric treatment for the benefit of the prostitute. Before I elaborate on the examples for these scenarios, a clarification is needed on what standard of equality am I referring to and how do I apply it to prostitution. Equality test As far as standard of equality is concerned, while national96 understandings of it 97 vary, they often ask similar questions: (i) is there a difference in treatment or impact98
92 93

III.

Rosaan Kruger, pointing out to South African statistics, says that 95 % of prostitutes are women. Kruger. Outshoorn, 'The Political Debates on Prostitution and Trafficking of Women', 147. 94 See for example the agreement among the parties on this issue in the South African case S v. Jordan, as mentioned in the dissenting opinion, para. 60. 95 Leidholdt. 96 I am drawing on comparisons of national standards, as these allow me to use existing case-law. However, the international standard definition of sex discrimination, as contained in CEDAW, comprises many of the elements as well: For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Art. 1 Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 14. 97 A comparative analysis of the definitions of equality and the judicial tests goes beyond the aims of this paper. My reasoning is based primarily on the case-law of the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR), the US Supreme Court, the Supreme Court of Canada and the Constitutional Court of South Africa. I am using the analysis available in JH Gerards,

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(ii) between persons that are comparable,99 (iii) is the ground for the distinction suspicious,100 (iv) is the distinction fair,101 (v) is it pursuing a legitimate aim,102 and (vi) is the measure proportionate to that aim103? Direct vs. indirect discrimination We have established the suspicious grounds most clients are men, most prostitutes are women. The next question to ask is whether the problem is one of direct or indirect discrimination. A direct discrimination case would require a direct explicit reference to the sex of the prostitute. May be somewhat surprisingly, some jurisdictions did until recently make prostitution illegal only when a woman was engaged in it. Catharine MacKinnon points out that the state of Louisiana used to define prostitution as the practice by a female of indiscriminate sexual intercourse with males for compensation.104 At the time, the court reviewing it for compatibility with the equal protection clause ruled that [d]ifferences between the sexes do bear a rational relationship to the prohibition of prostitution by females. 105 Arguably, such directly discriminatory provision would be found in breach today (not least because an intermediate and not only rational scrutiny would be applied106). The substantive reason for this is that the groups compared are men in prostitution and women in prostitution. It
Judicial review in equal treatment cases (M. Nijhoff Publishers, Leiden ; Boston 2005); and MacKinnon, Sex equality . 98 A difference in treatment is termed direct discrimination in the European and South African context and disparate treatment in the US, and a difference in impact (of an otherwise neutral provision) is termed indirect discrimination in the European and South African context and disparate impact in the US. 99 The emphasis on comparability varies. In the US, the question whether groups are similarly situated, is often crucial for deciding whether discrimination prima facie occurred or not. Awarding this importance to comparability has been criticized by Gerards, who argued that too much depends on the choice of criteria which measure comparability non-identical situations (or groups) are always in some ways the same and in some ways different. Gerards, 57 and following. 100 Most jurisdictions consider some distinctions more invidious (to use the US term) than others. Sex/gender is usually one of the grounds that raise suspicion. In the EU, the specially protected grounds can be found in the competence provision of Art. 19 Treaty on the Functioning of the European Union; in the South African Bill of Rights, they are listed in Art. 9(3); in the US the list is case-law based (and sex is subject to intermediate scrutiny). 101 This part of the test exists separately only in South Africa (among the jurisdictions I am looking at). See S v. Jordan. 102 This question is about justification (in the US terminology) it enquires after the reasons this distinction has been made by the government. In most cases, this is a judge-made part of the test. In some cases, the general rule on limitations of rights in used in South Africa, it is Art. 31(1), which states that [t]he rights [] may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. 103 Proportionality is a test used by the ECtHR and the CJEU. Gerards, 209 and following and 223 and following respectively. In the US the requirement on the relationship between the measure and the aim depends on the standard of scrutiny. 104 State v. DeVall, 302 So. 2d 909, 910 (La. 1974) (quoting La. Rev. Stat. Ann. 14:82 (West)), as quoted in MacKinnon, 'Prostitution and Civil Rights', 16. 105 ibid, citing DeVall, 302 So. 2d at 913. For a discussion see also J Lefler, 'Shining the Spotlight on Johns: Moving Toward Equal Treatment of Male Customers and Female Prostitutes' (1999) 10 Hastings Women's Law Journal 11, 24. 106 Two years after DeVall, the US Supreme Court ruled to this end in Craig v. Boren U.S. Supreme Court 429 U.S. 190 (1976).

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is difficult to imagine a government policy on prostitution that would require a distinction to be made between the sexes in regulating prostitutes. As such, the provision should fail any test of legitimate aim (justification). It is safe to say that most statutes today (at least in the European and common law jurisdictions I refer to in this paper) use gender neutral formulations. Neither do they distinguish between male and female prostitutes, nor do not identify prostitutes as female and clients as male. A more common problem would be that of indirect discrimination the different treatment of prostitutes (a group consisting mostly of women) and clients (a group constituted mostly by men). Comparability and/or justification Another important question is whether there are differences between the groups that warranty the difference in treatment. This is in some jurisdictions framed as a question of comparability, in others as a question of justification.107 This question was famously discussed in the South African case S v. Jordan, which concerned a constitutional challenge to the provisions of the Sexual Offences Act that criminalized providing sex for reward (selling sex), but did not explicitly criminalize paying the reward for sex (buying sex).108 The courts majority did not find that this discriminated unfairly against women. The main argument for lack of discrimination was that the client was at any rate criminally liable as an accomplice and conspirator (under the Riotous Assemblies Act). The fact that the prostitute was the primary offender was accepted on the basis that there were substantive differences between the prostitute and the customer which warranted this. The majority pointed out that the prostitute was, first, more likely to be a repeat offender. Second, it identified the prostitute as the merchant and dealer and the client as the customer and likened prostitution to other areas, such as the sale of dangerous weapons, medicines and liquor.109 It considered both the potential higher stigma on the prostitute,110 as well as disparate enforcement111 of the provisions as irrelevant. The dissenting minority disagreed with this representation. As their argument is thorough and persuasively addresses the important question of comparability, it is worth repeating here. The minority saw only three differences between the prostitute and the client: The first is that the one pays and the other is paid. The second is that in general the one is female and the other is male. The third is that the ones actions are rendered criminal by section 20(1)(aA) but the others actions are not. Moreover, the effect of making the prostitute the primary offender directly reinforces a pattern of sexual stereotyping which is itself in conflict with the principle of gender equality. The differential impact between prostitute and client is therefore

107 108

See fn 99 above. For a description of the case see fn. 6 above. 109 Para 10. 110 The majority commented: If the public sees the recipient of reward as being more to blame than the client, and a conviction carries a greater stigma on the prostitute for that reason, that is a social attitude and not the result of the law. Para 16. 111 The majority commented: What happens in practice may therefore point to a flaw in the application of the law but it does not establish a constitutional defect in it. Para 19.

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directly linked to a pattern of gender disadvantage which our Constitution is committed to eradicating.112 As far as the criminalization of the client as accessory or conspirator is concerned, the minority conceded that [t]he difference between being a principal offender and an accomplice or co-conspirator may have little impact in formal legal terms, however, it saw an important difference in social stigma and impact.113 The dissenting judges argued that [i]n imposing a direct criminal liability for the prostitute, the law chooses to censure and castigate the conduct of the prostitute directly. [] The primary crime and the primary stigma lie in offering sexual intercourse for reward, not in purchasing it.114 Unlike the majority, the minority was very concerned about the context and the social reality of prostitution: The female prostitute has been the social outcast, the male patron has been accepted or ignored. She is visible and denounced, her existence tainted by her activity. He is faceless, a mere ingredient in her offence rather than a criminal in his own right, who returns to respectability after the encounter. In terms of the sexual double standards prevalent in our society, he has often been regarded either as having given in to temptation, or as having done the sort of thing that men do. Thus, a man visiting a prostitute is not considered by many to have acted in a morally reprehensible fashion. A woman who is a prostitute is considered by most to be beyond the pale. The difference in social stigma tracks a pattern of applying different standards to the sexuality of men and women.115 In the present case, the stigma is prejudicial to women, and runs along the fault lines of archetypal presuppositions about male and female behaviour, thereby fostering gender inequality.116 The primary criminalisation of the prostitute, according to the dissenting judges, reflects and reinforces harmful social prejudices against women and stems from and perpetuates gender stereotypes117. The dissenting judges identify one very important element of the reality of prostitution which shows a particular vulnerability and should be considered in a legal response the social meaning of prostitution, which is in most societies stigmatizing to the prostitute. I will argue that there are (at least) three aspects of the phenomenon of prostitution which are important to any equality analysis: 1) the (already mentioned) social meaning of prostitution; 2) the risk of harm in prostitution; and 3) the de facto economic, gender, age, race and other inequalities between the client and the prostitute. Social meaning of prostitution As far as the social meaning of prostitution is concerned, I would borrow the understanding of social meaning from Jon Herrings and Michelle Madden Dempseys
112 113

Para 60. Para 63. 114 Para 63. 115 Para 64. 116 Para 65. 117 Para 65.

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analysis of sexual penetration.118 Social meaning according to them is not based on an intention or purpose of the individual man/client (or sufficient majority of men/clients) or the experience or registering by the individual woman/prostitute119 (or sufficient majority of women/ prostitutes). It means that one of the current social meanings of penile sexual penetration under current social conditions can only credibly be explained as devaluing women qua women and disrespecting womens humanity.120 They use examples of the language which we use to describe the act of sexual penetration (fuck, bang, screw, rail, drill, smash, hit it, hump, let her have it, poke shaft, slay, etc.121) and the depictions of it in literature, film, advertising, television, pornography and internet discourse122 to support this claim. As sexual intercourse, often in the form of penile penetration, is a core element of prostitution, this analysis applies to prostitution as well. 123 Prostitution, however, has further degrading, devaluing and disrespecting social meanings as whores and sluts engage in sexual contact repeatedly and for money. While Jon Herring and Michelle Madden Dempsey use their analysis to argue that sexual penetration is a prima facie wrong which requires justification as a preliminary analysis for construction of criminal offences,124 I would use it to argue, together with the dissenting judges in S v. Jordan, that it is wrong for any law to be complicit or partly constitutive of invidious social standards sexual stereotypes which degrade the prostitute.125 The risk of harm in prostitution Courts (including the majority in S v. Jordan) have in the past allowed a harsher treatment of prostitute based on their understanding of prostitutes as merchants or dealers,126 or as profiteers in commercial crimes127, and they have used the analogy to drugs, liquor and arms.128 There are fundamental differences between prostitution and the drug trade in the potential harm to the consumer. A drug dealer sells a product that is potentially deadly and addictive. The same can be said of alcohol and at least the former for arms. The only potential physical harm to the customer in prostitution is that resulting
118

M Madden Dempsey and J Herring, 'Why Sexual Penetration Requires Justification'27 (3) Oxford Journal of Legal Studies 467, 482 and following. 119 The point that an individuals perspective can not alter the social meaning of prostitution is shared by many authors. Laurie Shrage writes: Although the prostitute may want the meaning of her actions assessed relative to her own idiosyncratic beliefs and values, the political and social meaning of her actions must be assessed in the political and social context in which they occur. Shrage, 358. This argument is highly relevant for the debate about who (i.e. which zone white/grey/black) to base the legal regulation of prostitution on. 120 Madden Dempsey and Herring, 485. 121 ibid, 485. 122 ibid. 123 It can possibly be a matter of discussion whether the social meaning of prostitution disrespects women qua women or women qua the gender associated with prostitutes. 124 They conclude that a man who penetrates the vagina or anus of a woman with his penis commits a prima facie wrong in virtue of the negative social meaning of the conduct, Madden Dempsey and Herring, 488. 125 S v. Jordan, para 72. 126 Which we have just seen in S v. Jordan. 127 This narrative is not uncommon in court decisions in the US, for example in the decision of the California Supreme Court in People v. Superior Court, 19 Cal. 3d 338 (1977), as cited in Lefler, 20-21. 128 S v. Jordan, para 10; ibid, 21.

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from sexually transmitted diseases (STDs) and here both sides of the transaction share the risk (and the blame) at least equally. In prostitution, it is the seller who risks harm. Empirical research has shown that there is a serious risk of harm to the prostitute that is not faced by the client (on the contrary, is often inflicted by him).129 While the sex work position disagrees with the conceptualization of prostitution as inherently130 constituting violence against women, there is little dispute that violence does happen to prostitutes.131 There is a very high risk of both physical harm (in the form of beating, whipping, rape, other forms of sexual assault and even murder) as well as psychological harm (whether resulting from the physical abuse,132 or connected to frequent verbal abuse). In assessing comparability and justifications of different treatment, this risk of harm which only exists for one party should be taken into account. De facto inequalities between clients and prostitutes The above mentioned rhetoric of prostitutes as merchants, dealers or profiteers in commercial crimes contains, to my mind, the underlying assumptions that the prostitute is in it for the money and has the upper hand. Both beg refutation. First, even some sex work proponents admit that prostitution is not viewed as a desirable occupation, but as a strategy to get by.133 The aim of many prostitutes is not to get rich, but to earn to necessary support for themselves and often their families. Former sex worker Amber Hollibaugh writes: The bottom line for any woman in the sex trades is economics. However a woman feels when she finally gets into the life, it always begins as survival - the rent, the kids, the drugs, pregnancy, financing an abortion, running away from home, being undocumented, having a 'bad' reputation, incest - it always starts at trying to get by.134 This is connected, second, to the question of the upper hand. While it is the dealer in the drug industry who can dictate the price and has the power over a desperate drug addict customer, the situation in prostitution is rather the reverse it is the prostitute who needs the money and has little power and control of negotiation over price and other conditions.135 Moreover, when there is a pimp involved, the control over the transaction
129 130

See especially the summary of existing evidence by Melissa Farley. Farley. See the difference drawn above between paid-for and unpaid-for violence. 131 See for example B Anderson and J OConnell Davidson, 'Is Trafficking in Human Beings Demand Driven? A Multi-Country Pilot Study' (2003) IOM Migration Research Series http://www.compas.ox.ac.uk/fileadmin/files/pdfs/Bridget_Anderson/BA1_Anderson%20IOM%20report.pd f (9 July 2010). 132 Farley cites studies that place prevalence of post-traumatic stress disorder (PTSD) at 78 80 %. Farley, 117. 133 Anderson and OConnell Davidson, 46. 134 A Hollibaugh, 'On the Street Where We Live'(5) Women's Review of Books 1 as cited in C Overall, 'What's Wrong with Prostitution? Evaluating Sex Work'17 (4) Signs 705. 135 The socialist feminist Christine Overall summarizes: The inherent asymmetrical exchange in sex work, in which some persons sell sexual services to others, provides the context for other forms of asymmetry, all of them with important implications for its moral assessment. Prostitution is a classist, ageist, racist, and sexist industry, in which the disadvantaged sell services to those who are more privileged. It is classist because for the most part it uses the sex labor of poor and disadvantaged persons largely for the service of those with disposable income to spend on sexual gratification. It is ageist because it recruits and preys upon

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and the earnings are even less in the hands of the prostitute; when there is a trafficker involved, she does not even have control over being in prostitution. In such situations, she is clearly not in the position of the profiteer or the merchant. This insight into the economic reality of prostitution is also present in the dissent in the S v. Jordan case: We see no reason why the plier of sex for money should be treated as more blameworthy than the client. If anything, the fact that the male customers will generally come from a class that is more economically powerful might suggest the reverse.136 While different feminist positions might disagree on what is the primary axis of disadvantage, they agree and have shown the vulnerabilities of prostitutes, connected to gender, class, race, age, socio-economic status, etc. Substantive equality Before looking closer at the three proposed scenarios, it is worth mentioning that my analysis is based on a substantive understanding of equality.137 Substantive equality goes beyond the formal requirement of treating likes alike. It is context-conscious and reacts to the actual realities which the individuals or groups find themselves in. Substantive equality allows for different treatment for the benefit of the individual or the group that is worse off; culturally, socio-economically, in terms of respect, in terms of representation, etc. This approach has been explicitly adopted by various courts138 and by the minority in S v Jordan. I argue that it is also implicit in any jurisdictions acceptance of affirmative action (or positive action in European terminology). The logic of affirmative action is that while difference in treatment is unjust if it is for the benefit of the de facto stronger side, it can be justified if it benefits the weaker party. I argue that this rationale should apply to prostitution as well. My argument is that the client and prostitute are sufficiently similar, in being parties to the same transaction, in order for a requirement of formal equality to apply (i.e. they should be at least treated equally symmetrically), but that they are also sufficiently different, in terms of social meaning, risk of harm, and de facto inequality, to justify an asymmetric treatment benefiting the prostitute. Justifications We already looked at the justification of stricter treatment of prostitute on the basis of her being the merchant, dealer or profiteer. It is however possible that specific measures will have specific legislative aims; a government might for example try
very young people, often people who are still children, and discards them when they are past the artificially created stage at which they are considered sexually attractive. It is racist because it often victimizes black and Asian women and thrives on race stereotypes of sexually insatiable yet subservient women of color who exist only to serve the sex needs of whites. Last, and most important, it is sexist because it is an industry in which, for the most part, women are exploited for the purpose of serving men's desires. Overall, 716-717. 136 S v. Jordan, para 68. 137 For definition see S Fredman, Discrimination law (Clarendon, Oxford 2002); see also discussion of Andrews approach in MacKinnon, Sex equality , 25. 138 For example Judgment of the Supreme Court of Canada, Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.

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to justify obligatory health checks by public health concerns. An important distinction to be made from the perspective of the equality test here is between the legitimacy and justifiability of the aim on one hand and the proportionality of the measure (especially its suitability/appropriateness and necessity139) on the other. While the aim might be legitimate, a careful examination will often show that a measure is not suitable to achieve it. It will often fail the test of narrow tailoring by being under- or over-inclusive. Let us take the example of the one-sided prostitutes obligation to undergo health checks, which was contained for example in the Czech 2005 proposal. The specific goal of the measure was to prevent the spread of STDs. This is a laudable, legitimate legislative aim. The question is whether targeting only the prostitute is an appropriate way of achieving it, however. Experience from various countries shows that compulsory health checks make the client feel safer to practice unprotected sex, 140 resulting in a serious danger to the health of the prostitute.141 As a consequence, obligatory healthchecks seem more of a consumer protection measure for the benefit of the client than genuine public health protecting measure that stops STDs from spreading. As a result, it fails the suitability test. Other ways of addressing public health should be sought. This rigorous examination of suitability and necessity would uncover many other measures as inappropriate for the proclaimed aims of public health, public order, public morality, etc. Final remark on justification should be made. The true reason for targeting the prostitute is often that of enforcement practicality. In the decriminalization with state control regimes, the prostitute is registered and she is much more easily accessible. In any other regime as well, she can be easily found at her usual workplace. The same can not be said of the client. As a result, she is the easier controllable side of the transaction. Enforcement practicality, I believe, has to be discarded when presented as a justification when the equality of the sexes (a suspect characteristic that is given special protection) is at stake. The prohibition of discrimination is in place precisely so that legal regulation does the right thing and not the easy thing. Laws should not be made to suit enforcement. Ideally, full and effective enforcement would follow. However, I also support the notion that a legal rule, especially when promoting gender equality, still has an important symbolic value, even if in practice not often applied. Some examples for the three scenarios As far as asymmetric treatment benefiting the client is concerned, the legal provisions can either foresee rules that only apply to prostitutes and not clients (for example the sole criminalization of selling of sex142), or the rules can apply differently to the prostitute and the client, being stricter on the prostitute. More serious offences and harsher sanctions for the prostitute are still common in criminal law, 143 for example in the
139

For more on proportionality in the European context, see E Ellis (ed), The Principle of Proportionality in the Laws of Europe (Hart Publishing Oxford; Portland (Oregon) 1999). 140 N Lopez-Jones, 'Legalising brothels'1 The New Law Journal 594, 594. See also H Malinov, 'Pipomnky organizace R-R k Nvrhu zkona o regulaci prostitutce Zastupitelstva hlavnho msta Prahy (Suggestions of R-R to the Proposal of an Act on Regulation of Prostitution by the Municipal Assembly of the Capital City of Prague)' (2008) www.rozkosbezrizika.cz/.../35_zakon_regulace_prostituce_pripominky_rr.doc (25th July 2009) 141 Farley, 138-139. 142 This was the subject in the South African S v. Jordan case. 143 Julie Lefler cites several examples of different criminal sanctions from the US. Lefler, 17 and following.

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Czech 2005 proposal, which foresaw criminal punishment for repeated prostitution without licence for the prostitute, but none for repeated use of prostitutes without license for the client. Not only criminal law needs scrutiny, however, but other regulation as well - administrative, police, social or health law.144 The Czech 2005 proposal foresaw obligatory registration and information duties vis-a-via various public authorities on the prostitute, obligatory health checks for the prostitutes and not clients, and more activity restrictions for the prostitutes the breach of which created liability and were punishable by fines. As I argued above, this asymmetric approach is indirectly gender discriminatory and should be abandoned. What would be the symmetric approach then? The two options are levelling down and levelling up. Levelling down, to continue the example of public health protection, would be to not create an obligation to undergo health checks for anybody. This is currently the case in the Czech Republic but also under the Dutch model where no health checks are required of anyone. Levelling down could be considered preferable, as it means less state control and prosecution of the prostitute. Levelling up would mean creating an obligation also for the client. What would the asymmetric approach look like? Creating an obligation specifically and only for the client could for example take the form of obligatory use of condoms by clients with liability for non-compliance. Creating any obligation on the client (either that of health checks or condom-use) might seems impractical. Should clients also have cards and regularly visit the doctor? How could public authorities ever check use of condoms? Here we come back to the enforcement practicality argument. As I said above, even an apparently impractical obligation might be worth creating for its symbolic value. It is foreseeable that while the requirement of symmetric approach would be supported by most feminists, the asymmetric approach benefiting the prostitute would be more popular with the sexual domination proponents. After all, a prime example of it is the Swedish model the sole criminalization of the client. Among other tried or proposed measures (suitable in a system where some aspects of prostitution are a criminal or an administrative offence) are car forfeiture or revocation of drivers licences (when clients are caught kerb-crawling), publication of names of clients in various media, educational programmes for clients, or the institution of civil causes of action for prostitutes against clients (but especially procurers).145 In a decriminalization system, the asymmetric approach might imply addressing all legislative goals through the client and not the prostitute. For example, public health could in part be addressed by the above mentioned obligatory use of condoms by clients with liability for non-compliance, public order issues with anti-kerb-crawling measures, and public morality with the publication of names of clients in various media. The primary of this article was however not to propose either of these measures, but show the gender equality test that should guide their assessment.

144

Julie Lefler, who provides a convincing case for equality within criminalization, is here overoptimistic when she states that obviously legalization or decriminalization would obviate the need for a discussion of differential treatment since neither male patrons nor female prostitutes would be within the grasp of the justice system. ibid. 145 For an analysis of these measures or proposals, see ibid, 26-34.

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Conclusions This paper presented an argument that an asymmetric preferential treatment of the client of a prostitute is in breach of the principle of gender equality. It proposed that at least a minimum standard of symmetric equal treatment of both parties needs to be observed, but argued that an asymmetric approach for the benefit of the prostitute is justified. It supported this position by arguing that while client and prostitute are sufficiently similar, in being parties to the same transaction, in order for a requirement of formal equality to apply (i.e. they should be at least treated equally symmetrically), they are also sufficiently different, in terms of social meaning of prostitution for the prostitute, risk of harm, and de facto inequality, to justify an asymmetric treatment benefiting the prostitute. This analysis, it is hoped, could serve as a basis for greater concern for the well-being of prostitutes in applying existing legal frameworks, in adopting their changes and amendments, and in their judicial review.

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