LEGALIZING SEX WORK; PROTECTING OR INFRINGING WOMEN'S RIGHTS?
While researching for this article, I stumbled across several stories of women who voluntarily entered the sex work industry. Consent is perhaps the most critical aspect of this highly contentious issue. And I say contentious because people often fail to keep separate religious and personal beliefs from the individual freedom of choice. Let us talk about the Wolfenden Report of 1957. It recommended the legalization of prostitution and homosexuality, which is honestly startling. Because we are in 2020, and we still have laws criminalizing them. In some countries, it often amounts to life imprisonment, the death penalty, and even death by stoning. While sexual assaulters habitually get away with a slap on the wrist yet, states continue to prosecute for self-expression, gender identity, and sexual orientation. So, to see a report suggesting legalization amid the social setting of 1957 can indeed be hailed as progressive. But Lord Patrick Devlin vehemently opposed it. He was outraged by even the thought of it. Following Burkean theory, he was sure that it is accepted norms, orthodox beliefs, and traditions that governed civilization and held it together, acting as a social glue. He was a staunch supporter of integrating law with the then-current moral fabric of society. However, the incorrect assumption here is that your moral compass and beliefs are common standards to judge societal morality.
People forget that we don’t live in a world sponsored by Disney. We don’t have everything the way we want. The diversity we incorporate is bound to have antagonistic opinions, and one person’s moral spectrum might be another’s immoral spectrum.
But there exist two classes of issues; one is where you’re entitled to the liberty of diverse opinions. The second is where you have the liberty of a different view, but that also makes you an ist. If we were to take an elementary example,
1. Should pineapple be on pizza: You can probably argue all day long about why you might or might not loathe this combination.
2. But you don’t get the privilege of advocating for racism and legitimizing it as a diverse opinion. You’re simply a racist.
That is precisely the case with public morality. And unfortunately, it often identifies within the second bracket. Such righteousness is exercised by coercively imposing one’s principles, by denying others their right of choice, and all in all, raising yourself to a platform titled, ‘superior morality police’ because every third person disagrees with you. But the law should be independent, bereft of the influence of any such morality.
The question here is about women’s rights, and as far as rights go, bodily autonomy is incorporated within them. So, yes, a law that prohibits the selling of sex does infringe upon women’s rights. I’m neither justifying nor discussing the questions about how legalizing sex work may promote trafficking; inefficient laws regulating sex work might open up possibilities for trafficking rings. Or a million other worries related to the legalization or criminalization of sex work. Because the issue at hand is libertarian in nature, we’re speaking about individual rights and individual freedom.
It is a polar question. A simple yes or no suffices. Do you support bodily autonomy?
The reason I started with consent is that the term ‘sex work’ has become so synonymous with exploitation that we often forget that laws prohibiting sex work also encroach on women’s rights. Major legislative frameworks have categorized sex work under this umbrella of sex trafficking exploitation that they fail to accord recognition to consensual sexual activity amongst adults.
I. The United Nations Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (1949) of 2 December 1949 adopted by its General Assembly states says in its preamble that “Prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person.”
II. The United Nations 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) asks states to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”
Sex work is a legitimate form of labour. And we cannot confuse it with trafficking. In the strictest sense of law, people should have the right over their bodies and the right to engage in sex work as any other profession.
A. If we are considering a law that prohibits sex work under the guise of empowerment. What is the scenario we’re left with?
Anything illegal isn’t non-existent, so when sex work isn’t legal, people have to live in fear of being caught continually. Following the basic economic principle of demand and supply, this industry exists because the demand for it exists. Such a law will push most of these workers underground, where their safety and security are yet more compromised. When criminalized, one doesn’t even have the option of remedy.
They shy away from the police because it puts them at risk. Many would present the counterargument that a law criminalizing sex work would enhance protection for those forced into it. About how the criminalization of sex work is for the greater good, to shelter underage girls, to eliminate traffickers, and entire lists of reasons. But do they consider that there have been so many instances wherein victims of trafficking were prosecuted because it was a criminal offense?
Such an umbrella criminalization is doing more harm than good. This is saying that the law will protect underage girls who did not fall prey to trafficking rings while indicting those who did. It is transforming victims into criminals and ironically punishing them for suffering. How do we expect to champion the cause of women’s rights when our solution is incarceration and not rehabilitation for those who are stuck in this vicious cycle?
B. Let us consider a scenario where sex work is decriminalized?
It avails similar benefits from laws and mechanisms that protect individuals engaged in other forms of labour. They acquire rights and regulations regarding medical care and testing, therefore, reducing the risk of STD’s, to form unions, the right against sexual violence and rape. Though it is wholly outrageous, there have been occurrences where sex workers couldn’t claim or accuse rape owing to the nature of their work.
In case of sexual abuse or violence, there’ll be the option of approaching law enforcement. The police will legally be required to look into complaints if any grievance is lodged against a client. State control over the management of brothels and proper licensing helps regulate the age limit in eliminating traffick rings that operate under the façade of brothels.
As of right now, most complaints result in harassment and victim shaming of sex workers. Like in India, prostitution is legal, but it can’t be institutionally practiced. Soliciting in public places, pimping or owning, and management of brothels aren’t allowed.
Yourstory documented real-life experiences of sex workers in Bengaluru, India.
Anupama, speaking of the plight of her friend Meghna, says,
“Meghana was recently taken to the police station under the pretext of giving her a chance to lodge a complaint against a client. But once she got there, they charged her with a false case of violence (she is loud and outspoken) and jailed her for six days during which she was also beaten.”
Comparing two scenarios, I see the pathetic state of women in one and the protection of rights. It would be naivety to assume that violence and risk aren’t a part of the sex work industry, forgetting criminalization or decriminalization for a minute. But what does a law prohibiting it does, except make it more dangerous?
Another popular counterargument is sex work reiterates patriarchal norms. And thus, infringes on the advancement of women’s rights. That is only in cases that involve an abuse of power or vulnerability. But if a woman enters the industry to meet her expenses entirely out of her own accord, consensually, then why is it considered an abuse of vulnerability? If the same woman works shift after shift in a minimum wage job, running herself ragged, it is deemed to be hard work and struggle. To me, that situation seems to exploit the vulnerability in more ways than consensual sex work ever does. The minimum wages are set so low that it’s challenging to maintain a decent standard of living with it. It’s a vicious cycle of poverty, and the most significant advantage to employers is that there are always more people willing to work at lower wages. One could probably earn more in a day in the sex work industry working a lesser number of hours than what they'll make in a week working a minimum wage job in multiple shifts. Just because one form of work is the selling of sex, it somehow becomes exploitative, while capitalist policies benefiting off underpaid hard work aren’t. Why? Because it doesn’t involve the sexual use of the body?
This argument in itself is naïve and contradictory because every point from patriarchal norms, suppression of female sexuality, to the treatment of women as sex objects are perpetuated by laws that prohibit the selling of sex. As long as legislation refuses to recognize the legitimacy of sex work, consent never becomes part of the equation. Sexual violence becomes normalized, and means of remedy are non-existent. So, indeed the sequence of patriarchy continues because it preys on helpless women who don’t enjoy the support of the state and its laws.
However, a law that doesn’t prohibit sex work accords them the freedom to ensure that their dignity is protected; they work on their terms. Consent becomes paramount because, in a state-recognized profession, in the absence of consent, it legally becomes rape. Women have the freedom to express their sexuality. If we perceive the expression of female sexuality in itself to be emancipating, then why is it restricted to instances wherein it can or cannot be empowering, keeping in mind the totality of consent. And if we don’t perceive it as empowering, how can we even argue about patriarchal stereotypes when we are its sponsors.
Another popular argument is of those countries or areas where trafficking is widespread. And the need for tough criminalization, but the only thing it does is to arrest young girls coerced into the industry alongside a small number of traffickers. The state’s inefficiency to reduce and capture traffickers shouldn’t be borne by those who need to be supported to escape the horror. It shouldn’t be borne by people who want to practice sex work of their own free will because it is their right.
I firmly believe in the legalization of sex work to genuinely protect women’s rights. Not just to perpetuate false notions under the pretext of female liberalization.