SHOULD PROSTITUTION BE LEGALIZED - COMMENTARY
By Human Rights Lawyer Dianne Post & Writer and Filmmaker Bishakha Datta
DIANNE POST is an international human rights attorney who spent 18 years representing battered women and children in family law, but since 1998 has been working internationally in 19 countries on genderbased violence. She is based in Phoenix, Arizona.
BISHAKHA DATTA is a writer and filmmaker based in India. Her most recent book is 9 Degrees of Justice, a collection of essays on struggles against violence on women in India. Her most recent documentaries include In The Flesh: Three Lives In Prostitution. Bishakha is the executive director of Point of View, a Mumbai non-profit that promotes women’s viewpoints through media, art and culture.
Legalized prostitution cannot exist alongside the true equality of women. The idea that one group of women should be available for men’s sexual access is founded on structural inequality by gender, class and race. Moreover, it is a violation of international law. In fact, failure to challenge legalized prostitution undermines every human rights norm mandating the dignity of the person and equality for all. As Melissa Farley says, ‘Decriminalizing or legalizing prostitution would normalize and regulate practices which are human rights violations, and which in any other context would be legally actionable (sexual harassment, physical assault, rape, captivity, economic coercion or emotionally damaging verbal abuse).’
In Sweden, prostitution is officially acknowledged as violence against women and a tool of oppression. ‘Legalization of prostitution means that the state imposes regulations with which they can control one class of women as prostituted’ (Gunilla Ekberg). Prostitution is not only individual discrimination, exploitation or abuse by an individual man, but also a structure reflecting and maintaining inequality between men and women. It requires ‘a devalued class of women… Prostitution is colonization of women.’ (Gunilla Ekberg) Legalization gives approval to violence, control and devaluation. When violence is directed at half the world’s population – women – it undermines the entire structure of human rights. The Swedish model calls for no arrests of women, no blaming of the victim, no use of the criminal justice system to control women, but appropriate use of the state system to control violence against women.
I see it somewhat differently. Individuals have sex for a wide range of reasons – for fun and pleasure, to have children, to mark and deepen intimacy, out of duty, to earn a living or for other transactional purposes. It is wholly legitimate for adults to have sex for any, some or all of these reasons, which sometimes overlap.
This is particularly striking in the Indian context, where I come from and where poverty is widespread. In 2010, the World Bank stated that 68.7 per cent of people in India live on less than $2 per day.1 We’re talking about more than 600 million people struggling to find a way to eat two square meals a day.
Some of them turn to sex work just as others turn to other badly paid forms of informal labour – domestic work, construction work, farm labour and so on. All these livelihood options are based on using one or more parts of one’s body. We legally accept individuals using their heads and hands and other body parts to earn a living and must do so in the case of sex workers too.
The International Labour Organization (ILO) accepted adult sex work as work in a groundbreaking 1998 report2 and called for its global recognition as a legitimate form of work. All other forms of informal labour are legally recognized as ‘work’ – it is high time that adult sex work also got this legal recognition, which is long overdue.
We need to listen to the voices of the women. In a five-country survey, over 90 per cent said they wanted to escape prostitution immediately. Nearly 70 per cent of prostituted women meet the criteria for a diagnosis of post-traumatic stress disorder and they constitute 15 per cent of all completed suicides. A Canadian report on prostitution and pornography concluded that girls and women in prostitution have a mortality rate 40 times higher than the national average. The average life span for a woman after entering prostitution is four years, with 50 per cent of the deaths due to murder.
In dangerous jobs, we fight to eliminate harmful conditions so people can work in safety. The danger cannot be removed in prostitution because the act of prostitution is the harm – Dianne
The average age of entry into prostitution is 13 or 14 years of age. Children learn very young that their body does not belong to them but to others with power and money. In Canada, 70 per cent of prostituted women are indigenous, despite those communities making up only seven per cent of the population. It’s colonialism writ small on their bodies.
In dangerous jobs, we normally fight to eliminate harmful conditions so people can work in safety and with respect. The danger cannot be removed in prostitution because the act of prostitution is the harm. Women in prostitution tell us clearly they want the same options in life that others have: a decent job, safe housing, medical care and psychological counselling. We need exit strategies that include drug treatment, education, training, housing and other support. The answer is to demand equality and equitable distribution of resources.
I completely agree that we should listen to the voices of women in sex work. And here’s what these voices are saying: in the first pan-India survey of 3,000 sex workers, about 71 per cent said they had entered sex work willingly. Many of these women, who are not organized, said they left other occupations because of low pay or the absence of regular work.3
The researchers say: ‘For those coming to sex work from other labour markets, they have often experienced equally harsh (or worse) conditions of highly labour-intensive work for much lower incomes. It is from these background cases that the significance of sex work as a site of higher incomes or livelihoods emerges.’4
When adult women say sex work is a form of livelihood or commerce rather than coercion, we need to put aside our discomforts and listen to them. When these women say that the harm in sex work comes not from the act of selling sex, but from the stigma and violence surrounding it because of its illegal and hidden nature, we must hear them.
When women say the harm in sex work comes not from the act of selling sex, but from the stigma and violence surrounding it because of its illegal nature, we must hear them – Bishakha
All over the world, women in sex work are demanding that adult sex work be decriminalized and that they be given rights, respect and recognition. That they be given the right to vote and access health services without stigma, that the cops do not harass them, that their complaints of violence be recorded. That they be given the right to be human, like anyone else.
I believe that the answer to poor jobs, low pay and harsh working conditions for women is not to consign them to a lifetime of abuse, but to fight for all women to have adequate education for decent jobs and for all people to have decent working conditions.
Prostitution is a symptom of the problem, not the problem itself. The problem is patriarchy, inequality, discrimination, inequitable distribution of resources, religious control and fear of women. We need to turn our focus from the symptom to the underlying problem. We can and must do better for women. We need to join hands and together face the real enemy.
The focus on stopping demand is one method that is gaining traction and has been proven successful. Equalizing political power is another approach. In countries where women have a higher percentage of political power, violence against women is lower. Boys must be raised differently. The White Ribbon campaign in Canada and a similar campaign in Mexico are bringing the message to men worldwide. Child sexual abuse and incest in the family and institutions like the church, sports clubs and the Boy Scouts must be eradicated.
‘Prostitution isn’t like anything else. Rather, everything else is like prostitution because it is the model for women’s condition’ (Evelina Giobbe, 1992). If we believe in a world where human rights reign and women and men share equal power and dignity, we cannot legalize prostitution and maintain structural inequality founded on gender, class and race.
I fully agree that all human beings should be entitled to decent work, not in the sense of morality, but in the sense of decent working conditions. As Richard Howard of the ILO recently asked: ‘Why is sex work not decent work?’ His answer: ‘I think criminalization is a key barrier that we face along with misinterpretation of religious doctrine and discrimination.’5
In Sweden, it is a crime to buy sex and this has adversely affected street sex workers. As one report says: ‘Swedish street prostitutes experience a tougher time. They are more frequently exposed to dangerous clients, while the serious clients are afraid of being arrested… They have less time to assess the client as the deal takes place very hurriedly due to fear on the part of the client… If the client demands unprotected sex, many of the prostitutes cannot afford to say no. Harassment by the police has increased and the clients no longer provide tip-offs about pimps, for fear of being arrested themselves.’6
In New Zealand/Aotearoa on the other hand, adult sex work is decriminalized. Without making it sound too rosy, removing the ‘criminal’ label does make it possible for sex workers to access rights and services. Removing this label makes it possible for a sex worker to complain to the police if she is raped. It makes it possible to get health services, like any other citizen. It seems such an obvious – and just – course of action from a human rights perspective that I just can’t understand why sex work has still not been decriminalized everywhere.
2. The Sex Sector: The economic and social bases of prostitution in Southeast Asia edited by Lin Lean Lim, International Labour Office, Geneva, 1998.
3. Nivedita Menon, Seeing Like A Feminist, Zubaan, Penguin 2012
4. Rohini Sahni and V Kalyan Shankar, The First Pan-India Survey of Sex Workers: Preliminary Findings
5. ‘The Oldest Profession: Is Sex Work Work?’ 26 July 2012 panel at International AIDS Conference, Washington DC
6. ‘The Swedish Sex Purchase Act: Claimed Success and Documented Effect’, by Susanne Dodillet and Petra Oestergren. Conference paper presented at the international workshop Decriminalizing Prostitution and Beyond: Practical Experiences and Challenges. The Hague, 3-4 March 2011.