The Subject of Prostitution

Sex Work, Law and Social Theory

Jane Scoular

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9780415792271
• eBook ISBN: 9781317696452
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Subject of Prostitution offers a distinctive analysis of the links between prostitution and social theory in order to advance a critical analysis of the relationship of law to sex work.

Using the lens of social theory to disrupt fixed meanings the book provides an advanced analytical framework through which to understand the complexity and contingencies of sex work in late modernity. The book analyses contemporary citizenship discourse and the law's ability to meet the competing demands of empowerment by sex workers and protection by radical feminists who view prostitution as the epitome of patriarchal sexual and economic relations. Its central focus is the role of law in both structuring and responding to the 'problem of prostitution'. By developing a distinctive constitutive approach to law, the author offers a more advanced analytical framework from which to understand how law matters in contemporary debates and also suggests how law could matter in more imaginative justice reforms. This is particularly pertinent in a period of unprecedented legal reform, both internationally and nationally, as legal norms simultaneously attempt to protect, empower and criminalise parties involved in the purchase of sexual services. The Subject of Prostitution aims to overcome the current aporia in these debates and suggest new ways to engage with the subject and law.

As such, The Subject of Prostitution provides an advanced theoretical resource for policymakers, researchers and activists involved in contemporary struggles over the meanings and place of sex work in late modernity.

Chapter 1The subject of prostitution: an introduction

DOI: 10.4324/9781315778433-1

Gender equality will remain unattainable so long as men buy, sell and exploit women and children by prostituting them … Prostituted persons are the weaker party, exploited by both the procurers and the buyers … By adopting the legislation Sweden has given notice to the world that it regards prostitution as a serious form of oppression of women and children and that efforts must be made to combat it. (Swedish Government 2003)

The Supreme Court of Canada has struck down the country's major prostitution laws, saying that bans on street soliciting, brothels and people living off the avails of prostitution create severe dangers for vulnerable women and therefore violate Canadians’ basic values. (Fine 2013)

A New Zealand prostitute has won substantial damages for sexual harassment by a brothel owner … ‘Sex workers are as much entitled to protection from sexual harassment as those working in other occupations’, the ruling said. New Zealand Prostitutes Collective national coordinator Catherine Healy told Fairfax News the decision showed New Zealand had become a world leader in sex workers’ human rights after legalising prostitution in 2003. ‘It's one up for decriminalisation, it's a significant ruling because it could never have happened when sex work was illegal.’ (ABC News 2014)

Overview

As these accounts, taken from recent press accounts and government reports, demonstrate, prostitution is, at the beginning of the twentieth-first century, characterised and governed in strikingly different ways. Fiercely polarised battles have emerged between those who, on the one hand, view the practice as a form of sexual violence, and as a form of exploitation and, on the other, those who regard the activity as work like any other, as a form of sexual labour that individuals have a basic human right to engage in (safely).

What is striking about this current debate is not only the seemingly mutual incompatibility of each perspective (according to the current orthodoxy, prostitution can only ever be either the epitome of modern day slavery or the expression of a fundamental human right, of sexual freedom and economic liberty – but never both) but also the central role that law is assigned in adjudicating between these competing constructions. Although each side disagrees vehemently on the very meaning, and, indeed, morality of commercial sexual exchange, they are united in their belief that law is the panacea to this Solomonic dilemma. Whether by criminalising the purchasing of sex or by providing increased rights and labour recognition for those in the sex industry – law, it would seem, is the answer. Yet is it?

In this work, I take a step back from the issue as it is currently presented and question the central role of law in framing and responding to the subject of prostitution. This book asks the critical, yet often overlooked, question of how law matters in contemporary sex work. Is law simply a neutral arbiter that comes down from above to ordain the right normative answer to this moral dilemma, or, is this presentation of ‘the law’, as a singular sovereign power, part of the very problem that many seem to want to ‘resolve’?

The latter is very much my contention as I seek to challenge formalist accounts and develop a constitutive approach to the subject of prostitution and to the subject of law. This reveals a more complex relationship between law, society and the subject that requires a reorientation of the search for justice as it shows that the insistence on ‘a’ legal solution to this issue can do more harm than good.

This work is motivated by fact that there is surprisingly little written on law in this area. I should clarify, of course, there is indeed a great deal written about law – calling for increased legal sanction, or conversely reduced legal intervention. There have also been myriad reports and studies describing the content of various laws, empirical studies of policing and a great deal of political rhetoric, yet these rarely engage with the discipline of law itself. Despite massive regulatory complexity, analysis has become ever more narrowed in a binary of legalisation/criminalisation with decriminalisation appearing to fall somewhere in between. Laws are described and debated at great length, but rarely are they analysed in more than these narrow analytical terms.

My methodology resists the legal centrism of formalist accounts, which, in assuming that the ‘law’ regulates prostitution, in a particular way according to its sovereign expression, overstates law's coherence (as if ‘law’ is a singular power), wrongly attributes ‘intention’ (as if ‘law’ has a controlling mind and is unified in its actions) and over-determines its influence (as if ‘law’ acts alone and not in the context of other discourses and actors).

By contrast, a constitutive approach sees law as an inseparable dimension of social relations. It looks beyond what law ‘says’ and instead examines what law ‘does’, as it operates alongside other discourses and practices to shape the subjects, spaces and forms of power in sex work.

Examining these social processes gives a greater insight into what law ‘does’ and the significance of legal processes, actors and norms in the context of a wider system of meaning as prostitution emerges as a problem of governance at particular times and spaces (Rose and Valverde 1998).

This analytical method helps to more clearly elucidate how law matters in contemporary societies, without either over-privileging it or rendering it obsolete (Agustín 2009) ¹ or ephemeral to other structures such as the economy (Bernstein 2010) or gender in radical feminist accounts (Jeffreys 1997a).

¹ See Scoular 2010, in which I argue that Agustín's 2009 claim that law did not matter while appearing as an example of post-structural evisceration is not an accurate post-structural account of the role of law in modern societies, which would recognise that law does matter but just not as formalist accounts describe.

In this book, I offer a genealogy of the modern subject of prostitution. Each chapter looks at the relationship between dominant constructions of the ‘problem of prostitution’ and the associated norms of regulation and governance, across various historical epochs. My attention to ‘history’ is necessarily selective as I focus on changing representations of prostitution as it moves from being depicted predominantly as an issue of sin, to being understood largely as a question of public health, to more recent portrayals as the epitome of gendered violence and as an issue of sex workers’ rights.

Such an analysis is particularly pertinent, in a period of unprecedented legal reform, both internationally and nationally, as legal norms simultaneously attempt to protect, empower and criminalise parties involved in the purchase of sexual services. These feature, at their most reductive, on one side, a flat victimised subject that dictates an abolitionist approach pitted against a hyper mobile rights-bearing subject that appears to prescribe legal recognition and rights.

This book intervenes in the debate and questions whether, in the context of modern governance, these approaches are as distinctive as they appear. By asking how law matters, this book offers a way out of the current political and analytical impasse. It analyses law's ability to meet seemingly competing demands for protection, made by radical feminists (who view prostitution as the epitome of patriarchal sexual and economic relations), and for empowerment, by those who advocate sex worker rights. It warns of the dangers of fixed positions and unproductive identity politics, and suggests a constitutive methodology as a means to radically rethink the relationship between the subject of prostitution and law and to break out of the current aporia of many contemporary politics and legal debates on sex work.

Introduction

This book considers the subject of prostitution. In the last 40 years, both the supply and demand for commercially available sexual services appear to have risen exponentially. The contemporary period has witnessed far reaching sociocultural changes, brought about by increased globalisation, technological advancement changing patterns of migration, the breakdown of previous political structures (such as nation states, borders and the ‘family’) and a loosening of traditional sexual mores – which have, it is claimed, not only served to increase the desire for commercial sex, but also optimised the conditions for its realisation (Bernstein 2007a: 188). The result is a highly visible and highly varied market in sexual services that is ‘ever more specialised, diversifying along technological, spatial and social lines’ (Bernstein 2007a: 115). Writers describe, and some denounce, an increasing ‘raunch culture’ (Levy 2005) and a seemingly ‘unbridled ethic of demand’, as ‘pornography, strip clubs, lap-dancing, escorts, telephone sex and “sex tours” in developing countries’ appear to be in inexhaustible and immediate supply, at the click of a button (Bernstein 2001: 389).

I use parentheses when presenting this account. While changes in late modern society have undoubtedly altered the meanings and increased the visibility of sex, which now includes a myriad of commodified and mediated forms, I dispute the frequently assumed correlation between these changes and a rise in real terms in the amount of sex sold. There are simply no reliable data to measure historical change in quantitative terms.

Such concerns are, of course, those of a social scientist, rather than those of a politician or activist. Many ideologically driven governments and campaigners habitually talk in exaggerated terms, citing vastly inflated figures, invoking metaphors of floods and epidemics (in both demand and supply), in order to rationalise and justify increased regulation. To give a typical example:

Germany has been flooded with foreign sex workers, mostly from Eastern Europe. Their sheer number, and willingness to accept lower rates, has driven prices so low one American punter, who takes three sex trips to Germany each year, calls the country ‘Aldi for prostitutes’.

(Diu 2014)

This story features familiar tropes commonly utilised in reports across many jurisdictions: EU accession is blamed for an ‘explosive increase in human trafficking’ (Der Spiegel 2013) and for having ‘triggered an apparently unstoppable growth in the country's sex industry’ (Diu 2014), with public services ‘like schools, housing and the NHS being stretched to breaking point’ as ‘vice girls flood in’ (Sheldrick 2014) ². The conclusion drawn from this apparent rise in sex work, is, of course, not that the presence of migrants (who for many reasons make up a large section of the industry) (Agustín 2007) may make prostitution more visible but rather that legalising the activity has failed and that tougher measures are required (Der Spiegel 2013).

² Another example comes from the Scotsman newspaper: ‘Organised crime groups flooding Scotland with Brazilian prostitutes’, which notes that: ‘Senior police sources say that in just two years they have seen a “several hundreds per cent” increase in the number of sex workers who are e...

Table of contents

• Cover Page
• Half Title Page
• Epigraph
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• 1 The subject of prostitution: an introduction
• 2 The prostitute subject as a metaphor of modernity: from sin to social problem
• 3 The object of prostitution and the pathological ‘punter’: problematising the purchase of sex in the twenty-first century
• 4 The prostitute as a rights-bearing subject
• 5 Reconstructing the subject of prostitution
• 6 Conclusion: moving beyond the subject of prostitution
• Bibliography
• Index