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Article #6: Sex workers and civil rights

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The gap between the promise of civil gender-neutralized their prostitution
rights and the real lives of prostitutes laws --without having done anything to
is an abyss which swallows up prostituted gender-neutralize prostitution's
women. To speak of prostitution and civil realities.
rights in one breath moves the two into The cases that adjudicate equal
one world, at once exposing and narrowing protection challenges to
the distance between them. sex-discriminatory enforcement of
Women in prostitution are denied every prostitution laws extend this rationale.
imaginable civil right in every Police usually send men to impersonate
imaginable and unimaginable way, such tricks in order to arrest prostitutes.
that it makes sense to understand Not surprisingly, many more women than
prostitution as consisting in the denial men are arrested in this way. The cases
of women's humanity, no matter how hold that this is not intentional sex
humanity is defined. It is denied both discrimination but a good faith effort by
through the social definition and the state to get at "the sellers of sex,"
condition of prostitutes and through the "the profiteer." Sometimes the tricks are
meaning of some civil rights. even described by police as the women's
The legal right to be free from torture "victim." Courts seem to think the women
and cruel and inhuman or degrading make the money; in most instances, they
treatment is recognized by most nations are conduits from trick to pimp and the
and is internationally guaranteed. In money is never theirs.
prostitution, women are tortured through Sometimes the male police decoys wait to
repeated rape and in all the more arrest until the sex act is about to
conventionally recognized ways. Women are happen--or, prostitutes complain, until
prostituted precisely in order to be after it happens.
degraded and subjected to cruel and Another all-too-common practice is
brutal treatment without human limits; it arresting accused prostitutes, women,
is the opportunity to do this that is while letting arrested customers, men, go
exchanged when women are bought and sold with a citation or a warning. This too,
for sex. The fact that most legal has been challenged as sex
prohibitions on torture apply only to discrimination, and it sure sounds like
official torture, specifically torture by it. Yet this, courts say, is not sex
state actors, illustrates the degree to discrimination because male and female
which the legal design of civil rights prostitutes are treated alike or because
has excluded women's experience of being customers violate a different,
denied them. noncomparable, law from the one under
Security of the person is fundamental to which the women are charged. There are
society. The point of prostitution is to some men in prostitution, most (but not
transgress women's personal security. all) prostituting as women. You can tell
Every time the woman walks up to the you have walked into the world of gender
man's car, every time the man walks into neutrality when the law treats men as
the brothel, the personhood of women--not badly as women when they do what mostly
that secure in a male dominated society women do, and that makes treating women
to begin with--is made more insecure. badly non-sex-based. Of course, compared
Women in prostitution attempt to set with customers, prostitutes also more
limits on what can be done to them. But often fail to satisfy the gender-neutral
nothing backs them up. Pimps supposedly conditions of release: good money, good
do, but it shows how insecure name, good job, good family, good record,
prostitutes' lives are that pimps can good lawyer, good three-piece suit . . .
look like security. Nothing limits pimps, .
and, ultimately, anything can be done to Some states quarantine arrested women
their property for a price. As Andrea prostitutes but not arrested male
Dworkin has said, "whatever can be stolen customers. This, too, is not sex
can be sold." In rape, the security of discrimination, according to the courts,
women's person is stolen; in because the women are more likely to
prostitution, it is stolen and sold. communicate venereal diseases than the
Liberty is a primary civil right. men are. Where the women got the venereal
Kathleen Barry has analyzed female sexual diseases is not discussed; women are
slavery as prostitution one cannot get walking disease vectors from which men's
out of. A recent study of street health must be protected. This was before
prostitutes in Toronto found that about AIDS, but the reality remains--the
ninety percent wanted to leave but could recipient of the sperm is most likely to
not. If they are there because they become infected.
cannot leave, they are sexual slaves. These cases represent the extent to which
Need it be said: to be a slave is to be equal protection of the laws has been
deprived of liberty, not to exercise it. litigated for prostitutes. The disparity
To lack the ability to set limits on between the focus of this litigation and
one's condition or to leave it is to lack the civil rights violations inherent in
consent to it. At the same time, liberty prostitution is staggering. Behind the
for men is often construed in sexual blatant sex discrimination these cases
terms and includes liberal access to rationalize is the vision of equality
women, including prostituted ones. So they offer prostitutes--the right to be
while, for men, liberty entails that prostituted without being
women be prostituted, for women, disproportionately punished for it. As
prostitution entails loss of all that unprincipled as the losses in these cases
liberty means. are, if they had been won, this is the
The right to privacy is often included equality they would have won.
among civil rights. In the United States, Criminal laws against prostitution make
one meaning privacy has effectively come women into criminals for being victimized
to have is the right to dominate free of as women, yet there are no cases
public scrutiny. The private is then challenging these laws as sex
defined as a place of freedom by discrimination on this ground. Criminal
effectively rendering consensual what prostitution laws collaborate elaborately
women and children are forced to do out in women's social inequality; through
of the public eye. Prostitution is thus them, the state enforces the exploitation
often referred to as occurring in private of prostituted women directly. When legal
between consenting adults, as is marriage victimization is piled on top of social
and family. The result is to extend the victimization, women are dug deeper and
aura of privacy and protection from deeper into civil inferiority, their
public intervention from sex to sexual subordination and isolation legally
abuse. In prostitution, women have no ratified and legitimated.
space they can call off-limits to prying Disparate enforcement combines with this
eyes, prying hands, or prying other parts discriminatory design to violate
of the anatomy, not even inside their own prostituted women's Fourteenth Amendment
skin. right to equal protection of the laws.
Freedom from arbitrary arrest is also a This is not to argue that prostitutes
civil right. Criminal prostitution laws have a sex equality right to engage in
make women into criminals for being prostitution. Rather, prostitution
victimized as women, so are arguably subordinates and exploits and
arbitrary in the first place. Then these disadvantages women as women in social
laws are often enforced for bureaucratic, life, a social inequality which
turf-protective, funding, political, or prostitution laws then seal with a
advancement reasons --that is, criminal sanction.
arbitrarily, against women. The argument to decriminalize trafficking
Property ownership is recognized as a women has no such support.
civil right in many countries. Women in Disadvantage on the basis of sex directly
prostitution not only begin poor, they supports strict enforcement of laws
are systematically kept poor by pimps who against pimps, who exploit women's
take the lion's share of what they earn. inequality for gain, and against tricks,
They are the property of the men who buy who benefit from women's oppressed status
and sell and rent them--placing the civil and subordinate individual women skin on
right, once again, in the hands of their skin.
tormenters. Beyond eliminating discriminatory
Particularly in the United States, the criminal laws and enforcing appropriate
right to freedom of speech is cherished. ones, it is time the law did something
Prostitution as an institution silences for women in prostitution. Getting the
women by brutalizing and terrorizing them criminal law off their backs may keep the
so horribly that no words can form, by state from reinforcing their subordinate
punishing them for telling the truth status but it does nothing to change that
about their condition, by degrading status. The Thirteenth Amendment, which
whatever they do manage to say about applies whether or not the state is
virtually anything because of who they involved, may help.
are seen as being. The pornography that The Thirteenth Amendment prohibits
is made of their violation--pimps' slavery and involuntary servitude. It,
speech--is protected expression. and its implementing statutes, was passed
One civil right is so deep it is seldom to invalidate the chattel slavery of
mentioned: to be recognized as a person African-Americans and kindred social
before the law. To be a prostitute is to institutions. Its language that slavery
be a legal nonperson in the ways that "shall [not] exist" gives support to its
matter. What for Blackstone and others affirmative elimination. The Thirteenth
was the legal nonpersonhood of wives. is Amendment has been applied to invalidate
extended for prostitutes from one man to a range of arrangements of forced labor
all men as a class. Anyone can do and exploitive servitude. The slavery of
anything to you and nothing legal will be African-Americans is not the first or
done about it. John Stoltenberg has shown last example of enslavement, although it
how the social definition of personhood has rightly been one of the most
for men is importantly premised on the notorious. To apply the Thirteenth
prostitution of women. Amendment to prostitution is not to
Prostitution as a social institution equate prostitution with the chattel
gives men personhood--in this case, slavery of African-Americans but to draw
manhood--through depriving women of on common features of institutions of
theirs. forcible inequality in the context of the
The civil right to life is basic. The Thirteenth Amendment's implementation.
Green River murders, the serial murders Compared with slavery of
of women in Los Angeles, the eleven dead African-Americans, prostitution is older,
African-American women who had been in more pervasive across cultures, does not
prostitution and were found under piles include as much non-sexual exploitation,
of rags in Detroit--these acts are and is based on sex, and sex and race
"gender cleansing." Snuff films are part combined. For Black women in the United
of it. When killing women becomes a sex States, the relation between prostitution
act, women have no right to their lives. and slavery is less one of analogy than
Women in prostitution, along with women of continuity with their sexual use under
cohabiting with men, are the most slavery. Applying the Thirteenth
exposed. Amendment to prostitution claims
Equality is also a civil right, both enslavement as a term and reality of
equal humanity in substance and formal wider application, which historically it
equality before the law. In the United has been. It also takes the view that the
States, constitutional equality Thirteenth Amendment was intended to
encompasses equal protection of the laws prohibit the forms slavery took for Black
under the Fourteenth Amendment and women just as much as those it took for
freedom from slavery or involuntary Black men.
servitude under the Thirteenth Amendment. Thirteenth Amendment standards require a
Prostitution implicates both. showing of legal or physical force, used
The Fourteenth Amendment provides for or threatened, to secure service, which
equal protection and benefit of the law must be "distinctly personal service . .
without discrimination. What little . in which one person possesses virtually
equality litigation exists in the unlimited authority over another." Some
prostitution context misses the point of cases predicated servitude on
their unequal treatment in a number of psychological coercion, but the Supreme
illuminating ways. Some older Court recently held that a climate of
prostitution statutes, challenged as sex fear alone is not enough. The
discriminatory on their face, made vulnerabilities of the victims are still
prostitution illegal only when a woman relevant to determining whether physical
engaged in it. For example, Louisiana or legal coercion or threats compel the
provided that "[p]rostitution is the service, rendering it "slavelike."
practice by a female of indiscriminate Recognized vulnerabilities have included
sexual intercourse with males for mental retardation, being an illegal
compensation." Applying the sex immigrant, not speaking the language,
discrimination test at the time, the being a child, and being stranded in a
court ruled that "[d]ifferences between foreign city without means of support.
the sexes does bear a rational Poverty has been pervasively understood
relationship to the prohibition of as part of the setting of force.
prostitution by females." In other words, The Thirteenth Amendment has often been
defining prostitution as something only found violated when a person is tricked
women do is simple realism. Women really into peonage or service through fraud or
do this; mostly only women do this; it deceit and is then kept unable to leave,
seems to have something to do with being including through contrived and
a woman to do this; therefore, it is not manipulated indebtedness. Debt is not a
sex discrimination to have a law that requirement of servitude, but it is a
punishes only women for doing this. common incident of it. One recent case
Here, the fact that most prostitutes are found that victims--called victims in
women is not a sex inequality, nor does these cases--were forced into domestic
equating prostitution with being a woman service by enticing them to travel to the
tell us anything about what being a woman United States, where they were paid
means. That most prostitutes are women is little for exorbitant work hours and had
the reason why legally defining the their passports and return tickets
problem of prostitution as a problem of withheld, while they were required to
women is not a sex inequality. Thus does work off, as servants, the cost of their
the soft focus of gender neutrality blur transportation. Corroborating evidence
sex distinctions by law and rigidly has included extremely poor working
sex-divided social realities at the same conditions.
time. By now, most legislatures have






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