Philosophical argument for decriminalization of sex work
I: Sex work, the act of receiving money in exchange for consensual sexual services or erotic performances, ought to be decriminalized.
II: Those who partake in sex work do so for many different reasons: a way to express their sexuality, good pay, flexible working hours, or it may just be the best option they have.1 When sex work is forced underground, sex workers are susceptible to unsafe sex practices, violence, poor healthcare, and the inability to utilize law enforcement if needed.2 Sex work ought to be recognized as a legit form of work because accompanying sex work with legal regulations like the labor law would arm sex workers with resources that would help keep their workplaces healthy and safe.
Safe sex practices within the sex work industry focus on the act of condom use. For example, physical and sexual violence create an unequal power dynamic in condom negotiation as well as the lack of time or space that some sex workers may have for condom negotiation.2 Many sex work transactions may take place in quick period of time or in places that are not associated with any sort of sex work organization, potentially leading to the inability for the sex worker to have the upper hand in condom negotiation. Similarly, many sex workers fear that the act of having a condom on their person could be evidence in subject to their arrest,2 which results in lack of condom use thus increasing chances of the spread of STIs. With decriminalization of sex work, transactions have the opportunity to take place in a more controlled environment, thus leading to higher rates of condom use as sex workers will not be fearful of their arrest. A study done in South Africa in 2010 found that condom use among sex workers has reduced HIV infection by 76% and in clients by 65%.3
As mentioned, lack of condom use is also impacted by violence and power dynamics which is an action that will not change unless sex workers had the direct support of law enforcement. Leaving sex work criminalized impedes on a sex workers human rights as they are not able to seek legal assistance in regards to violence and health in the workplace. In the instances when sex workers do seek legal assistance, a study done in 2016 on sex workers in Alaska, 80% of sex workers said they were turned down by police when seeking law enforcement assistance.2 Since sex work is criminalized, when illegal violent actions occur on the job that violate the safety of the sex worker, there is no federal support since a sex worker seeking medical or law enforcement assistance could risk exposing the occupation of that sex worker or risk being turned away.
In 2003, sex work was decriminalized in New Zealand, which now serves as a model for how the sex work industry would function under legislation. For example, law enforcement and health inspectors are allowed entry into brothels.4 This simple understanding between police and the sex work industry serves as an example on the ability of the sex work industry to work hand-in-hand with law enforcement. Similarly, brothel owners, who are often independent contractors, can be taken to disputes tribunal if found violating an aspect of human rights or basic rule in the sex work industry.4 This advance is one that has flipped scripts as sex workers now have law enforcement on their side in terms of handling disputes and illegal activity within the sex work industry. Without the decriminalization of sex, sex workers would not have access to law enforcement, which has shown to have a positive impact on the work environment for sex workers.
III: In contrast, it can be argued that even with decriminalization, continued exploitation of sex workers will occur due to a social hierarchy that often places men at the top.5 It can be argued that the “male use of female bodies is about power” and due to this exploitation of women by men, violence in the form of sexual assault and incest can occur, thus giving reason for criminalizing sex work.6 The idea that sex is about power for men directly reinforces the argument made that men are at the top of the social hierarchy and have the dominant power and strength over women. This can therefore lead to the conclusion that violence will be continued even with the decriminalization of sex work. It is understood that violence in the sex work industry is happening despite the criminalization status, in which a proposition has been made that modifies what in the sex work industry is criminalized. This proposition recognizes sex workers as the only victims of the industry and those who partake in the industry — pimps and consumers — ought to be punished.5
In refute against the idea that decriminalization would lead to better health care and a drop the spread of HIV for sex workers can be challenged with the proposition that under current law, sex workers are considered criminals, and therefore ought to not be considered for healthcare.5 The argument for decriminalizing sex work to allow sex workers better health care becomes irrelevant under the claim that sex workers are criminals, and therefore should not receive better access to healthcare. The fact that those illegally partaking in the sex industry are putting their own health at risk, which is a voluntary action — not referencing those forced into the industry by sex trade or trafficking — are therefore accepting the declaration of criminal under a criminalized sex work legislation and should not be considered a member of the public and entitled to the same healthcare as those who do not partake in the sex work industry. In this sense, the voluntary act of participating in sex work despite any outstanding economic, geographic, or social influences potentially demonstrates invalidity in the argument requesting better healthcare for sex workers with its decriminalization.
In tangent, the most famous argument made against decriminalization of sex work has to do with the spread of HIV and STIs among sex workers and consumers. In a study done in 1996, of 966 commercial sex workers in Guangdong Province, China, it was found that 66.5% of sex workers surveyed had contracted a form of STI and 1.4% were HIV positive.7 In relationship to the statistics, there has been an uptick in STI and HIV cases since the year of the survey — 1996 to 2000. It was also found that across 19 reporting provinces in China — where sex work is illegal — in 2000, 51% of female sex workers never used a condom.7 The coupling of increasingly high STI rates among sex workers in China works hand-in-hand with the also high percentage of female sex workers in China that are not practicing with a condom. These percentages can be used in argument against decriminalization of sex work because of the fear that decriminalizing sex work will lead to more sex workers and consumers partaking in the sex work industry, which could theoretically lead to an increase in STI and HIV rates among the general public. This argument can also support the previous premise discussing the invalidity in granting sex workers health care when they are currently considered criminals as they are also contributing to the STI and HIV numbers globally.
IV: Addressing the counter argument made saying that men are at the top of the social hierarchy, therefore obtaining ultimate power regardless of the criminalization status, this argument is weak because it focuses on the culture that humans have built. The authors are making the case that violence is culturally inherent due to this hierarchy deeming men as ultimately more powerful than women as a natural and cultural factor which therefore deems sex work as bad.6 The correlation between the cultural aspect of man’s ultimate power over women and women who partake in sex work do not necessarily have any connection as one premise cannot simply be inferred by the other. Therefore, it can be concluded that this argument is not entirely valid and falls victim to the assumption of cultural hierarchy in attempts to argue the criminalization of sex work is valid because men are more powerful than women.
The proposition made suggesting that sex workers should be made the only victims of the sex work industry by proposing the punishment of pimps and consumers under law could be accepted.5 This recognition that sex workers are not the main perpetrators in the sex work industry by the authors of the proposition of only punishing pimps and consumers under law is progress towards recognizing sex work as a form of work. While the prosecution of only pimps and consumers within the sex work industry does not completely decriminalize sex work, this proposition is a potential middle ground between the criminalization and decriminalization arguments. Knowing this, this proposition of only punishing pimps and consumers under law can be temporarily accepted as a compromise between each side since sex workers are being recognized as actual workers and not seen as the main reason for the criminalization of sex work. Those in favor of the criminalization argument win in the sense that pimps and consumers can face prosecution for partaking in sex work, which still adds an element of criminalization within the sex work industry.
Recognition of sex workers as true workers under law as proposed by the proposition of only prosecuting pimps and consumers, will help increase condom use and provide legal protection for the sex worker. This would eliminate a lot of the concern for condom use and violence that occur when on the job for sex workers.2 All the while, prosecution for pimps and consumers is still possible which keeps an element of the sex work industry criminalized.
Denying health care for sex workers because they are technically considered criminals in areas that have criminalized sex work is a valid argument. In contention, it is possible to argue that this argument is false due to the theory of moral relativism. This meaning that health care is a just form of service and is offered because of a belief of a right to autonomy. In this sense, it ought to be unjust to deny one healthcare because they are partaking in a form of work that another believes to be criminal. In continuation, moral relativism theory may be invalid to use to prove the falseness of considering sex workers criminals because if a culture decides that murder is just, then that would mean that those in the culture must accept murder as just. Understanding this counter argument, it must be accepted that denying a sex worker health care because they are deemed a criminal in areas where sex work is criminalized is true in arguing against the decriminalization of sex work.
HIV and STIs provide a base for the counter argument made against decriminalizing sex work. While the statistics mentioned are valid, there are stronger statistics against this argument: “In 1998, 570, 425 adult and adolescent men had contracted AIDS in the United States. Of this group, only four percent had contracted AIDS through heterosexual contact. Of that four percent, more than half contracted AIDS through sex with an injecting drug user, a hemophiliac, or a transfusion recipient. Thus, two percent of men with AIDS contracted it as a result of sex with a woman without an identified risk factor.”8 There was no distinction between commercial sex workers and other women, therefore it is likely that non-commercial sex is significantly more common than commercial sex. The significantly small number of men who actually contracted AIDS from commercial sex work shows how transmission of STIs vary depending on geographical location. It is recognized that in many countries of Asia and Saharan Africa have STI infection rates among sex workers that are significantly higher than Europe and North America.8 Knowing how the rates of STIs vary on location, it is possible that using HIV as an argument against decriminalization of sex work is invalid because of the ability to cherry pick statistics based on what area of the world has higher rates. Similarly, it is invalid for the argument to be made by those on the decriminalization side as well. The only valid response to the HIV argument made by the opposition is that decriminalizing sex work will help increase condom use by sex workers since law enforcement will not be able to arrest sex workers for simply having a condom on their person. This will then help decrease the spread of HIV and STIs.
References
1. “Understanding Sex Work in an Open Society,” Open Society Foundations (April 2019)
2. Joelle Freeman, Legalization of Sex Work in the United States: An HIV Reduction Strategy Current Developments (2018–2019): 598–599.
3. Linda-Gail Bekker, Leigh Johnson, Frances Cowan, Cheryl Overs, Donela Besada, Sharon Hillier, Willard Cates Jr, Combination HIV Prevention for Female Sex Workers: What is the Evidence? (July 22, 2014): 11
4. Gillian M. Abel, “A Decade of Decriminalization: Sex Work ‘Down Under’ but Not Underground” (Feb. 14, 2014)
5. Rebecca Hayes-Smith, Zahra Shekarkhar, Why is Prostitution Criminalized? An Alternative Viewpoint on the Construction of Sex Work (Feb. 9, 2010): Sections 1 & 2
6. Leyla Gülçür, Pinar Ilkkaracan, The “Natasha” Experience: Migrant Sex Workers from the Former Soviet Union and Eastern Europe in Turkey (July-Aug. 2002)
7. Joseph D. Tucker, Gail E. Henderson, Tian F. Wang, Ying Y. Huang, William Parish, Sui M. Pan, Xiang S. Chen, Myron S. Cohen, Surplus Men, Sex Work, and the Spread of HIV in China (Apr. 8, 2005)
8. Sylvia A. Law, Commercial Sex: Beyond Decriminalization (2000): 547
