Policing Sex Workers
Summary and Keywords
Regulatory and legal approaches to prostitution are subject to considerable debate among researchers, policymakers, and those tasked with the everyday enforcement of measures intended to control, abate, or otherwise manage the sex industry. Law, policy, and everyday policing practices all contribute to the de jure and de facto organization of the sex industry at the levels of policy formulation, coordination between police, social services, and other socio-institutional forces, and encounters between sex workers and criminal justice professionals. Despite considerable cultural-contextual variations, researchers have ascertained three predominant approaches to regulating prostitution worldwide: criminalization, legalization, and decriminalization. Each of these approaches takes a unique form in the specific cultural context in which local authorities implement them, thereby generating special issues for policing with respect to ideological frameworks and police–sex worker encounters. Taken together, the philosophical and pragmatic concerns raised by policing or otherwise regulating prostitution encompass an extraordinary gamut of deeply human concerns regarding political power, sexual behavior, individual rights, historically rooted inequalities, and state responsibility
Defining and Policing Sex Work: A Global Introduction
Defining Sex Work
Law enforcement requires clear parameters in order for police to effectively respond to citizen complaints, investigate crimes, and otherwise serve and protect the communities under their jurisdiction. The effort to define and police sex work is considerably complicated by the variation and diversity of the sex industry, which encompasses an extremely broad spectrum of actors who exchange sex or sexualized services for money or something of value in a wide variety of venues. Researchers have identified over two dozen different forms of sex industry labor that can be readily distinguished by method used to solicit clients, location of the exchange, amount of autonomy exercised, and degree to which the individuals involved economically rely on sex work (Harcourt & Donovan, 2005). The sex industry also features tremendous global variation with respect to the contextual boundaries established by individuals—and the communities in which they live and work—regarding what constitutes illicit versus licit sexual behavior between consenting adults. The result is considerable variance in how, where, and among whom the policing of sex work occurs, with cultural-contextual and sociostructural forces directly informing how sex work is defined and who is subject to policing for engaging in it.
Laws, policies, and other approaches to policing the sex industry may seem straightforward given that, on paper, sex work and its associated activities are either legal, illegal, or decriminalized and are accordingly subject to particular types of policing and other forms of criminal justice oversight. Yet, translating such approaches into everyday practice often proves extremely complex owing to the tremendous variation in the degree of law enforcement that takes place in sex industry settings. Citizen complaints and other forms of concern expressed by the general public play a significant role in determining how and whether police enforcement of laws regulating the sex industry will take place. Street prostitution and other highly visible sex industry forms, such as brothels or other establishments with a readily identifiable public presence, are accordingly subject to more intensive forms of policing than those sex industry types and venues that operate more discreetly from public view. Hence, laws and policies that govern how police encounters with sex workers take place may or may not be enforced, depending on the amount of political will or public interest directed toward these issues.
Policing sex work typically occurs at multiple levels comprising policy and legal formulation, coordination between socio-institutional actors to implement policy and law, everyday encounters between sex workers and criminal justice and social services professionals, and, in contexts that criminalize prostitution, the justice system (Dewey & St. Germain, 2017). These multiscalar realities lead some scholars to argue that the law constructs prostitution through the act of regulating or otherwise policing it. The result, they maintain, is a continuous feedback loop that defines particular types of transactional sex in particular ways and accordingly generates a set of de facto and de jure responses deemed appropriate (Scoular, 2015). These responses stem from law and policy that dictate how a given community, municipality, state/province, or country will regulate the sex industry by setting law enforcement and social services priorities that sometimes (but by no means always) allocate funds for particular types of policing, services provision, and other measures regarded as likely to produce desirable results (Sanders & Campbell, 2014). Criminal justice and social services professionals must accordingly coordinate with one another, in a manner prescribed by policy and law, to demonstrate appropriate results in their everyday work-related encounters with sex workers (Scoular & O’Neill, 2007). These routine interactions, as well as their intended results, vary dramatically depending on the dominant legal and regulatory approach to prostitution in a given context.
Legal and regulatory approaches to prostitution typically derive from adherence to a particular ideological perspective on the sex industry among decision-making authorities in a given municipality, region, or country. Even the term “sex work” itself remains highly contentious across academic, political, social and legal fields, with language used to describe transactional sex firmly cleaved along two primary ideological fault lines. Rights-based movements to acknowledge prostitution and other sex industry forms as legitimate forms of labor worthy of equal protections and respect first emerged in the 1970s, with sex worker rights activist Carol Leigh widely acknowledged as the originator of the phrase “sex work” (Leigh, 1997). Researchers, policymakers, and activists who regard the sex industry as morally reprehensible and/or abusive while advocating for its abolishment generally refer to those involved in it as victims. Researchers who regard the sex industry as inherently abusive to women will often refer to “prostituted women” to emphasize the lack of agency they believe women in the sex industry exercise (Raphael, Reichert, & Powers, 2010). Corrections professionals and some criminal justice researchers refer to women who engage in transactional sex as “offenders” (Geiger, 2006), while other researchers opt for more neutral language focused on behavior as distinct from individuals, such as “women in prostitution” (Shdaimah & Wiechelt, 2013).
These multiple levels of ideological and public engagement that inform legal and regulatory approaches to prostitution in a given context all inform how its policing takes place, as do the gender, social class, race, ethnicity, and citizenship status of those who provide or receive paid sexual services. An individual sex worker struggling with poverty, addiction, homelessness, and marginalized group membership is more likely to solicit clients in public venues that attract negative police attention (Rhodes et al., 2012) than a sex worker who operates with a greater degree of discretion indoors and may not rely primarily on transactional sex to earn a living. For instance, a handsome but sporadically employed actor who occasionally accepts cash in exchange for sex with men he meets in convivial social settings has little in common with a woman who has sex with strangers in exchange for small amounts of money or drugs. The actor is highly unlikely to experience a negative police encounter as he engages with men who pay him for sex, whereas the woman’s public presence on the street automatically subjects her to police scrutiny, particularly in contexts that criminalize illicit drug use, prostitution, and homelessness. Likewise, an undocumented transgender migrant working in an illegal brothel faces a very different set of consequences, including possible deportation, following a police encounter than a college dance major who is unlikely to ever encounter police while earning money to pay her tuition in a legal sex industry venue such as a topless bar.
All of these individuals nominally fit into the category of “sex worker” because they provide sexual services in exchange for money or something of value, yet they may not regard themselves as such due to the considerable stigma globally associated with the sex industry, their personal sense of propriety, or membership in a cultural community that defines their behaviors as a normalized aspect of intimate life. Hence, it is unsurprising that sex work presents such a notoriously difficult set of policing-related challenges for those who develop law and policy, the criminal justice and social services professionals tasked with its everyday implementation, and the sex workers subject to such oversight. One of the most pressing challenges is the frequency with which law and policy derive from dominant cultural constructions of morality, rather than empirical evidence, with particular political or activist agendas driving knowledge production in ways generally considered unacceptable in any other area of research or policymaking (Weitzer, 2005).
Policing Sex Work: Regulatory and Legal Approaches to Prostitution
Globally, the sex industry is characterized by extraordinary variance and diversity and the overrepresentation of historically oppressed groups, including women, among those who provide sexual services for pay. All of these factors inform legal and regulatory approaches to the sex industry and its policing, which can differ significantly between municipalities or cities within the same country because of local concerns, particularly vocal activist movements, or cultural norms that privilege particular belief systems over others. Law enforcement priorities, available social services, political will, and concerns about crime, migration, illicit drug use, or other issues of community relevance all influence how law, policy, and policing occur in a given context. Dominant cultural beliefs about the nature of prostitution and its interpersonal and social impacts undergird law, policy, and policing, resulting in contradictions between policymakers’ assumptions and the realities of life in communities where sex work occurs (Phoenix, 2009). Hence, prostitution may be criminalized but practiced freely in an area where it is a low law enforcement priority or legalized but intensely policed and regulated in a setting where considerable community anxiety exists regarding the control and management of prostitution.
Despite these considerable global variations in legal, policy, and associated law enforcement priorities, three predominant regulatory and legislative approaches generally govern the sex industry’s operations worldwide: criminalization, legalization, and decriminalization. These approaches almost always focus on regulating the act of prostitution rather than the sex industry as a whole, with the primary policing concern associated with the exchange of sex for money or something of value. Hence, in contexts where prostitution is largely criminalized, such as the United States, legal sex industry venues that do not explicitly permit the practice of prostitution—such as peep shows, strip clubs, or massage parlors—often face scrutiny from police due to suspicion that prostitution may be taking place there (Hanna, 2005).
Criminalization, legalization, and decriminalization mandate different approaches to policing prostitution, although these approaches vary by cultural context and sex industry venue. In settings where prostitution is criminalized, police typically patrol street settings where prostitution takes place or, less frequently, arrange undercover operations in which they identify those engaged in prostitution and make arrests, as occurs in China (Zheng, 2009). Contexts that legalize prostitution task police officers with ensuring against the presence of minors, undocumented persons, and exploitative third parties in venues licensed to provide sexual services or, as occurs in the United Kingdom and in Australia, in neighborhood locations that function as tolerance zones (O’Neill & Campbell, 2006; Office of Police Integrity, 2008). Under decriminalization, which removes laws related to the exchange of sex for money between consenting adults, police maintain order by responding to complaints and patrolling sex industry venues as they do in any other community establishment (as has been documented in New Zealand; see Abel et al., 2010). Considerable local and national variations exist throughout the world in terms of how policing occurs under each of these three approaches.
Laws against prostitution exist throughout most of Africa, the Asia-Pacific region, the Middle East, eastern Europe, Central Asia, and significant parts of the Americas (Institute for Development Studies, 2017). Police enforcement of laws against prostitution varies by context, with some countries characterized by minimal numbers of prostitution-related arrests while others feature high penalties for engaging in prostitution. Thailand, for instance, criminalizes prostitution but has a worldwide reputation for its publicly visible sex industry in which sex workers and clients face low rates of arrest (Khruakham & Lawton, 2012). China criminalizes prostitution; rural migrant women who are arrested on prostitution-related charges face police abuse and mandatory detention in work camps. Similarly, their U.S. counterparts involved in street prostitution experience high rates of arrest, incarceration, and court-mandated drug or other therapeutic treatment (Dewey, Zheng, & Orchard, 2016; Tucker & Ren, 2008). Most countries and municipalities that criminalize prostitution statutorily prohibit both the purchase and sale of sex, although police arrest women who sell sex far more often than they do men who purchase it. One exception is the Nordic Model, so-named for its origins in Scandinavia, which targets male clients rather than female sex workers because of the belief that prostitution is an inherently exploitative practice that harms vulnerable women (Skilbrei & Holmstrom, 2013).
The legalization of prostitution, which is globally far less common than criminalization, is typically accompanied by a host of labor regulations, registration requirements, taxes, and mandatory medical testing, as occurs in Mexico (Kelly, 2008). In countries or municipalities where prostitution is legal, government regulations on its practice often make owning, operating, or even working in a legal brothel an expensive undertaking that requires great amounts of capital and business knowledge. Sex workers must register with a municipality to receive a permit to engage in their work, pay taxes on their income, and additionally give a portion of their earnings to the brothel owner as a condition of their employment, as occurs in some rural counties in the United States in Nevada (Brents, Jackson, & Hausbeck, 2010). Legal prostitution, like any other lawful business, is subject to public health, tax, and zoning ordinances, as is the case in the Netherlands, Belgium, and Germany (Weitzer, 2011). In such legal contexts, such as licensed sex industry venues in Mexico, police still arrest sex workers who do not have work permits, who are undocumented, or who trade sex in settings that do not have government approval for that purpose (Katsulis, 2010).
The decriminalization of prostitution is part of an ethos that regards transactional sex between consenting adults as outside the purview of state regulatory oversight. Just as is the case with legal regulatory frameworks for managing prostitution, the decriminalization of prostitution takes place in conjunction with the retention of laws against exploitation. Zoning and other municipal codes or state statutes also prohibit the practice of prostitution in particular areas, and individuals without work permits or citizenship status may not legally earn an income. Countries that have decriminalized prostitution, such as Brazil and New Zealand, often have active sex worker rights movements that governments and municipalities actively consult in order to promote health and safety measures oriented toward harm reduction (Abel et al., 2010; Blanchette & da Silva, 2011). De facto decriminalization exists when police opt not to enforce existing laws in particular neighborhoods where prostitution is the main economic activity, as in Calcutta’s Sonagachi or Bangkok’s Patpong (Kotiswaran, 2014).
Race, Class, and Gender: All Factors in Prostitution-Related Policing
The majority of sex workers worldwide are adult women, but men, transgender people, and minors also provide transactional sexual services to clients. Like sex work more generally, encounters between police officers and sex workers are inseparable from the cultural context in which they take place. Police and sex workers alike are products of the cultural norms that surround them; accordingly gender, race, citizenship status, age, sexual identity, and various other factors related to identity, in conjunction with prostitution’s legal status, impact how individuals engage with police officers. Dominant cultural norms heavily stigmatize women who sell sex. At the same time, women may also experience greater sympathy from police officers and the justice system than men or transgender people who sell sex because cultural norms more readily ascribe victim status to women. In many societies, women who engage in prostitution occupy a conflicted cultural status as victim–perpetrators whose poverty, gendered vulnerabilities, and need to support small children evoke a toxic social miasma of pity and disgust.
Women from historically disadvantaged groups are overrepresented in the sex industry’s poorest paid sectors, which are also most likely to expose sex workers to violence, negative police encounters, and limited autonomy over their working conditions (Martin, Hearst, & Widome, 2010; Clarke et al., 2012; Mgbako, 2016). The sex industry is at least as stratified (if not more so) by race, class, and gender as are licit industries, with discrimination additionally manifesting in the forms of gender and racial profiling by police, particularly of women who work outdoors in areas known as sites for prostitution-related activity. Racist and misogynistic violence perpetrated by clients, rivals, community members, and police officers with impunity is a serious concern for sex workers worldwide, and sex worker right activists often focus on the centrality of these issues (Crago, 2008).
Trans- or queer-identified sex workers face additional considerations regarding their safety in comparison with their cisgender female peers. Men who have sex with men for money may encounter police officers who are less sympathetic to their experiences with the same struggles as women in sex work as a result of homophobia and pervasive cultural beliefs that hypersexualize men (Edelman, 2011; Lyons et al., 2017). Young transgender and queer-identified people whose parents or caretakers reject their gender identity may run away from home and engage in survival sex to meet basic needs, potentially trapping them in a cycle of homelessness and prostitution with far fewer resources available to them than women and girls (Brennan et al., 2012). Once arrested and convicted of a prostitution-related offense, transgender people often face incarceration in a jail or prison that corresponds with their genitals rather than their gender identity, potentially exposing them to additional forms of transphobic violence by other prisoners.
Regardless of the form it takes, prostitution’s legal status is hardly the only concern sex workers of any gender have about their encounters with police (Deering et al., 2014). Laws against loitering and vagrancy may result in de facto criminalization for street-based sex workers, whose visibility in public space renders them particular targets for community scorn (Sanchez, 2004). Sex workers who struggle with homelessness, addiction, or other forms of social marginalization are disproportionately more likely to experience negative police encounters, arrest, and incarceration because they often work outdoors and have few resources. Even in a setting like Canada, which prioritizes harm reduction, street-involved women are often arrested and incarcerated on drug-related charges (Benoit et al., 2016).
Policing is a major issue in the lives of all sex workers regardless of how they self-identify and the regulatory and legislative approach taken to prostitution in the context of where they live and work. Yet police officers who encounter sex workers in their everyday interactions also grapple with the realities of sexism and other forms of discrimination prevalent in many societies. Women police officers may be asked to pose as “decoy” sex workers in sting operations designed to arrest clients, raising a host of potentially difficult moral and ethical issues for the women and their colleagues (Dodge, Starr-Gimeno, & Williams, 2005). Similarly, officers of color routinely must arrest those who phenotypically resemble them while struggling with systemic racism and a need to prove their allegiance to a criminal justice system dominated by white males (Wilson, Wilson, & Thou, 2015). These complex issues all inform how policing takes place under criminalization, legalization, and decriminalization, each of which derives from particular ideological frames, fosters particular types of police–sex worker encounters, and prompts critical responses from various actors.
Policing Sex Workers Under Criminalization
The ideological frames underlying criminalization generally regard transactional sex as a deviant behavior that is closely linked to other social harms that cannot be officially condoned, including the illicit drug economy, violence against women, and organized crime. The state adopts criminalization to condemn prostitution as a criminal act and, by default, those who engage in it as criminals and, depending on the context, advocates deterrence and intervention through policing, threat of arrest, incarceration, and court-mandated addiction or other therapeutic treatment. Within this approach, sex workers are and should be targets of state management and oversight because of the cultural position they occupy outside the appropriate social order.
The encounters that take place between police and sex workers under criminalization are necessarily complicated by three competing factors. First, those engaged in transactional sex are breaking laws that officers are sworn to uphold. Second, officers cannot possibly arrest every person who is engaged in prostitution because doing so would overcrowd jails and courts with nonviolent, misdemeanor offenders at great cost to taxpayers. Third is the fact that most individuals enter the sex industry because they lack comparably paid economic alternatives. This leaves police officers in the unenviable position of arresting those who are pursuing the income generation most readily available to them within significant socioeconomic constraints.
These three competing factors inform law enforcement priorities by forcing criminal justice professionals—especially those elected to office—to carefully consider public opinion as they direct and formulate police procedure in both street and indoor venues. Street prostitution is far more visible and generates greater opportunities for contact between police officers and sex workers. Policing street prostitution almost always takes place as part of neighborhood patrols designed to maintain order by apprehending those who commit crimes and responding to citizen complaints. When complaints about street prostitution come from those who own homes and businesses, and accordingly constitute a powerful voting bloc in the community, police patrol officers face pressure from their superior officers to arrest and otherwise discourage sex workers from congregating in those communities.
Street prostitution that occurs in neighborhoods dominated by the illicit drug economy—as is almost universally the case in the United States and Canada—creates a complex adversarial relationship between police who seek information about persons of interest and sex workers who seek to avoid arrest. Street sex workers are highly sought after as police informants because of their knowledge about neighborhood illicit drug economy figures. They may receive a lesser criminal charge or no charges at all if they agree to provide police with such information. But street sex workers may risk violent retribution for becoming police informants, forcing the women to make difficult choices as they engage with police officers.
Policing prostitution within indoor venues typically requires considerably more coordination than policing street prostitution. Such policing takes several forms, including raids on illegal brothels, undercover surveillance of legal sex industry establishments to ascertain whether illegal prostitution occurs there, or sting operations in which officers use a variety of measures to arrest a person in the act of committing a crime. Sometimes police officers will monitor websites where sex workers advertise their services by posing as prospective clients to arrest sex workers or as underage sex workers to arrest their clients, in addition to similar undercover tactics used in person to make arrests.
An increasingly common trend in settings that criminalize prostitution, particularly in North America and western Europe, involves coordination between criminal justice and social services professionals, with the goal of helping women to leave prostitution. Such forms of coordination have historical antecedents in “the rescue industry” that emerged in postindustrial western Europe and North America (Agustín, 2007) but have become intensified in response to carceral feminism’s goal of using the criminal justice system as a means to address violence and other forms of historical injustices that disproportionately impact women (Bernstein, 2010). Such coordination is evident in prostitution diversion courts, transitional housing that serves as an alternative to incarceration, and other forms of post-arrest intervention (Oselin, 2014; Shdaimah & Bailey-Kloch, 2014). These forms can exercise significant control over the abilities of sex workers to maintain child custody, economic independence, and personal autonomy (Wahab & Panichelli, 2013).
The critics of criminalization hold that this legal and regulatory mechanism animates the stigmatization and moral opprobrium directed at sex workers from myriad socio-institutional forces, including marginalization’s deep roots within harms stemming from historical injustices. Arrest, incarceration, and a resulting lifelong criminal record intensify the already significant stigma and socio-institutional exclusions many sex workers face by further limiting their access to employment, housing, and community ties. Incarceration often precipitates a loss of social relationships, status, and long-term financial costs that further compound sex workers’ poverty and other struggles. This echoes the claims of neo-abolitionists who contend that prostitution is “an institution that systematically discriminates against women, against the young, against the poor, and against ethnically subordinated groups” (Farley, 2004, p. 1117).
Researchers and activists also express concern that the difficulties police face in making prostitution-related arrests prompt legislators to broaden the scope of offenses with which sex workers can be charged, resulting in more arrests (Shannon, 2010). For instance, police use of condoms as evidence of intent to engage in prostitution makes sex workers wary of having condoms in their possession in case they are stopped and searched by police; this fear has very real health and safety consequences (Shields, 2012). Critics also suggest that sex workers in criminalized contexts are less likely to negotiate condom use with clients during transactions that are rushed due to fear of arrest (Deering et al., 2014). Criminalized sex workers face additional health and safety risks when, in seeking to avoid arrest, they trade sex in less well-lit, less-populated areas. In such conditions, they cannot call for help and they may face assault, or even murder, because they fear that reporting to police will expose them to further surveillance for breaking the law (Salfati, James, & Ferguson, 2008; Scorgie et al., 2013).
Policing Sex Workers Under Legalization
The ideological frames underlying legalization regard prostitution as an enduring human reality that warrants state oversight as a means of minimizing public health and safety risks for sex workers, their clients, and their communities. In areas where prostitution is legal, municipal authorities require sex industry establishments and individuals who work in them to register with a government-appointed authority, submit to mandatory health screenings, pay taxes, and comply with health, safety, and other workplace standards established by a government entity. Legalizing prostitution effectively requires municipal or other state authorities to treat sex industry actors who operate within parameters established by law as purveyors of a legitimate business.
Legalization presents criminal justice professionals with two primary problems in policing both street and indoor sex industry venues. First, in deference to members of society who find the sex industry objectionable, legal sex industry venues are often zoned to areas where residents cannot protest their presence. Location of these venues in isolated or impoverished areas reinforces the sex industry’s marginal status in ways that directly impact police encounters with sex workers. Patrol officers tasked with policing in poverty-stricken neighborhoods that have many social problems, including mistrust of police, or with driving long distances to reach remote locations, experience significant stress that impacts their encounters with those under their jurisdiction.
Second, legalization only encompasses those sex industry venues that comply with state requirements. The result is criminalization of individuals who cannot or will not meet these criteria owing to their citizenship or health status or their desire to evade taxes and other forms of state control. In contexts where prostitution is legal, police officers and other criminal justice professionals, like their counterparts in criminalized settings, must identify and contend with various prostitution-related law violations. Among these violations are failing to register as a sex worker or sex industry venue operator, engaging in prostitution in areas not zoned for that purpose, and refusing to comply with state requirements.
Policing in legal street prostitution venues typically involves preventing violence, exploitation, and other illegal acts from taking place and holding perpetrators of these acts accountable through arrest and detention. Police in legal street venues must also ensure that sex workers are in compliance with state requirements. Thus, those who lack work permits or other requisite documents are subject to arrest, detention, and, in the case of migrant sex workers, deportation. Such venues vary from tolerance zones, as documented in the United Kingdom (O’Neill et al., 2008), to city blocks accorded zoning permits for walled drive-in structures that provide privacy for sexual encounters between street sex workers and their clients (Weitzer, 2011). The forms of policing to which legalized prostitution is subjected vary tremendously by municipality and region. In early 20th-century China, for example, approaches to regulating legal prostitution ranged from a focus on revenue generation to intensive or limited policing of these venues, all of which generated profits for the state (Remick, 2014).
Legal indoor sex industry venues are subject to police checks to ensure that they have appropriate state or municipal licenses and that sex workers consent to their presence as workers in such venues. As in state-sanctioned street venues, police ideally cooperate with sex workers, owners, and operators in legal indoor venues to ensure their safety and compliance with local licensing and regulatory requirements. A regulated system allows prostitutes to “advertise their services clearly without fear of arrest, rely on the police for protection, create safe houses in which to work, and to unionize” (Lutnick & Cohan, 2009, p. 42). Legalization allows local government to collect tax revenue from a previously clandestine market, which can help to promote sex work as a legitimate form of employment and reduce stigma (Seals, 2015, p. 792). Likewise, mandatory health checks, as occurs in legal sex work settings in many global regions (Kelly, 2008; Katsulis, 2010), can help provide greater well-being for sex workers and their clients.
Coordination between police, social services, and other institutional actors in legal sex industry venues varies by cultural and geographic context as well as by the amount of trust the various parties have in one another. A nonadversarial police presence in licensed and state-regulated street venues or visits to legal establishments ideally encourage reporting of abuse, including the presence of minors, nonpayment for services, or other legal violations, without fear of arrest. For instance, the primary goals of legalization in Nevada are to “punish third parties to prostitution, regulate and zone prostitution away from so-called respectable areas of communities, and address concerns over the spread of disease” (Brents, Jackson, & Hausbeck, 2010, p. 277). Legal, state-regulated venues may also benefit from cooperative relationships with social services or other institutional actors tasked with meeting sex workers’ needs, including social supports and health promotion.
Critics of legalization argue that this regulatory mechanism renders the state a third party in transactional sexual exchanges through taxation and profits from licensing fees. The “state-as-pimp” criticism of legal prostitution opposes what its critics often regard as the state endorsement of sexual double standards, exploitation of women, and morally reprehensible behavior (Farley, 2004). Some activists for sex workers’ rights denounce legalization on the grounds that state and third-party owners or operators reap the greatest benefits from this approach. Significant stigmatization means that “legal brothels . . . are not treated as ‘mainstream’ businesses” and that “sex workers are not treated as ‘normal’ workers” (Sullivan, 2010, p. 103). For instance, restrictive work contracts in legal venues may exploit sex workers by forcing them to pay up to half or more of their earnings to a government-regulated entity, such as a brothel, which in some instances also has the legal right to restrict their place of residence or other movements as a condition of their employment there (Brents, Jackson, & Hausbeck, 2010).
Critics of legalization further contend that mandatory registration creates a permanent public record of a woman’s involvement in the sex industry, with the associated stigma potentially restricting her opportunities for future employment in a different sector. Mandatory health checks for sex workers in legal venues prompt some critics to question why sex workers’ clients do not have to undergo required testing for sexually transmitted infections, given that both parties are involved in the transactional sexual exchange. Additionally, “oppressive interventions” such as “mandatory finger printing and record checks, forced health evaluations, higher taxes and financial penalties, and constant police surveillance in addition to regulations on when and where one can work” may have the unintended consequences of pushing sex workers into “work in illegal areas of the industry” where they face additional potential harms (van der Meulen & Durisin, 2008, p. 306).
Legalization is also criticized for failing to address issues facing the significant numbers of sex workers who lack citizenship or work permits, whose struggles with addiction or mental health make them undesirable to legal sex industry venues, or whose sexual health status precludes them from legally engaging in sex work. Such sex workers, like their peers in criminalized contexts, still face arrest and incarceration, raising important questions regarding whether legalization only benefits relatively privileged sex workers. Such criticisms have prompted many sex workers’ rights activists to endorse decriminalization as the most appropriate legal and regulatory approach to prostitution.
Policing Sex Workers Under Decriminalization
The ideological frames that drive decriminalization regard the exchange of sex for money or something of value between consenting adults as a private matter that should not be subject to state oversight. Decriminalization eliminates the considerable financial and social costs of arresting and incarcerating women for prostitution-related offenses, while keeping laws in place that prohibit sexual exploitation. This approach provides sex workers with equal protection under the law while also allowing “more freedom in choosing non-sex work in the future” by not requiring state registration that creates a permanent record of sex industry involvement” (Lutnick & Cohan, 2009, p. 41). Advocates of sex workers’ rights generally support decriminalization because of the health and safety benefits supposedly associated with freedom from arrest as well as its exemption of sex workers from taxation, mandatory health screenings, and other forms of government oversight. These advocates often regard decriminalization as the best way to promote sex workers’ rights and reduce social stigma. They maintain that through this approach sex workers are “bound to the same work place regulations, including health and safety standards, as all other workers and are able to organize unions, guilds, and associations to protect their basic rights” (van der Meulen & Durisin, 2008, pp. 306–307).
Decriminalization enjoys widespread support from sex workers’ and human rights groups that view it as a means of reducing or eliminating the significant harms sex workers face, including stigma, socioeconomic disenfranchisement, police harassment, and violence in various forms (Amnesty International, 2016). Yet, worldwide, this approach is largely de facto rather than de jure, and decriminalization largely remains a theoretical alternative to criminalization and legalization rather than a reality. De facto decriminalization is much more prevalent than de jure decriminalization, with even the internationally lauded example of decriminalized prostitution in New Zealand retaining many laws that effectively make prostitution semilegal rather than fully decriminalized (Warnock & Wheen, 2012). One example of de facto decriminalization is the police decision to disregard existing laws against prostitution, as has been documented in many areas that rely on sex tourism or the sex industry as an economic mainstay (Kotiswaran, 2014). Another example is selective enforcement of laws against prostitution, with indoor prostitution largely exempt from such policing (Harcourt, Egger, & Donovan, 2005).
Policing under decriminalization, whether de jure or de facto, focuses exclusively on enforcing laws against the exploitation of minor youth, violence, and other abuses of power and authority committed against sex workers. Two primary problems confront police and other criminal justice professionals who work in settings where prostitution is decriminalized. First, police must be able to distinguish adults who freely consent to their sex industry involvement from victims and perpetrators of crimes, such as sex trafficking of adults and the sexual exploitation of minors. Under decriminalization, members of the first group are exempt from arrest, whereas members of the second group are subject to arrest and detention. Yet making such distinctions can be challenging because sex workers often have few other options to earn comparable wages in other forms of work, making consent relative at best. Second, in decriminalized settings, police must have clear parameters for what constitutes exploitation by third parties since in many settings prostitution is not illegal but many of the conditions necessary to carry it out are (such as operating a sex industry venue that profits from sex workers’ labor). Considerable variation in labor practices across different venues and types of sex work makes such policing difficult.
Policing in decriminalized street venues focuses on upholding public safety within communities where street prostitution takes place. Since decriminalization is always accompanied by laws that prohibit sexual exploitation and violence, police in such settings may be able to engage with street sex workers to share information about potentially dangerous neighborhood actors in order to improve public safety overall. Street sex workers in all legal and regulatory contexts observe a great deal about neighborhood dynamics as they go about earning a living and accordingly have much information of interest to police. Under decriminalization, sex workers and police can ideally work together to minimize harms associated with exploitation.
As in street settings, sex workers in decriminalized indoor venues can envision police as allies and public safety advocates rather than as punitive adversaries. Under decriminalization, sex workers in legal brothels, strip clubs, and other indoor venues may more readily report abuses to police, as the targets of policing in this regulatory framework are exploitation and other harms rather than prostitution itself. Such harms may not be as visible in indoor settings, and sex workers’ potentially increased abilities to envision police as allies under decriminalization could contribute to healthier and safer indoor working environments.
Under decriminalization, coordination between police, social services, and other institutional actors has potential to facilitate a collaborative community approach to prostitution as an enduring social issue. Sex workers engaged in prostitution who do not fear arrest are able to exercise greater rights and control over their working conditions than those in criminalized or legalized settings. Such conditions enable more effective coordination between institutional actors because their encounters with sex workers are not bounded by the threat of arrest and incarceration. This opens up greater potential for provision of health and social services that will improve community life.
Critics of decriminalization contend that the state has a moral responsibility to regulate the negative elements that decriminalization’s opponents believe accompany sex work, notably violence, addiction, disease, and social disorder. Morality-based legislation that links neighborhood illicit drug economies and various forms of street violence is dependent on the ethos that permitting sexually libertarian approaches to prostitution will generate chaos. Decriminalizing prostitution, these critics argue, is a slippery slope that will lead to public endorsement or widespread sanctioning of a host of morally objectionable behaviors.
Decriminalization’s critics argue that prostitution poses a threat to the social order because it enables other undesirable behaviors. Those concerned with public health argue that social or legal sanctioning of sexual behavior regarded as unseemly in the dominant culture results in higher rates of disease transmission as well as negative consequences for individuals’ mental health. Critics who oppose decriminalization on the grounds that society has a responsibility to regulate prostitution argue that the failure to do so results in violence and disorder. Still others contend that since prostitution is a by-product of poverty, sexism, addictions, and other deeply rooted social problems, government must play a role in regulating or otherwise attempting to control it. Some supporters of sex workers’ rights maintain that decriminalization still allows “moral majoritarianism at the local community level” to infringe on sex workers’ rights by allowing local governments to impose regulations on sex work that are indistinguishable from those under other legal regimes (Warnock & Wheen, 2012, p. 437).
The three legal and regulatory approaches to prostitution that are most prevalent worldwide—criminalization, legalization, and decriminalization—result in very different encounters between sex workers and police and coordination between institutional actors. They also spark unique forms of criticism. When considered in conjunction with their effects in terms of everyday police–sex worker encounters, it is self-evident that regulating transactional sexual exchange is a difficult task for any society. These predominant approaches, as well as the considerable jurisdictional and global variations between them, raise profound questions regarding the deeply rooted philosophical, ideological, and human rights issues that are at stake in the governance of prostitution.
Concluding Thoughts on Policing Sex Work: Considering the Evidence
Debates regarding prostitution and its regulation are centuries old, although the establishment of sex industry research as a field has much shallower roots that first emerged in studies of crime and delinquency among women and girls (Lombroso & Ferrero, 1893; Thomas, 1923). For at least the past half century since researchers first began to engage systematically with the study of prostitution, the field of sex industry research has been replete with heated debates regarding terms, definitions, and advocacy for particular practices and policies related to prostitution. Some of these debates have origins in feminist scholars’ analyses of the cross-cultural meanings ascribed to gender and sexuality, with studies of transactional sexual exchange often featuring critical interpretations of the sex/gender system that surrounds them.
Conflicting philosophical, religious, and ideological premises all inform ongoing debates about prostitution, and yet a fundamental question remains unanswered: which legal and regulatory approaches to prostitution best respect the rights of all members of society? All researchers, policymakers, and members of the general public can reasonably agree that evidence is a necessary component of any rational legal or policy approach to social problems. The problem is what “counts” as evidence, as researchers, policymakers, and a curious public can all draw upon a vast array of studies on transactional sex that purport to offer evidence-based arguments regarding the characteristics of those who engage in it, why they make the choices that they do, and the conditions surrounding these choices.
Perspectives on transactional sex generally fall into three philosophical divisions, each of which is grounded in, and produces, its own particular set of ideological truths that shape how research is carried out and how recommendations for policy are generated: neo-abolitionism, sex worker rights, and harm reduction. Ideological truths associated with each stance differ profoundly in terms of how the sex industry is framed and the legal and policy solutions proposed to problems thought to arise within or because of it. All of these stances tend to focus almost exclusively on female sex workers, who generally represent the manifestation of issues deemed relevant within the sex industry. Virtually all government attention and policing of sex work are likewise directed at women in the sex industry—unsurprising since women comprise the majority of sex workers worldwide. This leaves male sex workers technically covered by the law and yet de facto free of its reach almost universally. Given this focus, comparatively little is known about male and transgender sex workers, the characteristics of sex workers’ family members, third-party facilitators, clients, and other social ties. This reality rather problematically situates sex workers within a vacuum that ignores the contexts, relationships, and community socioeconomic factors that inform their decision making.
Neo-abolitionists regard the sex industry as morally reprehensible, abusive to women, and harmful to society. They therefore advocate for state measures that criminalize or otherwise penalize sex industry participation. Proponents of neo-abolitionism include those who oppose the sex industry on religious and philosophical grounds and span a continuum from evangelical Christians, who regard prostitution as immoral, to radical feminists, who view the sex industry as the ultimate manifestation of patriarchy and gender inequality. The sex industry is a social ill, akin to domestic violence or sexual assault, warranting eradication rather than regulation within this perspective. Neo-abolitionists eschew the term “sex work” on the grounds that transactional sexual exchange is immoral, abusive, and illegitimate. Accordingly, they dismiss those who support legalization or decriminalization as tacitly endorsing prostitution-related harms. They also denounce harm reduction as an approach that further enables addiction, sexual violence, and other ancillary community problems that neo-abolitionism associates with the sex industry.
Supporters of sex workers’ rights hold that transactional sex is a legitimate form of labor that should receive the same legal status, benefits, and respect as other jobs. Drawing on a human rights framework that considers how multiple forms of socio-institutional discrimination intersect in sex workers’ lives, this perspective regards sex work as part of the global service industry dominated by a workforce made up of people with limited formal education and prospects for social mobility. Decriminalization is the solution generally promoted by advocates of sex workers’ rights because this legal and regulatory approach acknowledges the difficult socioeconomic conditions and generalized stigma in which sex workers live and work. Supporters of sex workers’ rights denounce neo-abolitionism on the grounds that criminalizing income generation strategies that people engage in because of their limited alternatives both endorses and furthers their disenfranchisement.
Harm reduction, with its origins in public health approaches to addiction, substance abuse, and sexually transmitted infections, suspends moral judgment about the sex industry with the goal of providing health and social supports to sex workers. Proponents of this approach advocate street outreach, peer-to-peer support, and cultivation of mutually respectful relationships between sex workers and their health and social services professionals. They maintain that this is the best means to reach a population struggling with significant social marginalization and stigma. Harm reduction supporters generally agree with the premises of sex workers’ rights but envision their primary responsibility as “meeting people where they are at” by acknowledging that the sex industry comprises diverse actors. Many of these people, they state, may not regard their income generation activities as anything more than a way to support themselves in difficult circumstances. Sex worker rights groups, which tend to be dominated by white, cisgender women with experience in more lucrative sex industry venues, seek to destigmatize their labor. These groups may likewise seek to distance themselves from harm reduction’s philosophical and practical focus on reaching those struggling with addiction and related social problems that represent the more problematic aspects of the sex industry.
Considering “the evidence” therefore becomes a matter of which perspective policymakers, and the general public to which they are accountable, envision as the most compelling and potentially effective means by which to regulate the sex industry. “The evidence” also varies in its utility of application, especially when data collected with one group of sex workers is extrapolated to other sex worker groups with whom they have little in common. Research conducted with women engaged in street prostitution in North America, for instance, will produce evidence that clearly links intergenerational poverty, addiction, homelessness, compromised mental health, and sex industry involvement. Such linkages clearly do not apply to more privileged individuals who have higher levels of formal education and choose sex work over less stigmatized occupations because of the flexibility they believe it offers (Bernstein, 2007).
Sex workers have a limited voice in most circles that set the legal and policymaking agenda in which they earn a living. In most instances, this agenda is set by formally educated professionals with little real knowledge of the dynamics that informs sex industry participation. The result is a strong reliance on evidence generated by adherents to an ideological perspective favored by those in political power, who are in turn beholden to a general public that derives its evidence from individual moral and ideological stances as well as exposure to mass media representations of the sex industry.
Sharp ideological divisions among researchers professionally tasked with generating evidence further complicate measures designed to police the sex industry. Neo-abolitionists, sex worker rights advocates, and harm-reduction proponents rarely interact with one another in ways that engender meaningful compromise or pragmatic solutions to what all parties should be able to agree are enduring social issues. These interactions, when they take place at all, often quickly take on an adversarial tone, with participants’ ideological alignment with one another strongly determining whether meaningful communication can take place at all (Valverde, 1987). Involving sex workers in such exchanges often means including those whose self-identifications correspond with the dominant ideological stance toward sex industry participants as rights-bearing workers or victims of abuse, thus invoking the epistemological privilege that accompanies lived experience (Nencel, 2017).
Considering the ideologically contentious variation in what constitutes appropriate “evidence” to support particular types of prostitution-related policing and other regulatory measures raises profound philosophical questions about the everyday governance of individual lives. Yet a singular pragmatic query underlies all of them: where does the solution to these seemingly intractable ideological divisions between different stances on the sex industry lie? Perhaps part of the answer can be found in Jo Phoenix’s call to move beyond research claims about specific cultural and legal contexts to determine the global gendered cultural and geopolitical stakes at work in prostitution and its regulation (Phoenix, 2017). Doing so requires serious consideration of both the philosophical and pragmatic issues that underlie the powerful state legal impetus that is so apparent worldwide to regulate transactional sexual exchanges between consenting adults.
Police officers are street-level bureaucrats (Lipsky, 2010) tasked with carrying out the state’s will as they go about their everyday professional encounters with those under their jurisdiction. Hence, any serious consideration of how policing takes place must involve engagement with how political will manifests itself and is constructed at the state level. Policing sex work, no matter where it takes place in the world, accordingly involves addressing six core philosophical questions regarding the state’s responsibility to define and intervene in social problems. These six questions encompass an extraordinary range of deeply human concerns regarding political power, sexual behavior, individual rights, historically rooted inequalities, and state responsibility. (1) Who gets to define the parameters of a social problem and to what political end? (2) What role should the state play in defining appropriate sexual behavior between consenting adults and in regulating its practice? (3) Which individual rights are inalienable and worthy of state protection? (4) What responsibility does the state have for safeguarding public safety and public health? (5) How should policing acknowledge and respond to the significant and historically rooted ethnoracial, class, citizenship status, and gender inequalities manifested within and replicated by the sex industry’s existence? (6) How is “help” defined and to what political end, and how can policing practices ensure that “help” is provided on terms that benefit all members of society?
Globally, policing sex workers involves much more than the interactions that take place between people in the sex industry and the criminal justice and social services professionals tasked with their oversight. Prostitution’s enduring existence in and of itself underscores the fact that societies throughout the world must engage not only with the profound philosophical, moral, and ethical questions it raises for policing, but also with pressing issues related to a society’s responsibilities to the individuals who comprise it. Hence, pragmatic solutions to policing and regulating sex work must be developed with respect not only to local context but also to the fundamental reality that people everywhere in the world should have the right to earn a living, to exist in what they regard as a fair and just society, and that evidence—not morality—should drive law and public policy.
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