Feminist Perspectives on Prostitution as an Illegal Contract - Essay Example

? Feminist Perspectives on Prostitution as an Illegal Contract Introduction Contracts for an illegal purpose will not be enforced by the courts In the UK, prostitution per se, is not illegal. However, many activities associated with prostitution such as kerb crawling, solicitation, living of earnings from prostitution, operating a brothel and advertising prostitution services are all illegal.2 Nevertheless, at common law, contracts purporting to support or encourage a sexually immoral act will be regarded as illegal and thus deemed illegal contracts.3 Prostitution is regarded as the promotion of sexual immorality and as such, any contract involving prostitution is regarded as an illegal contract.4 The liberal feminist or contractarian perception of prostitution argues that absent the use of force, prostitution is a legitimate economic choice for women and thus should be treated as any other contract of service or employment.5 Radical feminist theorists however, argue that prostitution involves selling one’s body and is not simply the “use of the human body” but also the “sexual use of a woman’s body”.6 Radical feminist theory is consistent with the perceptions that prostitution is immoral and thus contracts involving prostitution would be illegal. Liberal feminist theory dismisses the immoral characterization of unforced prostitution and argues that prostitutes should be accorded the protection of the law via the law of contract and in particular service or employment contracts. This paper examines the rationale for rendering contracts involving prostitution illegal by reference to radical feminism and the rationale for legalizing and enforcing prostitution contracts via liberal feminism. Radical Feminism Radical feminism takes the position that prostitution is “an abuse of human rights” regardless of whether it is forced or agreed to and as such, should be outlawed.7 The claim that prostitution is an abuse of human rights is founded on the perception that prostitution is no more than an act of male dominance over females and thus represents discrimination against women.8 However, radical feminism is flawed in that it assumes that women are victims and their customers are “predators”.9 Certainly, informed by radical feminism, an argument can be made in support of illegalizing contracts involving prostitutes in cases where the prostitute is forced into prostitution or is a minor. However, women who voluntarily turn to prostitution, may not see themselves as forced into the trade and will not likely see themselves as victims. From the perspective of radical feminists, prostitution represents the “subordination”, “degradation” and “victimisation” of women by men.10 Radical feminists argue that prostitution by definition is an act of violence. In this regard, there is no such thing as “voluntary prostitution”, because it invariably involves some form of force, “even if the worker is unaware of it”.11 Radical feminist Susan G. Cole characterizes prostitution as institutionalised male dominance and likens it to institutionalised slavery and dominance by the White race. In institutionalised slavery Blacks were hurt and via institutionalised prostitutions women are hurt.12 Radical feminist Andrea Dworkin argues that prostitution cannot be understood by reference to the exercise of individual choice. According to Dworkin, prostitution together with rape “negates self-determination and choice for women”.13 In general, radical feminists argue that prostitution is an inherently harmful institution for women on three specific grounds. Firstly, prostitution involves purchasing a service that involves the degradation of the women offering the service. Secondly, prostitution itself relies on the perpetuation of inequality in terms of social and economic statuses and power between the prostitute and her client. Finally, prostitution “contributes to the perpetuation of the inequalities” underlying the “practice”.14 With respect to the first ground that prostitution involves the purchase of a service that degrades women, Dworkin argues that men who purchase sexual services from women do so out of a residual “hatred for the female body”.15 Dworkin goes on to acknowledge that while there are prostitutes who argue that prostitution is a degrading practice, there is evidence that a great many prostitutes endure extreme pain and suffering. The pain and suffering experience by a great number of prostitutes far exceeds any degree of discomfort traditional workers experience. The pain and suffering experienced by many prostitutes can be aligned with rape, sexual harassment and domestic violence.16 The second claim that prostitution institutionalises inequalities in terms of social status and power relies on the contention that male clients have greater power and are more privileged than the female prostitute. Moreover, it is claimed that men use this power and status imbalance to exploit the prostitute who is poor, powerless and typically has a “history of sexual abuse”.17 Radical feminist take the position that the mere fact that women are willing to be prostitutes is a manifestation of the unfair imbalance between men and women. The argument contends that: Since no rational person would willingly be consumer as a sexual object, prostitution is necessarily a form of exploitation: its existence depends on the role social inequality plays in ensuring that the socially more powerful have access to sexual objects of their choice.18 Thus the assumption is that women are rendered powerless by social conditions and women who choose prostitution are either irrational or victims of societal conditions. It therefore follows from this that prostitutes are robbed of free choice or are incapable of making a free choice and are therefore incapable of freely engaging in prostitution. As a result, prostitution cannot be the subject of an enforceable contract. However, as Weitzer points out, many of the radical feminist claims about the nature of prostitution are not supported by empirical studies and rest purely on untestable assumptions. For instance, it is not possible to test the assumption that men who purchase sexual services are expressing a pure hatred for women. Nor is it possible to make such a sweeping claim with any degree of credibility.19 The third claim that prostitution is the perpetuation of social inequities between men and women rests on the assumption that women are perceived as “sexual objects” who are “available to any man who desires them.”20 Again this argument assumes that women are not voluntarily involved in prostitution and forced into it for one reason or another, but primarily as a result of social conditions. If radical feminists were to accept that some women engage in prostitution voluntarily, the argument would fall apart, because it is actually the female prostitute that makes herself available to men as a sexual object. The male client cannot avail himself of this opportunity if the prostitute did not make her body available for a price. Liberal Feminism Liberal feminism adopts the contractarian view in defence of prostitution. In this regard, liberal feminism argues that when people engage in prostitution, there is a “free exchange between the prostitute and the client”.21 Thus like any other “worker”, prostitutes offer a contract for the temporary “use of her body” and as such the prostitute is not selling “herself” or “her body”.22 Thus for all intents and purposes, the prostitute is actually offering a service. All the elements of a contract of service therefore exist in the contractarian and liberal feminist conceptualization of prostitution. Assuming that the prostitute and the client are two competent adults, they are at liberty to negotiate the terms of a contract for service. Contractarian Lars Ericsson was particularly influential in the liberal feminism defence of prostitution. Ericosson’s contractarian arguments provides an extension of liberal concepts of “individualism, equality of opportunity, and the free market” by including sex in these concepts.23 Ericosson goes on to put his argument in defence of prostitution in perspective by comparing slavery to wage work. Wage work, unlike slavery involves the offering of and the corresponding acceptance of services for a fee and for a limited time. Moreover, burdens and benefits are split between the parties to the contract of services. Slavery is a lifetime commitment in which the slave assumes all of the burdens with no benefit. In this regard, prostitution is a form of wage work, like any other form of wage work and certainly not a form of sex slavery.24 Looked at from the perspective of contractarianism, prostitution is a legitimate form of work and thus should be subject to the contractual protection that all other forms of wage work is protected. Wage workers typically have rights that are particularised and protected by virtue of contract. Likewise, burdens and benefits are specified in the terms of a contract of service or employment. Prostitutes do not have a claim to contractual protection despite the fact that prostitutes perform services in much the same way as any other wage worker. Liberal feminism argues that prostitution is a viable commercial trade in which women with full self-autonomy are entitled to engage in if they wish.25 Unlike radical feminism, liberal feminism believes that freely choosing to offer sex for sale is a fundamental human right.26 Prostitution is essentially regarded by liberal feminist as a “victimless” operation, at least in circumstances where prostitution is freely engaged in.27 For liberal feminist, prostitution typically involves two adults entered into a contract for the parties own benefit.28 States also have the same “interests in prostitution contracts as in all other contracts” and should therefore seek to “regulate certain aspects by law”.29 The possible areas of state regulation would be, “hygiene, control of disease, minimum standards of service and working condition”.30 Thus from the perspective of liberal feminism, if a contract of prostitution is treated as a lawful and enforceable contract, prostitutes would be protected from instances of abuse and victimization. Liberal feminists essentially argue that prostitution should be reformed so that practices and the law are modified for the regulation of prostitution and to reform public perspectives of prostitution. For instance, Martha Nussbaum argues for the normalisation of prostitution in way that prostitution is accorded the same treatment as other forms of services.31 It therefore follows that in normalising prostitution and relegating it to the service industry, prostitutes can have their practices regulated by contract and benefit from the protection of the law like other services. In this way, prostitutes and their clients can tailor contracts to ensure that the prostitute is protected from all forms of abuse and both the prostitute and the client can negotiate a contract that commands healthy and safe working conditions. Liberal feminists argue that prostitution confers upon women “some benefits” and for many women prostitution is the “best overall employment option they have.”32 If prostitution is removed as an option, it would only exacerbate conditions for these women by removing the economic gains that they obtain from engaging in prostitution. Thus the main question is, what should happen to women who have no other viable economic options if they were not able to engage in prostitution? It therefore follows that in recognizing that many women engage in prostitution as a result of the absence of viable economic options, prostitution should be available to them under protection of the law. After all, prostitution is a harmless and victimless trade, only if it is properly regulated by law in much the same way as drugs are controlled and regulated by law. Liberal feminists also argue that it is intrinsically incorrect to label prostitution in terms of containing a single characteristic in terms of inequities between prostitute and client. For the liberal feminist there is diversity among practitioners and their clients and in many cases female prostitutes have greater status and power in society than their clients. In other words not all forms of prostitution can be characterized as having “problematic” features “in common.”33 It is therefore disingenuous to partition prostitution into generalizations of victim (prostitute) and predator (client). In many cases, both prostitute and client are both genuinely and voluntarily engaging in the practice with no underlying nefarious intention or influence. In the final analysis, liberal feminist focus their attention on the lived experiences of prostitutes. The main argument is that the best method of eradicating the harms and social ills associated with prostitution is to modify “the circumstances in which prostitutes work”.34 The most obvious solution would therefore be to legalise and regulate prostitution and to enforce contracts of service for prostitution. Should Contracts Involving Prostitution Be Illegal? Radical feminism does not take into account situations in which women voluntarily engage in sexual services/prostitution as an economic solution. Women who are forced into prostitution and young girls who have not attained the age of consent or majority should be protected by traditional laws of contract which do not enforce contracts made under duress and contracts in which one party is unable to or cannot give his or her consent. Liberal feminism takes a more realistic approach to contracts involving prostitution. Women who freely choose prostitution as an economic solution do not have the protection of the law and their clients may force them into sexual encounters without compensation, leaving the prostitute defenceless in the absence of an enforceable contract. Although a prostitute is at liberty to file a criminal complaint, she faces the prospect of prosecution on a charge of soliciting prostitution.35 Realistically, a contract is formed between the prostitute and the client. However, the contract is unfairly, unenforceable. Moreover, the claim by radical feminists that a great many prostitutes suffer the excesses of pain and suffering to an extent not suffered by traditional workers can be overcome if prostitution was regulated by contract the way that traditional work is regulated. Certainly if a prostitute and her client were bound by contract safeguarding both parties’ rights and duties, a prostitute would have the protection guaranteed by contract. It is also important to note that radical feminist arguments do not take account of the fact that there are also male prostitutes. Male prostitutes also suffer a great degree of degradation and marginalization.36 Certainly men who purchase services from male prostitutes are not assumed to be expressing a hatred of females. Additionally, it cannot be argued that men who purchase sexual services from male prostitutes are expressing subordination of women or are contributing to the perpetuation of social inequities between men and women in society. Anderson argues that prostitution is widely viewed as problematic in terms of the perceived harm it poses to “public health and quality of life of many others not directly active in it”.37 However, according to Anderson, much of the problems associated with prostitution are related to how prostitution is regulated.38 It therefore follows that the way that laws label prostitution and particularly the characterisation of prostitution as an immoral act and thus incapable of contractual status, impacts the way that prostitutes are treated and mistreated by clients and members of the public. For the most part, prostitution is driven underground and will automatically be associated with and linked to other criminal activities that are likewise driven underground. If regulated by contract and legal institutions commanding health and safety standards, many of the concerns and issues associated with prostitution would be eradicated. It therefore follows that the liberal view in support of legalising activities associated with prostitution is more conducive to eliminating the problems and concerns associated with prostitution. With the regulation of prostitution in a way that recognizes it as a viable economic option for men and women, prostitutes will be able to provide their services under lawful and enforceable contracts. Thus the dangers of prostitution that worry radical feminists will be reduced. As Anderson informs, prohibiting prostitution: ...contributes significantly to the hardships of prostitutes because it places them outside of legal protection, making them extremely vulnerable to predators who would exploit their relative powerlessness.39 Thus, the fact that prostitutes are unable to enforce contracts of service is a main contributing factor to the problems that radical feminists claim are associated with prostitution. Contratarians do not argue in defence of prostitution as it is currently constructed. Instead, as Ericsson argues, prostitution should be regulated so as to reflect a “sound” practice. Thus a number of reforms are necessary.40 In particular, a sound prostitution practice would involve removing the criminal elements. Prostitutes should have the same legal protections that all other service providers have and this would include the right to let premises for conducting their services. Prostitutes should also be protected from abuse and “exploitation by pimps and landlords” as well as from clients and many others who seek to take advantage of prostitutes. 41 In addition, safeguards must be adopted to ensure that teens and children are not permitted to engage in prostitution and those who facilitate teen and child prostitution should be prosecuted. Moreover, prostitution must be voluntarily chosen and not forced upon individuals. Only once prostitution is decriminalised and protected like any other form of wage work will it be “freed from emotional prejudice and stigma”.42 In the final analysis, much of the moral problems associated with prostitution is attributed to the decriminalization of prostitution or the decriminalization of solicitation of prostitution. It is thus the attitudes of the public which is perpetuated by the lack of legal protection and support for prostitution that renders prostitutes vulnerable to abuse and exploitation. It therefore follows that should prostitution be legalized or solicitation of prostitution be legalized, attitudes may change toward prostitutes and their profession, and prostitutes may suffer less abuse and exploitation. Once legalized and regulated like any other wage work, prostitutes can negotiate and enforce contracts of services and can expect to be protected from incidents of abuse and exploitation. Conclusion Liberal feminism takes a more realistic view of consensual adult prostitution. When a woman decides, free of force, to enter into sex commercial trade, she is exercising her own free will and should be able to enforce the terms and conditions of the contract against a client who reneges on the terms and conditions of the contract. However, there are some difficulties with enforcing the terms of a contract for prostitution services. First, there is the issue of associated criminal offense, particularly with regards to solicitation for the purposes of prostitution. Any contract setting out the terms and conditions of the prostitution agreement will invariably involve solicitation for the purpose of prostitution. Courts do not have the discretion to enforce contracts that break the law. It therefore follows that unless and until some aspects of prostitution are decriminalized, legalizing contracts of prostitution will be of no avail. Bibliography Textbooks Bell, S. 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