Why Legislating Sex Work Is Problematic

In light of California’s mandatory condom laws for adult performers, I’ve been thinking about why governments feel the need to step in and legislate sex work (I say legislate when often it is criminalized, but here I’ll be focusing on laws that regulate rather than prohibit).

First, let’s think of people we categorically make laws about. Children: they have to go to school, they have to be under a legal guardian until they reach a certain age, and so on. Prisoners: they do not have full legal rights, but they retain many other rights, such as access to basic minimum living standards. The poor: there’s a whole body of laws, historically dating back to the Elizabethan era in England, governing employment and aid opportunities for the underprivileged.

What do all these people have in common? They’re seen as unable to take care of themselves, in need of assistance from the government and from other institutions. It’s not just that they won’t make the right choices – what kid wouldn’t have candy every day given the choice? – it’s that they are incapable of making the right choices in this model of thought.

By attempting to legislate sex work, lawmakers are placing sex workers in the same category of underprivileged people who cannot be trusted to make their own decisions. To be sure, sex trafficking occurs and is a horrific human rights violation. In this piece, however, I’m specifically addressing instances that cannot be classified as trafficking, because the sex workers enter into those interactions voluntarily.**

Additionally, when well-meaning legislation is created that does not take into account the actual conditions of those people’s lives, it can be disastrous. How many legislators do you think actually went and talked to some sex workers in order to ask how, say, mandatory condom use would affect them? Probably none. In states where certain kinds of sex work or adult performances are illegal, sex workers have even less incentive to out themselves, since they’d risk facing criminal charges for identifying themselves as such.

A UN study found that decriminalizing sex work in New Zealand and New South Wales has had a positive effect on the working conditions and abilities to negotiate for safer sex. Australian HIV healthcare policies are also able to openly address the issues that are specific to sex workers and HIV, which is helpful.

This journalist’s account of talking to an adult performer about the California condom laws is a great example of how a person willing to have a dialogue with a member of the community in question can learn something – if they go into it with an open mind. The journalist found that the community is essentially self-regulating when it comes to disclosing STI status and making informed choices about when and whether to use condoms. So why should lawmakers interfere?

As a folklorist, I’ve always believed that if you want to know about someone’s life, you should ask them directly. At the same time, people usually only have access to partial truths about their lives, because most of us aren’t  taught to critically analyze our role in society, and which cultural norms have shaped us how. That’s why we need to put voices from the community into dialogue with policymakers, and cease the patronizing, infantilizing practice of legislating sex work as though these people are incapable of handling their lives themselves. Ally organizations and activist groups such as the Sex Workers Project can also play a role here, and there are plenty of brave bloggers discussing their own experiences as sex workers (Maggie Mayhem is a favorite of mine).

To that end, if I’ve misrepresented the nature of sex work or adult performance here in this article, I apologize and request that someone from the community contact me and correct me. I’m just an academic who’s good at spotting patterns and analyzing cultural trends – you know more about your lives than I do. Not that it’s your job to teach me, but hopefully I can use this blog as a platform to correct false impressions about sex work and sexuality in general.

**Yes, I’m aware that the question of whether anyone can consent to sex work is still being debated. Numerous early and contemporary feminists believe that sex work is inherently degrading to women (this website gives a good overview of their points). I absolutely condemn the practice of forcing people to engage in sex work, but I do believe that consenting adults are capable of choosing to enter the profession. However, I am a little skeptical about how often that occurs, given the matrix of oppressive forces that keep women in lower income brackets and in abusive relationships.

I’d also like to note that the economic model of sex is partly to blame for the commodification of people’s sex lives, in such a way that harms sex workers. The fact that they’re selling sex acts becomes seen as integral to their identities. That makes it really difficult to have a value-neutral conversation about sex work, since people get all wrapped up in who that person IS rather than what they DO. And we all do various things, but if I drink soy milk does that make me a Soy Milk Drinker for all eternity? Why on earth would that happen with sex acts but not other facets of life? Our culture, in case you hadn’t noticed, has some pretty messed up ideas about sex.

About Jeana

Jeana

Jeana Jorgensen, PhD recently completed her doctoral degree in folklore and gender studies at Indiana University. She studies fairy tales and other narratives, dance, body art, feminist theory, digital humanities, and gender identity.