The central and uniting demand of the sex worker rights movement around the world is the decriminalization of consensual adult sex work. This is based on the recognition that criminal law intervention makes sex workers less rather than more safe, and that sex workers are engaged in a legitimate form of work, not the commission of a crime.
A core task of activists and academics has been amassing evidence that criminalization of the seller, buyer, and associated activities impacts negatively on the safety and well-being of sex workers. For 10 years I have conducted empirical work and have organized with sex worker rights and anti-capitalist feminist groups in London and Jamaica, as well as European based organizations that support decriminalization. As a result, I agree that criminalization makes sex work less safe for those selling sex and normalizes their abuse by clients and third parties, including their bosses and the police.
This perspective has found a foothold in some countries as well as in national and international organizations. The countries that have decriminalized (some, not all) prostitution-related activities include New Zealand, Australia (New South Wales, Queensland), Germany, Netherlands, and the USA (Nevada). Reviews of existing research and consultation with sex workers and activists have been conducted by organizations that have no necessary investment in favouring decriminalization.
In 2015, after two years of primary and secondary research in Papua New Guinea, Hong Kong, Norway, and Argentina, Amnesty International passed a resolution supporting the decriminalization of all aspects of consensual adult sex work. The policy advocates the repeal, and commitment not to introduce, laws that criminalize the sale, purchase, and organization of sex work related activities, including brothel keeping.
Amnesty International’s research has confirmed that laws criminalizing buyers and the organization of sex work related activities (such as brothel keeping) force sex workers into conditions that compromise their safety and discourage them from approaching the police for protection. It therefore recognizes the harm of criminal laws beyond those that directly target individual sex workers.
What, then, is the future of sex work beyond decriminalization? In May 2019, the Sex Worker Advocacy and Resistance Movement (SWARM) marked ten years of organizing with ‘A Decriminalised Future: Sex Workers’ Festival of Resistance’, where I am chairing a panel on the Future of Work that brings together Selma James (founder of the International Wages for Housework Campaign and author of The Power of Women and the Subversion of the Community, and Sex, Race, and Class – the Perspective of Winning), Layla-Roxanne Hille (SWARM) and Will Stronge (Autonomy). In my existing research and a chapter for the forthcoming Criminality at Work collection (edited by Alan Bogg, Jennifer Collins, Mark Freedland and Jonathan Herring), I examine the future–oriented demand of sex worker rights activists: that sex workers, and specifically those who work in prostitution, be recognized as engaged in a legitimate form of work that should not be criminalized.
Activists and academics that focus on the work of sex work argue for full decriminalization of (consensual) sex work and the extension of labour law protections. If achieved, such changes would necessitate engagement with the actual and desirable application of labour law and criminal law to personal work relations.
But the implications of the demand for labour rights and criminalization in the (sex)workplace have not been adequately thought through.
First, there is a tendency to assume that sex workers in brothels have labour rights. It is only partially correct that labour law governs brothels in decriminalized jurisdictions. As I have argued elsewhere, de jure application of labour rights to brothels has not, to date, been matched by de facto application. Second, and the focus of this blog, is an assumption that criminal law ends when labour law starts. On the other hand, there is an endorsement of certain criminal laws including offences against the person (assault and rape) and labour abuses (trafficking and forced labour) and a strong critique of the “carceral feminist” agenda (which attempts to solve the “problems of prostitution” by using sexual offences and trafficking legislation). How, then, might those who focus on the work of sex work differentiate their approach to criminal law intervention from carceral feminism? How should activists and academics concerned with workers rights for sex workers critically engage with criminalization of personal work relations?
Capitalism, unfreedom and criminal law
The value of criminalization of all personal work relations needs to be assessed in the descriptive and normative context of unfreedom. Alienation and exploitation are structural features of capitalist societies. This lived reality of unfreedom is, however, masked by the appearance of capitalist social relations in the voluntary and equal exchange of alienable property for payment. These structural unfreedoms exist on a continuum and increase or decrease in severity according to the balance of class forces. But they cannot be completely eliminated within class–structured societies. Unfreedom is not natural or inevitable and can be ameliorated by the conscious collective organization of workers. Whilst human emancipation of our labour is impossible within capitalist social relations, we might think of ‘freedom’ here as workers’ conscious control over their labour and lives.
My approach to this draws from Marxist Feminism. First, unfreedom is gendered and racialized. Second, control over our labour and lives cannot be limited to freedoms in the workplace. ‘Free’ labour exists where waged and unwaged labour are embedded in a system of labour and social rights and protections. Once we situate the criminalization of personal work relations in the larger landscape of capitalist class struggle, it becomes clear that its proper use ought to be mitigation of worker unfreedom. However, the dialectical other of class struggle from below is class struggle from above. We therefore have to pay equal attention to the capitalist interests that shape, and the effects of, criminality at work.
Histories of the transition to capitalism in England, and its ongoing transformation in the nineteenth, twentieth, and twenty–first centuries, have widely acknowledged the use of criminalization to facilitate the (continuing) accumulation of land and labour necessary to turn a profit. Criminalization is a constant feature of global capitalism and has been integral to nation building, colonization, and settlement projects. The history and present criminalization of personal work relations reveals a tendency, in design and/or effect, and in combination with labour and immigration law, to facilitate the exploitation and alienation of formally free workers by penalizing their mobility and ability to exit or enter into work.
The recent history of the criminalization of personal work relations differs from the eighteenth and nineteenth century focus on penalizing workers who refused or quit work. The end of the twentieth century, and into the twenty-first, has been marked by the criminalization of entry to work. Judy Fudge, who writes elsewhere in this edition of Futures of Work, makes the important observation that the overwhelming concern today is with ‘abusers’ of the system; “the ‘illegal worker’ and ‘unscrupulous employer’ figure as the objects of legal opprobrium.” Julia O’Connell Davidson has highlighted similar contempt for ‘traffickers’ and ‘smugglers.’ Criminalization mystifies the real sources of abuse and exploitation, including deregulation, restrictive immigration law, and the hostile environment, and it exacerbates, or does little to alleviate, the unfreedom of migrant workers.
Fudge convincingly argues that there is logic at play here. Illegal working laws in the UK are being used to respond to the “governance crisis concerning the deteriorating outcomes for workers labouring in the bottom half of the UK’s neo-liberal labour market.” British workers are being conned into thinking that the government’s light–touch agenda for labour is the best approach and that the real problem is individual bad apples that ‘abuse’ the system. The recent criminalization of entry to work tells us that we cannot necessarily equate worker protective criminal laws with successful class struggle from below. These criminal laws may not protect migrant workers, but they do appease British workers.
Prostitution as work and criminality at work
Bringing this Marxian lens to bear on prostitution, if brothels in the UK were viewed as employing sex workers how might we understand the ongoing role of criminal law in the workplace?
There is an important discussion to be had about the interaction of labour, criminal, and tort law for protecting sex workers as employees (or workers) from abuse and violence at work. Sex workers in brothels would benefit from exercising the ‘right of refusal’ and this right would likely apply regardless of employment status. Instances of coercion and violence from both bosses and clients would be dealt with as offences against the person.
Tort and labour law could also deal with the crimes and mistreatment to which sex workers would likely be subject. It is possible that sex worker employees in brothels (and potentially their families in cases of homicide or death) could claim damages if shown that the employer breached their common law duty of care. This tort-based duty requires that employers provide a ‘safe system of work.’ This includes protection against physical and psychological injury and the employer is responsible for any failure to protect against common dangers, even when the worker is knowledgeable and experienced.
This common law duty would arguably extend to any failure to adequately protect sex workers from the common danger of client violence. Criminal sanctions for the health and safety breaches of bosses would also most comprehensively cover sex worker employees. As employees, sex workers would have some health and safety responsibilities, but the employer would bear the brunt of them.
The other area of criminal law that regulates poor treatment of workers by employers and third parties is contained in the Modern Slavery Act 2015, covered elsewhere in this issue of Futures of Work and in previous editions by Virginia Mantouvalou and Chris Pesterfield. If prostitution–related activities were no longer viewed as sexual offences, the Act would need to be amended to remove the distinction between sexual and labour exploitation. Prosecution would then be a possibility for those that subject sex workers in brothels to Article 4 abuses: slavery, forced labour, servitude etc, including when these abuses constitute the ‘purpose’ of trafficking. This criminal law protection would apply regardless of employment status – although, of course, trafficked sex workers that are in the country illegally would have no contractual rights such as unpaid wages.
Both health and safety protections and protection against coerced or forced labour could, in theory, help deliver freedom for sex workers. As employees, prostitutes in brothels would also enjoy the workplace freedoms they currently demand, as well as others. These should be combined with broader freedoms that relate to unpaid labour. Employers and the state ought to deliver these paid and unpaid labour freedoms for all sex workers, regardless of, for example, immigration status.
But the dialectical other of ‘class struggle from below’ is ‘class struggle from above’. Our current historical conjuncture is characterized by widespread unfreedom. There are powerful material interests favouring deregulation of the labour market, contraction of the welfare state, and the scapegoating of ‘abusers’ of the system.
Increasingly, labour law scholars argue that anti-trafficking and modern slavery legislation should, and could, be reoriented towards a worker-protective model and labour protections for all workers, regardless of immigration status. However, it seems highly unlikely that concern with trafficking and modern slavery will be the vehicle through which protections for all workers will be delivered. This is because the raison d’etre of anti-trafficking law is criminal law and border enforcement. It is also a strategic ‘worker protective’ concern being deployed by governments that in fact want to limit waged and unwaged labour protections.
The usefulness of the Modern Slavery Act for sex worker employees would therefore be limited to the potential criminalization of their exploiter. At the same time, ‘illegal’ migrant sex workers will continue to experience extreme levels of unfreedom. They will be excluded from employee protections and could be penalized for illegal working. Their only real freedom will be the potential criminalization of their exploiter under the Modern Slavery Act.
There are also limits to what many employers can offer service-based workers within capitalist social relations. Take our example of prostitution in brothels. What is produced is not a tangible commodity that can be sold on to generate further profit. The commodity is the sexual service, which is extinguished in its single use. This is why bosses in the sex industry do not want their workers to be employees. Many would struggle to make a profit and would go out of business. It is not too dystopian to presume monopolies would emerge and sexbots would replace sex workers.
This does not mean that nothing can be done, or that labour and criminal law lawyers should cease attempting to improve legal protections and access to justice for (sex) workers. But it is important to stress the contradictions and ambivalence of worker protective criminal law-based strategies for sex worker employees or workers in brothels. Not all worker protective criminal law intervention will contribute to the freedom of sex worker employees or workers, and degrees of unfreedom will persist. And any net gain in the freedom of sex worker employees and workers will not be extended to ‘illegal’ migrant sex workers.
Prostitution as Work, Work and Freedom
The demand for the decriminalization of prostitution is gaining momentum. It is increasingly accepted that criminal law intervention via a sexual offence framework makes workers less, rather than more, safe. The movement, allies, and academics also argue that sex work is a form of work that should not be criminalized. But the prostitution–as–work position is unclear about the content of their demands for labour rights and workplace protections, and what the continuing role of criminalization should, or could, be in the (sex) workplace.
Understanding the possibilities and limits of criminality at work, while imagining brothel-based sex workers as employees/workers, requires attention to the relationship between capitalist social relations and class struggle. Unfreedom (exploitation and alienation) is the gendered and racialized reality of capitalism that ebbs and flows according to the balance of class forces. The potential and limits of criminalization of personal work relations therefore need to be understood and assessed according to whether it ensures more or less freedom for sex workers.
Ultimately, however, as some within the sex worker rights movement recognize, real freedom will entail moving beyond capital–labour relations. This is because capitalism is premised on exploitation, alienation and the destruction of the environment in the ceaseless quest for new markets. Meaningful collective control over work is anathema to capitalist societies. Work should not be reduced to wage labour, but rather recognized as a vital part of human existence. The goal is to minimize the need to work in order to survive and to maximize time for what Marx called “really free working.” Whether, in the absence of unfreedom, people would choose to engage in ‘sex work’ as a ‘really free’ activity is another debate.
Katie Cruz is Lecturer in Law at the University of Bristol