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Regulating Sex Work: Erotic Assimilationism, Erotic Exceptionalism, and the Challenge of Intimate Labor

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Regulating Sex Work: Erotic Assimilationism, Erotic Exceptionalism, and the Challenge of Intimate Labor Regulating Sex Work: Erotic Assimilationism, Erotic Exceptionalism, and the Challenge of Intimate Labor Adrienne D. Davis* Most commentators on sex markets focus on the debate between abolitionists and those who defend and support professional sex work. This Article, instead, looks at debates within the pro-sex-work camp, uncovering some unattended tensions and contradictions. Some within this camp stress the labor aspect, urging that sex markets perpetuate a “vulnerable population” of workers and should be regulated like other forms of risky and/or exploited labor. In this view, sex work would be assimilated into existing labor regulatory frameworks. Others, though, take a more antiregulatory stance. They exceptionalize this form of labor, arguing that because it is sexual it should be exempt from state scrutiny and interference, claims that can quickly sound libertarian. While both camps agree that professional sex work should be decriminalized, when turning from the criminal to the regulatory perspective, erotic assimilationists and erotic exceptionalists could not be more opposed. The Article contends that neither of these views is satisfactory. Sex work could very well be legalized and regulated—if we have the political and Copyright © 2015 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Vice Provost and William M. Van Cleve Professor of Law, Washington University. The conceptualization of this project has benefitted immensely from conversations with Susan Appleton, Adam Badawi, Scott Baker, Kate Bartlett, James Boyle, Mary Anne Case, Guy-Uriel Charles, Marion Crain, Deborah Dinner, Emily Danker-Feldman, Elizabeth Glazer, Jane Green, Jayne Huckerby, John Inazu, Holning Lau, Greg Magarian, Goldburn Maynard, Eric Miller, Mireille Miller-Young, Adele Morrison, Amber Musser, Anca Parvulescu, Bob Pollak, Jed Purdy, Jeff Redding, Gabe Rosenberg, Darren Rosenblum, Laura Rosenbury, Carisa Showden, Peggie Smith, Susan Stiritz, Rebecca Wanzo, Deborah Weissman, and Robin West, as well as the Washington University School of Law Faculty Colloquium and the Washington University Political Theory Workshop, the Women Law Student Association Reading Group at Duke Law School, the Hofstra Colloquium on Law & Sexuality, the University of California, Irvine Law School Faculty Workshop, the University of Southern California Law & Humanities Workshop, and my Ladies Who Do Theory Writing Group—Jami Ake, Gretchen Arnold, Marilyn Friedman, Ruth Groff, Wynne Moskop, Linda Nicholson, and Elisabeth Perry. For research assistance, I thank Anne Houghten Larsen, Yijie Shen, the Washington University School of Law Library, and especially Jessica Hille. 1195 1196 CALIFORNIA LAW REVIEW [Vol. 5:1195 moral will to do so. Ultimately, this Article breaks hard with erotic exceptionalism and slightly less so with erotic assimilationism to explore a regulatory structure that might govern sex markets. While many sex work regulations could fit into the current legal frameworks that govern workplaces, I contend that there are unique characteristics of sex work that make it much harder to assimilate into current regulatory regimes, especially in the controversial realm of antidiscrimination law. Introduction .................................................................................................. 1197 I. Discourses of Sexual Labor: Abolitionism, Assimilationism, and Exceptionalism .................................................................................. 1205 A. The First-Generation Debate over Professional Sex .................. 1207 B. The Sex-as-Labor Claim ............................................................ 1212 1. Decriminalization, or Erotic Exceptionalism ....................... 1214 2. Legalization, or Erotic Assimilationism .............................. 1218 C. Summary .................................................................................... 1220 II. Testing Erotic Assimilationism ................................................................ 1221 A. Full-Time Employee Benefits and Collective Bargaining ......... 1222 B. Mitigating and Compensating Workplace Hazards ................... 1224 C. Employee Antidiscrimination Protections ................................. 1231 1. Sexual Harassment ............................................................... 1232 2. Disparate Treatment ............................................................. 1232 D. Summary .................................................................................... 1241 III. Professional Sex: A New Mode of Work ............................................... 1243 A. Peculiarities of Markets for Sex ................................................. 1243 B. Sexual Geography and Mitigating Risks ................................... 1251 1. Violence ............................................................................... 1251 2. Other Health Risks ............................................................... 1256 3. Sexual Geography and the Threshold Employee Test ......... 1257 4. Summary .............................................................................. 1258 C. Discrimination ........................................................................... 1259 1. Sexual Harassment ............................................................... 1259 2. Disparate Treatment ............................................................. 1262 3. Assimilationism Redux ........................................................ 1270 D. Summary .................................................................................... 1272 Conclusion .................................................................................................... 1273 2015] REGULATING SEX WORK 1197 “[J]ust what is so unique about sex-work?”1 INTRODUCTION Much of Western Europe is currently in the grips of a revolution in how sex work is understood and regulated. Begun in Sweden, the strong trend is to criminalize the purchase of sex, but not its sale. What is becoming known as “the Swedish model” rests on the work of anti-sex-work feminists who have successfully framed sex markets as a gendered species of human trafficking that denies women full citizenship. With Norway, Iceland, France, and most recently the entire European Parliament endorsing it, the Swedish model of asymmetric criminalization appears poised to become the dominant one in Western Europe. In contrast to these heated debates over changing the regulation of sex markets, the United States seems locked in, and indeed largely satisfied, with its own antiquated model of complete criminalization. Some feminist scholars, self-described sex market abolitionists, hope to move the United States’ criminal model toward the Swedish one; indeed, some have been active in the European abolitionist movement. What of the other side in the United States— those who advocate for professional sex and sex markets? While abolitionist feminists have developed the Swedish model, evolving ever more refined regulatory visions and accompanying conceptual frameworks, the pro-sex-work camp appears to be in regulatory stall. This may be a product of devoting most of their analytic energy to engaging with abolitionists and neglecting the development of a commensurate regulatory vision. Even determining the legal status of prostitution—just one of the contested forms of sex work—is complicated. While some countries completely criminalize prostitution, in most it has some sort of legally liminal status, in which some aspects are criminalized and others are not.2 Importantly, many jurisdictions differentiate between prostitution itself (i.e., selling sex or operating an establishment in which prostitution occurs, including brothels) and 1. Heidi Tinsman, Behind the Sexual Division of Labor: Connecting Sex to Capitalist Production, 17 YALE J. INT’L L. 241, 241 (1992). 2. ProCon.org is a website that surveyed a hundred countries, seeking to be “inclusive of major religions, geographical regions, and policies towards prostitution.” 100 Countries and Their Prostitution Policies, PROCON.ORG (Apr. 1, 2015), http://prostitution.procon.org/view.resource .php?resourceID=000772; see also ELAINE MOSSMAN, INTERNATIONAL APPROACHES TO DECRIMINALISING OR LEGALISING PROSTITUTION (2007), http://www.justice.govt.nz/policy /commercial-property-and-regulatory/prostitution/prostitution-law-review-committee/publications /international-approaches. Germany exemplifies how difficult it can be to discern the status of prostitution. Some set Germany’s legalization date at 1927, when the country passed its Law for Combating Venereal Diseases. Others, though, insist that the relevant date is the 2002 passage of the Prostitution Act because prior to that, although prostitution was legal under the German Constitution, both regulations and court decisions restricted the legal and social welfare rights of prostitutes because prostitution was considered in violation of Germany’s moral code. 1198 CALIFORNIA LAW REVIEW [Vol. 5:1195 “pimping” (defined variously as “assistance” or “living off the earnings of prostitution,” “controlling prostitution for gain,” or “exploitative” or “coercive” behavior).3 In one study, thirty-eight of the one hundred countries surveyed currently completely criminalize prostitution.4 In every country that criminalizes prostitution, brothel ownership and pimping likewise are illegal.5 Liability and
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