Regulating Sex Work Adrienne D. Davis1 VERY ROUGH DRAFT: please do not circulate or quote without permission Most commentators on sex markets focus on the debate between abolitionists and those who defend and support professional sex workers. This paper, instead, looks at debates among the pro-sex work camp, uncovering some latent tensions and contradictions. It shows that, within the sex as labor camp, some stress the labor aspect, urging that professional sex workers constitute a “vulnerable population,” similar to other laborers who perform highly risky and/or exploited labor, and should be regulated accordingly. In this view, sex work would be assimilated into other labor. Others, though, take a more libertarian approach. They exceptionalize this form of labor, arguing that because it is sexual it should be exempt from state scrutiny and interference. In sum, while both agree that professional sex work should be decriminalized, when one turns from the criminal to the regulatory perspective, the paper shows how libertarians and assimilationists could not be more opposed. The paper contends that neither of these views is satisfactory. Sex work could very well be legalized—if we have the political and moral will to do so. The paper explores a regulatory structure that might govern sex work markets. To do so requires a break with both assimilationism and erotic exceptionalism. The paper proceeds in four parts. The first part explores the discourse and debate over professional sex. It summarizes, briefly, the abolitionist position, often identified as the dominant feminist position. It then turns its attention to the pro-sex work camp, teasing out various strains. While most legal discussions of sex work address the debate between sex work advocates and abolitionists, by focusing within the sex work discourse this Section reveals a latent tension within it, those who emphasize the sexual part of sex work to argue for a libertarian end-state, versus those who emphasize the labor part of sex work and see “work” as a way to demand greater state regulation of sexual commerce. Thus, while both view “work” as a legitimizing lens, they ultimately envision starkly different, even contradictory, relationships between sexual commerce and the state. Thus, while both may urge decriminalization, assimilationists and exceptionalists are quite opposed. The second section shows how the rhetoric of sex is “just” labor can be overly simplistic and terribly misleading. From a policy perspective, merely insisting that sex is “just” work/that sex be assimilated into work invokes a monolithic, idealized workplace that ignores the starkly different manifestations of work and its regulation in post- industrial global economies. This section explores how employment, labor, and discrimination law regulate the various hazards, risks, conflicts, and disputes that arise in the modern workplace. In the process, it exposes the complete diversity of work and its regulation. Although assimilationists clearly have in mind a vision of how “work” is 1 The conceptualization of this project has benefitted immensely from conversations with Susan Appleton, Scott Baker, Marion Crain, Elizabeth Glazer, John Inazu, Greg Magarian, Eric Miller, Mireille Miller- Young, Adele Morrison, Anca Parvulescu, Bob Pollak, Jeff Redding, Laura Rosenbury, Peggie Smith, Susan Stiritz, and Rebecca Wanzo, as well as the Washington University School of Law Faculty Colloquium and the Washington University Political Theory Workshop, the Hofstra Colloquium on Law & Sexuality, and my Ladies Who Do Theory Writing Group—Gretchen Arnold, Marilyn Friedman, Ruth Groff, and [Linda Nicholson]. 1 regulated, their claim to a universal workplace or regulatory structure is a miscue from how labor law actually functions. Workplace regulation today is varied, differential, and under immense contest. The second half of the paper then turns its attention to whether sex work could be effectively regulated, once we break from both assimilationism and exceptionalism. Section III stresses the extent to which sex workplaces are not like most workplaces. Most workplaces are not characterized by the particularities of sex work, the culture of alcohol and drinking and drugs; the homosocial “mob” context; the blurred line between re-negotiations and assaults; a similarly blurred line between on-site/off-site (that is on- duty/off-duty) identities; and employer expectations of “free” services that can combine to make sex for hire more dangerous for workers than other forms of labor. Crucially, the danger is coming largely from customers and patrons (and managers and owners) rather than from machines or mine collapse. Additionally, the assimilationist/“sex is just work” mantra misses the ways that sexual services differ from each other, posing what the paper shows to be radically different regulatory challenges.2 It rejects schema rooted in moralism that categorize sex for hire along lines of proximity to intercourse. (Such schema tend to envision sex for hire on a continuum based on sexual contact between workers and consumers, envisioning lap-dancing as midway between phone sex and prostitution.) The paper contends instead that, from a labor and regulatory model, the inquiry would be worker danger and safety, replacing morality with geography. Taking seriously the challenge of legalizing, not just decriminalizing sex for hire, the paper suggests a different schema, of sexual geography. In this model, the most dangerous jobs are those that take place in purely private spaces, frequently with multiple consumers and little protection for workers. This would include non-brothel prostitution (street or escort) and out-call exotic dancing (Duke LAX, two dancers working in a house rented by an athletic team, is emblematic). The middle category are those forms of sexual services that take place in commercial establishments open to the public, frequently with multiple workers servicing multiple consumers, e.g., prostitution in brothels and club dancing, whether contact or non-contact. In these contexts, management is well-situated to protect workers. Finally, the least dangerous are those services in which the worker and consumer are in different geographies, e.g., phone sex and other new media sex, although account must also be made for the physical proximity of employers and supervisors. Governance should replace a moral with a danger continuum.3 In sum, the rhetorical claim that sex work is “just like” any other work is a miscue, one that distracts us from both the distinctiveness 2 Cf. Laurie Shrage [add cite] (rejecting any unitary meaning of prostitution and instead contending it is historically and culturally specific). See also Prabha Kotiswaran, Born unto Brothels: Toward a Legal Ethnography of Sex Work in an Indian Red-Light Area, 33 LAW & SOC. INQUIRY 579 (differentiating prostitutes according to their contractual autonomy and relationship to property tenancies); Elizabeth Bernstein, What’s Wrong with Prostitution? What’s Right with Sex Work? Comparing Markets in Female Sexual Labor, 10 HASTINGS WOMEN’S L.J. 91 (comparing how race, body capital, and other factors shape street prostitutes experiences in San Francisco). [: should I add Cabezas here? (breaking down monolithic categories of sex work).] 3 “Danger” or risks from sexually transmitted diseases, however, do continue to map onto the sexual, moral contact continuum. The paper discusses how these health risks might be managed, drawing from the pornography industry’s experience with self-regulation, whose effectiveness is highly debated. [ check Dan Kahan’s work on how questions of science turn into culture wars. Is it relevant?] 2 and the diversity of sex work. Even taking into account the diversity of workplaces, sex work would almost certainly pose distinctive regulatory challenges. Contrary to the assimilationists, if markets for sex are to be not merely decriminalized, but also what many advocates for sex work urge, fully legalized with attendant worker rights and protections, then we must take account of the particular characteristics and regulatory challenges posed by commodified sex.4 Other aspects of sex work, though, might be tougher to regulate. Some sex work advocates find the idea of brothel or dance club owners or other sex employers taking account of patrons’ racial or other bodily preferences, as well as their fetishic preferences, inherently offensive, or “degrading.” If safety standards regulate much workplace danger, then advocates imagine that the consumer preferences they view as degrading will be dealt with through the application of anti-discrimination norms (again one hears, it’s “just like any other workplace, e.g., selling a sweater.” What we uncover is a latent ambivalence among nominally pro-sex work campers. The quick embrace by some of this imagined set of regulations manifests their ambivalence: even as they urge professional sex be denominated as legitimate work, they turn to discrimination law to delegitimize and eradicate the sexual preferences that comprise this market. This imagined set of regulations will rid sex markets of outré customer preferences once and for all, firmly entrenching vanilla as the sexual norm. While many advocates for legitimized sex markets avoid the language of moralism here, instead urging the “same protections” for sex bargainers as currently are given to other workers, I argue that, again, this misunderstands how sex markets work and their distinctiveness. Hence, the Essay concludes that