By: Asha McLachlan
May 19, 2021
Patriarchal tropes of “the perfect battered woman” often seen within the domestic violence context also prevent sex workers from obtaining the support needed to recover from similarly abusive power dynamics. Neglecting a significant segment of battered women for this reason contributes to systemic cycles of abuse either by forcing voluntary sex workers to rely on abusers in order to find work, or by preventing forced victims of sex trafficking from escaping abuse at the hands of their traffickers.1For the purposes of this paper, I will focus specifically on the male/female binary in domestic violence and sex work, and how traditional gender norms affect these relationships and our societal responses to them. It is worth noting, though, that trans, nonbinary, and male sex workers face similar circumstances of violence and neglect. See Kaniya Walker, To Protect Black Trans Lives, Decriminalize Sex Work, ACLU: News & Commentary (Nov. 20, 2020) https://www.aclu.org/news/lgbtq-rights/to-protect-black-trans-lives-decriminalize-sex-work/; Kathleen Culliton, For Black Trans Americans, the Epidemic is Violence, Spectrum News NY (Aug. 5, 2020) https://www.ny1.com/nyc/all-boroughs/news/2020/08/02/for-black-trans-americans–the-epidemic-is-violence.
Domestic violence is defined as “felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim.”2Domestic Violence, U.S. Dep’t. of Justice Office of Violence Against Women , https://www.justice.gov/ovw/domestic-violence. Domestic violence in romantic relationships relies on gendered dynamics of power and control, including coercion, threats, intimidation, emotional abuse, isolation, use of children to manipulate the victim, male privilege, and economic abuse.3 Elizabeth Schneider et. al., Domestic Violence and the Law: Theory and Practice , 62 (3rd ed. 2012). Domestic violence often looks like a woman enduring physical battery by her partner, or an abusive partner physically, psychologically, and financially preventing a victim of abuse from leaving the relationship.4 Id.
Sex trafficking requires the very same dynamics of power and control used in abusive romantic relationships. These dynamics are applied to two interrelated and murky sexual business relationships: prostitute-pimp relationships and prostitute-client relationships. A pimp is defined as “a criminal who is associated with, usually exerts control over, and lives off the earnings of one or more prostitutes.”5 National Network to End Domestic Violence, Forced Prostitution, WomensLaw.org, https://www.womenslaw.org/about-abuse/forms-abuse/sexual-abuse-and-exploitation/forced-prostitution/basic-info-and-0. Often, pimps retain sole control over transactions between a prostitute and a client, leaving the prostitute vulnerable to abuses by both the pimp and the client. A client, otherwise known as a john, retains the services of a prostitute for a sum of money. Under these circumstances, prostitutes endure coercion and threats, intimidation, emotional abuse, isolation, denying, sexual abuse, physical abuse, use of male privilege, and economic abuse all at the hands of both a pimp and a john.6Hana Cody, Domestic Violence and Human Trafficking, UNICEF USA (Nov. 15, 2017) https://www.unicefusa.org/stories/domestic-violence-and-human-trafficking/33601.
I. Domestic Abusers as Pimps & Vice Versa
Domestic violence abuse dynamics in sex work may inevitably take form in both romantic relationships between pimps and prostitutes and fundamental business relationships between pimps and prostitutes.
A. From Domestic Abusers to Pimps
In abusive heterosexual romantic relationships, women can be vulnerable to coercion in performing criminal acts. An abusive romantic partner may even manipulate his victim into engaging in illegal sex work by leading her to believe that her participation will result in the reward of the cessation of physical abuse or will earn her his respect. This dynamic of coercion to satisfy an abuser suggests that he is superior, and that his victim must either prove her worth or succumb to his demands in order to protect herself physically. To be perceived in a favorable light by her abuser, or perceived by him as an equal, a victim might be coerced into engaging in criminal activity to her detriment.7Schneider, supra note 3, at 512.
In turn, a victim might later face shaming and lowered self-esteem at the hands of her abuser for engaging in the demeaning and societally unaccepted acts which he coerced her to perform. A romantic relationship and the romantic inclinations of love and respect between partners can become perverted into a gendered mechanism for abusers to coerce a victim into engaging in sex work, exacerbating the physical power dynamics between abusive men and victimized women.
Many domestic violence victims ultimately engage in sex work, and in turn endure horrific abuse, as a means to obtain independence and agency from existing abusive relationships.8 Id. at 513. In many instances, women are unable to financially support themselves apart from their abusers. This may be due to an abuser prohibiting his partner from working and earning her own money, an abuser retaining sole control over his victim’s earnings, or an abuser prohibiting education and development of skills for a victim to able to eventually work, thus perpetuating her financial dependence. Therefore, many partake in criminal activity, including sex work, in order to gain enough financial independence to leave an abuser. This complicates the cycles of abuse and control; in attempt to leave an abuser, a woman might allow another abuser to claim ownership and control over her sexuality, leaving her further vulnerable to sexual abuse and violence. This means of seeking independence leaves a victim susceptible to abuse not only by a client, but also by a scouting pimp.
B. Pimps as Abusive Business Partners
The dynamic of domestic violence is often present between a pimp and a prostitute, even if they are not intimate partners. The same mechanisms that a domestic violence abuser uses to control his partner and instill power dynamics may also be used by a pimp in order to subjugate a prostitute for business purposes. As many abusers pursue women whom they deem to be more susceptible to manipulation and abuse, pimps also actively recruit such women.9Asian Pacific Institute on Gender-Based Violence, Intersections of Human Trafficking, Domestic Violence, and Sexual Assault (2016), https://s3.amazonaws.com/gbv-wp-uploads/wp-content/uploads/2019/02/13011536/Trafficking-DV-SA-Intersections-2016-formatted2019.pdf.Traffickers prey on women who have suffered abuse previously, who have been isolated, and who are in dire financial need, such as runaways or victims of prior domestic violence.10Morgan Smith, Edgar Walters & Neena Satija, She was a Sex-Trafficking Victim, but Texas Law Labeled her a Pimp, Tex. Tribune (Feb. 16, 2017) https://www.texastribune.org/2017/02/16/she-was-sex-trafficking-victim-texas-law-labeled-her-pimp/. These women, often experiencing lowered self-esteem as well as financial and shelter instability, tend to be easier targets for abusers to pursue due to their desperation. In contrast, women with reliable support systems and affirmation in other aspects of their lives tend to have more resources for independence, might be more informed in discerning abusive behavior, and are thus more difficult for an abuser to manipulate. Similar to romantic abusers, pimps determine which women might be easier to target and coerce due to their life circumstances and prior traumas. In some instances, a pimp might posture himself as a father figure for a young woman who might have run away from home, or who has had complicated parental figures, in order to lure her into the life of sex trafficking.11 Id. Victims’ familiarity with the power dynamics utilized in sex work, as they are similarly used in abusive familial and romantic relationships, might lead susceptible women to fall into recurrent cycles of abuse.
Additionally, pimps coerce sex workers to remain involved by providing them with physical protection against other potential abusers, such as abusive johns or other pimps. However, abuse suffered at the hands of a pimp may be worse than any harm that a sex worker might face apart from him; this “protection” from purported external dangers may be used as a fear tactic to dissuade sex workers from leaving.12 WomensLaw.org, supra note 5. Furthermore, if a sex worker attempts to work independently, a pimp might bar her from finding work apart from him by threat of physical violence against her. Both pimps and romantic abusers utilize financial abuse in order to prevent a victim from gaining independence by earning a living, and thus exercise control over victims’ agency through livelihood. Just as abusers may tell their victims that they could never find another romantic partner, pimps may also tell sex workers that they will not be able to find other employment or sources of financial support, regardless of whether this is true.
II. Johns as Abusers
Domestic violence dynamics also take form in sex work through relationships between prostitutes and male clients, otherwise known as johns. Between a prostitute and a john, the relationship blurs the lines of business and romance; a man pays money in exchange for a prostitute to engage in sex acts with him. On its surface, whether the sex worker is acting voluntarily or under coercion, this dynamic between a prostitute and a john is a permutation of financial abuse. The payment of money to temporarily own the body of a prostitute creates a dynamic of dominance and control over a sex worker. This dynamic is especially problematic when johns are purchasing women who are prostituted by pimps, as these women lack the agency in determining both to whom and in which ways she sells herself. Even among voluntary and/or independent sex workers, though, women are forced to place a monetary value upon themselves for the john to pay in exchange for this control over how her body is used. Abuse by a john might also be presented as an assault or rape of a prostitute, or refusal to pay for her services; as discussed later in this section, johns are nonetheless held less criminally culpable than prostitutes. Sex work can be a mechanism for agency among some women, but, within the immediate john-prostitute transaction, any semblance of a woman’s agency over her body and actions is lost.
A. Financial Abuse and Other Power Dynamics
The relationship between a john and a sex worker can further be characterized as a fetishization of the power dynamics that we see in abusive romantic relationships. Because a john pays a prostitute for sex, he then essentially owns her body for a period of time and is able to exert control over her with the coercion of money. Even for women who independently choose to engage in sex work, a sense of financial desperation might leave them vulnerable to engaging in demeaning sex acts or acts that they (and other women) otherwise would not consent to. A john is typically aware of a prostitute’s financial desperation, and he might capitalize on this by offering exceptionally high payments for acts that a prostitute explicitly does not want to engage in. He might further assert that she would not be able to make this amount of money from other clients, and that she should therefore allow him to do with her what he wants.
Sex trafficking victims who are forced into prostitution by a pimp, on the other hand, are not only owned by their pimps, but are also owned temporarily by their johns, with no leverage to consent to acts. In this instance, a woman is unable to escape or defend herself because both pimp and john are exerting physical and financial control over her sexuality. If she tries to leave, she faces two sources of danger: she may be attacked by her pimp or attacked by her john. A john, in this instance, might find arousal in a woman’s helplessness and loss of agency over her own sexuality, as she is unable to leave due to both physical barriers and financial need. This type of activity by abusive partners, johns, and pimps is indicative of a broader patriarchal issue where men seek to establish virility by exerting dominance and control over a woman in her sexual capacity. The takeover of a woman’s sexual agency is not only used as a symbol of masculinity and romantic dominance, where an abusive partner is obsessively possessive of a female partner, but also is a pillar of rape culture, where a man derives pleasure from depriving a woman of any physical agency.
B. Criminalization of Prostitution and Criminalization of Solicitation
The current criminal justice system seeks to punish prostitutes more than it seeks to punish the johns who hire prostitutes. In sex trafficking-related arrests per year, 70 percent of arrests are of female prostitutes and madams, 20 percent are of male prostitutes and pimps, and only 10 percent of these arrests are of johns.13 Prostitution in the United States, HG.org Legal Resources, https://www.hg.org/legal-articles/prostitution-in-the-united-states-30997. This asymmetry, particularly shown in the lower number of johns arrested, is not reflective of the true ratio of prostitutes to johns that exist: it would hardly be a sustainable industry if there were nine sex workers and pimps for every one john. Rather, this is reflective of society’s pursuit to disproportionately punish promiscuous women. Finding women sex workers more criminally culpable than their male co-conspirators gives way for society to control female sexuality. On some occasions, women sex workers are further vilified as pimps when they are forced to interact with or teach other (especially underage) prostitutes about sex work. In these instances, women are punished for their apparent agency in a sex work transaction, even if they are acting under the coercion of an overseeing pimp.14Smith, Walters & Satjia, supra note 10. The criminal justice system fails to equitably punish the johns who take part in coercing these women by means of physical, sexual and financial abuse; there can be no transaction, and no prostitute without a john seeking these services, yet johns remain relatively unpunished for solicitation.
To be found guilty of solicitation, it must be shown that one has requested that someone else engage in criminal activity, and that there was intent to engage in the activity with that person.15Model Penal Code § 5.02 (Am. L. Inst. 1984). Thus, in order to escape a solicitation charge, a john might argue that he showed no intent to compensate a prostitute, lacking intent to engage in the criminal conduct.16Defenses and Legal Elements to Modern Solicitation, FindLaw, https://criminal.findlaw.com/criminal-charges/solicitation.html. On the other hand, a prostitute is incriminated the moment she offers sex in return for money, and takes “some action to further that agreement”, like entering into a john’s vehicle, whether or not sexual acts are done.17Federal and State Charges for Prostitution, FindLaw, https://criminal.findlaw.com/criminal-charges/prostitution.html. A prostitute’s incrimination can therefore occur sooner in the transaction than a john showing actual intent to pay for such sex acts (by going to an ATM, handing over money, etc.). It is much easier and more cost effective for law enforcement to arrest and charge a prostitute on the most obvious frontlines of the transaction, than it would be to pursue an equally culpable john.18HG.org Legal Resources, supra note 13. The nature of the criminalization of sex work exists such that sex workers bear the brunt of incrimination, while johns face an easier evasion of potential solicitation charges.
III. The Perfect Battered Woman
The targeting of women who engage in sex work as criminal defendants, rather than victims in need of support, stems from the notion of a “perfect battered woman”. This is the idea that battered women are only in need of assistance, and are only deserving of support, if they are weak, demure, entirely helpless to their circumstances, and entirely innocent of any crime—otherwise, they are not perceived as victims.19Schneider, supra note 3, at 490-492. Women who appear to have some level of agency, whether actual or presumed, are thus deemed unworthy of access to resources as victims, especially if they have engaged in criminal activity. For this reason, although similar abuses are suffered by both sex workers and victims of domestic violence, we more often see sex workers as defendants without the necessary resources to recover from any abuse they might have encountered.
A. Notion and Cycles of Abuse
Many survivors of domestic violence who do not fit the mold of society’s ideal victim are deprived of adequate resources to overcome abuse. The penalization of women, including survivors of domestic violence, who commit criminal acts further contributes to their neglect. The lack of resources for abused women who are criminal defendants perpetuates reliance on criminal activity, and the continuation of abuse. For example, a prostitute, without financial support and in fear of criminal punishment, might rely more heavily on a male abuser for protection against both the criminal justice system and potentially malicious johns. Women who engage in criminal activity in order to survive—either within or outside of an abusive relationship—are further propelled into cycles of abuse when they are deemed criminals worthy of prosecution instead of resources to escape the cycles of abuse.
B. Trafficking Victims
The stated purpose of the U.S. Trafficking Victims Protection Act of 2000 is to protect women and children who are victims of a “contemporary manifestation of slavery,” through forced labor.20Trafficking Victims Protection Act of 2000, 22 U.S.C. § 7101(a). Initiatives for violence against women are targeted towards these victims, yet women who commit crimes tend to be excluded from this category due to difficulty in showing the requisite “slavery”. Prostitutes who exhibit some level of agency in their criminal activity, and are not ostensibly held captive as slaves, are deprived of the support given to these identified victims.
Regardless of whether they have actual agency over their activity, prostitutes are often forced to display enthusiasm and autonomy when engaging in sex work. The posture of hyper-sexuality and promiscuity is a necessity for sex workers, who must exhibit assertiveness in order to find and please their client, whether working autonomously to support themselves or under duress. A prosecutor, in pursuing criminal charges against a prostitute who has individually shown willingness to perform sex acts in exchange for money, has the advantage to rationalize her activity as the result of autonomous decision-making, rather than forced labor.21FindLaw, supra note 17. Furthermore, a prostitute trafficking herself under coercion by an abuser might assert, in order to protect the abuser, that her actions were autonomous. As shown by the stated purpose of the U.S. Trafficking Victims Protection Act of 2000, this autonomy is not the preferred, palatable representation of a victim who is in need of help.2222 U.S.C. § 7101(a). Rather, these women are often deemed undesirables and criminals who have made independent, adverse decisions that harm both themselves and society as a whole.
C. Criminalization is Retaliation Against Women’s Sexual Autonomy
The lack of aid rendered to sex workers is due to a patriarchal resentment towards feminine promiscuity and women’s sexual liberation. The neglect of sex workers who are in need of assistance as victims, and the prevalence of abuse manifesting as sex trafficking, is a symbol of retaliation against the feminist movement.23Alison Phinney, Trafficking of Women and Children for Sexual Exploitation in the Americas, Pan Am. Health Org. 1-2, https://www.oas.org/en/cim/docs/Trafficking-Paper%5BEN%5D.pdf. Sexual liberation has enabled women to engage in sexuality beyond serving monogamous, heterosexual partnerships. In turn, however, it has resulted in a societal backlash by way of neglecting, and further endangering, women who suffer abuse in the course of sex work.24 Id. This endangerment can be further characterized as punishment of sexually liberated women, as they do not fit the misogynistic expectations of women to be demure, dependent and subservient to a sole male partner. Whether coerced or forced into sex trafficking, or voluntarily involved in such work, women who are sex workers are perceived as acting with heightened sexual agency, and as hyper-sexualized beings. Women who appear to be sexually liberated are labeled as deserving of that abuse, and further undeserving of aid in escaping the abuse.
Beyond contributing legally and materially to a lack of protection for sex trafficking victims, the concepts of victim blaming and an ideal “perfect battered woman” both evince deeply misogynistic and harmful patriarchal values. Both of these concepts purport to focus on the level of agency a woman has exhibited, but they ignore the level of abuse she has suffered. Only women lacking society’s narrowed view of autonomy are prioritized as victims. However, the agency of “imperfect” battered women is merely an illusion, because these women have not been able to fully engage with their sexual instrumentality in the ways that men have. The misogynistic structures in place subjugate and objectify women to such an extent that women are perceived to exist primarily for male consumption; this has naturally led to sexist, abusive social norms. Yet, when women yield to these male-dominated norms by objectifying themselves in desperate attempt to gain some leverage, society renders these women blameworthy for any abuse resulting from that objectification. Women therefore face a double-edged sword when grasping for even a portion of agency over their own sexuality, or some utility from misogynistic norms designed to primarily benefit men.
IV. Voluntary Sex Workers
Although many sex workers are victims of sex trafficking acting under force by an abuser, there are also women who engage in sex work by their own volition. This is an example of women exercising agency over their own sexuality by capitalizing on structures that were initially instilled into society for purposes of misogyny and subjugation of women. This agency might take form as modeling, pornography, exotic dancing, escorting, prostitution, and many other illustrations of women profiting from their highly coveted sexuality, which society has deemed so valuable. In instances where women are employing agency to voluntarily participate in prostitution, their work should be permitted by our criminal justice system. Women should be able to utilize the very system that has been designed to perpetuate misogynistic abuse, as a form of reparations for the vast harms that this system has inflicted against so many women.
Unfortunately, however, the power dynamics supported by a patriarchal system are often such that even women acting autonomously tend to fall victim to cycles of abuse by pimps or johns and will often have no viable means of escape. For example, a woman voluntarily engaging in prostitution might be physically overpowered and forced into sex slavery by a pimp; alternatively, she might be physically overpowered by a john, leading to the belief that only a pimp can protect her against the dangers of sex work. All sex workers remain highly vulnerable to infliction of abuse and are often in some way victims of coercion.
Society should therefore analyze the issue under the assumption that voluntary sex workers are equally confronted with abuse and should provide adequate support systems and resources that do not exclude any sex workers. Furthermore, most women who engage in sex work do not do so in order to fulfill their life and career goals. Many begin sex work as a means to escape poverty, to evade other forms abuse, or are themselves victims of physical, sexual, and emotional abuse. Many women who have suffered abuse find liberation in engaging in sex work, as they can obtain more control over how their bodies and sexuality are utilized. It is thus sensible to provide resources to sex workers under the presumption that they are, have been, or have the potential to become victims of abuse, and are in need of support.
V. Resources and Rehabilitation for Sex Workers
It is generally accepted that victims of domestic violence, and “perfect battered women” in particular, are in need of many resources to escape abuse. Foremost, battered women are in need of effective counseling in order to combat impacted self-esteem, post-traumatic stress disorder, and other psychological traumas resulting from abuse.25Chic Dabby, Domestic Violence and Human Trafficking: Advocacy at the Intersections, U.S. Family and Youth Services Bureau (Oct. 31, 2019), https://www.acf.hhs.gov/fysb/news/domestic-violence-and-human-trafficking-advocacy-at-the-intersections. Moreover, battered women are often in dire need of medical attention for either recent or chronic harm caused by abusers. Survivors of abuse may additionally need drug rehabilitation, as many become addicted to narcotics due to self-medicating to treat injuries caused by physical battery; survivors may be forbidden from seeking professional medical help for fear of revealing the abuse. 26Schneider, supra note 3, at 511-512. Women who have been trapped in abusive relationships due to financial dependence, also need resources to gain financial independence; in order to leave, a survivor of abuse needs a means to both support herself and to replenish self-esteem as a contributor to society. Many survivors of abuse furthermore need shelters and/or relocation programs to thoroughly ensure both physical and financial security in distancing from the abuser, without fear of harm or retaliation.
Victims of sex trafficking are in need of the very same resources as victims of domestic violence in order to overcome the abuse and cycles of trauma which they have endured.27Id. Because women engaged in sex trafficking face the looming threat of criminal punishment, and cycles of abuse against sex workers tend to be perpetuated by that fear, there is a crucial need for resources beyond the penal system to escape cycles of abuse. These women need counseling to combat psychological harms inflicted not only by abusers, but also by the traumas endured in the general course of sex work. Additionally, because many prostitutes suffered abuse prior to becoming sex workers, counseling may be required to combat past traumas as well. They need resources in order to gain financial independence from pimps and johns, and as a means to obtain work that society deems socially productive so that they do not fall back into cycles of reliance on criminal activity. This might include education, or training in skills that might help them obtain a legitimate source of income. Victims of sex trafficking are also in need of shelters and relocation programs, as many are connected to pimps who might stalk or harm them as reprisal for escaping. In addition to medical attention for physical battery inflicted by pimps and johns, victims of sex trafficking are also in desperate need of reproductive health examination due to the nature of their work and the types of abuses to which they are more vulnerable. Some women who engage in sex work come from abusive backgrounds and have not had any access to adequate reproductive care and education.28Smith, Walters & Satjia, supra note 10.
Not only are there commonalities between the forms of abuse endured by domestic violence victims and forms of abuse endured by prostitutes, but one might argue that the abuse endured by prostitutes is doubled, as it takes form as both abuse by a pimp and abuse by a john. The abuse could therefore induce greater desperation for a victim of active sex trafficking and necessitates even more diversity of resources. Rather than obtain additional support systems and resources to combat and recover from abuse, survivors of sex trafficking who do not fit the “perfect battered woman” criteria tend to be instead subjected to the cyclical harms of the criminal justice system due to their status as sex workers; their claims of self-defense and coercion in their criminal activity tend to be unfairly disregarded.29 Schneider, supra note 3 at 491. More often, sex workers are seen as defendants who have harmed society and social values in some manner, rather than as women in need of assistance and support to escaping cycles of abuse; these same cycles of abuse have been perpetuated by the social values that sex workers are purported to threaten. These misogynistic values have contributed towards sexist and violent norms which objectify and subjugate women yet have existed throughout history.
Battered women, regardless of the ways in which their abuse came about, need the same support systems in order to escape battery and cycles of abuse. All survivors of abuse, to contribute productively to society, need these sustainable solutions which keep them safe, healthy, and able to live meaningful lives as they deem fit. Without these resources and solutions, battered women will continue to resort to the abusive relationships that they have endured, and victims of sex trafficking will remain unable to escape sex work due to neglect by society, and a lack of options to escape. These women need a means of social and physical mobilization and restoration from these harmful circumstances, rather than criminal punishment and abandonment by society as unreasonable and unprincipled women.30Schneider, supra note 3, at 513. In order to effectively combat the abuses that women engaging in sex work endure, society must perform a balancing act of eliminating these misogynistic values while also placing value upon the agency of women to engage in whatever work they wish to pursue.
VI. Proposal for Legalization of Sex Work
It is important to recognize that sex work, while the source of many harms against women in its present form, is an industry that will exist as long as humans are sexual beings. Therefore, it is practical to support the existence of sex work in a way that is safe for the women involved either voluntarily or under duress. In order to effectively provide support and resources for voluntary and involuntary sex workers, society must work towards decriminalization and de-stigmatization of all voluntary and autonomous sex work through legalization. This revision to our present criminal justice system would allow sex workers who are victims of abuse to come forward against abusers without the threat of counterattack by the penal system. Women engaging in sex work would be safer, and perhaps would have the agency to refuse engagement in sex work, if the resources would be available to escape cycles of abuse without fear of punishment for having engaged in criminal activity.
Some prosecutorial offices are taking measures to alter the traditional approach to criminalization of sex work by decreasing prosecution of prostitutes, in recognition of the overarching marginalization and vulnerability which sex workers face, yet are continuing to prosecute pimps and johns as harmful actors; this is a productive political step towards formal decriminalization and protection of sex workers.31Jonah E. Bromwich, Manhattan to Stop Prosecuting Prostitution, Part of Nationwide Shift, N.Y. Times (Apr. 21, 2021), https://www.nytimes.com/2021/04/21/nyregion/manhattan-to-stop-prosecuting-prostitution.html. However, if prostitution were legalized beyond decriminalization, women who autonomously engage in sex work would be enabled to safely exercise agency with their bodies, having control over their own femininity and sexuality, which have historically been exploited and abused. They may choose to traffic themselves without fear of criminalization or fear of abuse, as there will be resources available to both prevent and act against any harm.
If sex work is decriminalized or legalized, a more supportive replacement system should ensure that women are entitled to appropriate healthcare and resources for escaping perilous situations. For example, sex workers should be able to enroll in subsidized healthcare, including psychological care, to ensure that they can recuperate and escape the cycle of trauma.
Furthermore, if decriminalized, sex workers would be able to call for police or non-police emergency services should they be confronted with an abusive pimp or john. With allowing women the access to their own resources and the agency of maintaining their own safety, this diminishes the perceived necessity of a pimp, and prevents the cycle of abuse from beginning. A seemingly benign pimp no longer will have the ability to morph into an abuser, and an abusive pimp will face the risk of criminal prosecution for his abusive acts against sex workers.
If prostitution were legalized, a sex worker seeking protection, management, or general involvement by a male figure would be allowed the agency to do so; sex workers would be able to legally hire security, or a business manager to assist them. Furthermore, if legalized, local governments could derive benefit from sex work through taxation. These taxes could in turn be utilized to fund resources for sex workers and victims of domestic violence, and this taxation would further prevent financial abuse by johns due to regulation and oversight of prices for services.
This proposition formulates an ideal society in which men can benefit from sex workers’ services, while women can safely capitalize on the exploitation of their sexuality. It operates under the assumption that a patriarchal society is inevitable, and that, in order for women to combat misogyny, society must acknowledge and partake in it. However, a critic might argue that the criminalization of prostitution provides society with the correct stigmatization of the misogynistic and abusive exploitation of women. Since prostitution stems from harmful roots of chauvinism that objectify women, women obtaining agency in this realm is merely another form of patriarchy. Thus, the argument goes, we should work towards erasure of a patriarchal system rather than indulge in it by approving of sex work.
Contrarily, though, decriminalization of prostitution allows women to have some level of control in a world where patriarchal values have historically reigned. As long as social and gender norms are adhered to in the way that they were created, women will never benefit from these norms in the ways that men have been able to. Women, therefore, should be enabled to capitalize on their sexual objectification in some capacity, where men would otherwise be the sole beneficiaries. Prostitution has survived throughout human existence, as have the misogyny and patriarchal systems which support it. Therefore, we should allow women the agency to benefit from the power dynamic which so directly requires women’s submission; there is no patriarchy without the subjugation of women, just as there is no pimp or john without a prostitute. Women should benefit from a system that relies so heavily on their sexuality and objectification.
Although an imperfect solution, the propositions of decriminalization and legalization of all sex work seem to be the safest ways to combat the underlying issues of patriarchy and misogyny that harm women who face these circumstances. This would provide as much support as possible to women suffering from various forms of abuse, while society develops a better solution to the broader issues of harmful objectification of women. These gendered dynamics will not disappear immediately, but it is productive to consider ways of combating them effectively towards the end of elimination, with the primary goal of keeping women safe from abuse.
Asha McLachlan, J.D. Class of 2022, N.Y.U. School of Law.
Suggested Citation: Asha McLachlan, Sex Trafficking as Domestic Violence, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2021).
- 1For the purposes of this paper, I will focus specifically on the male/female binary in domestic violence and sex work, and how traditional gender norms affect these relationships and our societal responses to them. It is worth noting, though, that trans, nonbinary, and male sex workers face similar circumstances of violence and neglect. See Kaniya Walker, To Protect Black Trans Lives, Decriminalize Sex Work, ACLU: News & Commentary (Nov. 20, 2020) https://www.aclu.org/news/lgbtq-rights/to-protect-black-trans-lives-decriminalize-sex-work/; Kathleen Culliton, For Black Trans Americans, the Epidemic is Violence, Spectrum News NY (Aug. 5, 2020) https://www.ny1.com/nyc/all-boroughs/news/2020/08/02/for-black-trans-americans–the-epidemic-is-violence.
- 2Domestic Violence, U.S. Dep’t. of Justice Office of Violence Against Women , https://www.justice.gov/ovw/domestic-violence.
- 3Elizabeth Schneider et. al., Domestic Violence and the Law: Theory and Practice , 62 (3rd ed. 2012).
- 5National Network to End Domestic Violence, Forced Prostitution, WomensLaw.org, https://www.womenslaw.org/about-abuse/forms-abuse/sexual-abuse-and-exploitation/forced-prostitution/basic-info-and-0.
- 6Hana Cody, Domestic Violence and Human Trafficking, UNICEF USA (Nov. 15, 2017) https://www.unicefusa.org/stories/domestic-violence-and-human-trafficking/33601.
- 7Schneider, supra note 3, at 512.
- 8Id. at 513.
- 9Asian Pacific Institute on Gender-Based Violence, Intersections of Human Trafficking, Domestic Violence, and Sexual Assault (2016), https://s3.amazonaws.com/gbv-wp-uploads/wp-content/uploads/2019/02/13011536/Trafficking-DV-SA-Intersections-2016-formatted2019.pdf.
- 10Morgan Smith, Edgar Walters & Neena Satija, She was a Sex-Trafficking Victim, but Texas Law Labeled her a Pimp, Tex. Tribune (Feb. 16, 2017) https://www.texastribune.org/2017/02/16/she-was-sex-trafficking-victim-texas-law-labeled-her-pimp/.
- 12WomensLaw.org, supra note 5.
- 13Prostitution in the United States, HG.org Legal Resources, https://www.hg.org/legal-articles/prostitution-in-the-united-states-30997.
- 14Smith, Walters & Satjia, supra note 10.
- 15Model Penal Code § 5.02 (Am. L. Inst. 1984).
- 16Defenses and Legal Elements to Modern Solicitation, FindLaw, https://criminal.findlaw.com/criminal-charges/solicitation.html.
- 17Federal and State Charges for Prostitution, FindLaw, https://criminal.findlaw.com/criminal-charges/prostitution.html.
- 18HG.org Legal Resources, supra note 13.
- 19Schneider, supra note 3, at 490-492.
- 20Trafficking Victims Protection Act of 2000, 22 U.S.C. § 7101(a).
- 21FindLaw, supra note 17.
- 2222 U.S.C. § 7101(a).
- 23Alison Phinney, Trafficking of Women and Children for Sexual Exploitation in the Americas, Pan Am. Health Org. 1-2, https://www.oas.org/en/cim/docs/Trafficking-Paper%5BEN%5D.pdf.
- 25Chic Dabby, Domestic Violence and Human Trafficking: Advocacy at the Intersections, U.S. Family and Youth Services Bureau (Oct. 31, 2019), https://www.acf.hhs.gov/fysb/news/domestic-violence-and-human-trafficking-advocacy-at-the-intersections.
- 26Schneider, supra note 3, at 511-512.
- 28Smith, Walters & Satjia, supra note 10.
- 29Schneider, supra note 3 at 491.
- 30Schneider, supra note 3, at 513.
- 31Jonah E. Bromwich, Manhattan to Stop Prosecuting Prostitution, Part of Nationwide Shift, N.Y. Times (Apr. 21, 2021), https://www.nytimes.com/2021/04/21/nyregion/manhattan-to-stop-prosecuting-prostitution.html.