Men who own women: a Thirteenth Amendment critique of forced prostitution.

• Author: Katyal, Neal Kumar

"He had a six-foot bullwhip and he hit me in the head with it.... We got home and he beat me with that bullwhip and told me to go to sleep."(1) These are not the words of an antebellum slave but the cries of a prostitute, describing not her slave owner but her pimp. How many women live through this type of abuse every day remains unknown.

Like slaves, prostitutes are raped, beaten, and tortured at the whim of the men who control them. It is no coincidence that at the start of the twentieth century the U.S. government referred to coerced prostitution as "white slavery."(2) Nor was it a clerical error which led the United Nations to address prostitution in its Working Group on Slavery.(3) Indeed, international antislavery organizations such as the International Abolitionist Federation campaign against forced prostitution.(4) Similarly, it was no surprise that upon his visit to Dakar, a city once famous for exporting slaves, Pope John Paul II called for people to "oppose new, often insidious forms of slavery, like organized prostitution."(5)

This Note argues that forced prostitution is slavery for purposes of the Thirteenth Amendment's prohibition against slavery and involuntary servitude;(6) therefore government officials who fail to enforce laws against pimps are acting unconstitutionally.(7) Part I defines and describes forced prostitution. Part 11 shows that abolitionists condemned masters' exploitation of female slaves' sexuality as one of the evils of slavery and equated it with prostitution. Part Ill surveys Thirteenth Amendment jurisprudence and demonstrates that forced prostitution violates the Amendment. Part IV explores potential remedies against state officials for failing to protect prostitutes' constitutional rights.

While the idea that forced prostitution is slavery may not be immediately apparent to some readers, the legal system takes for granted the analogy between specific performance in personal service contracts and slavery. But should Thirteenth Amendment protection be reserved for James Taylor as he attempts to get out of a contract to sing,(8) or should it be used to free people who are literally treated as chattels?

As we come closer to an understanding of what forced prostitution means for the women involved, the similarities between forced prostitution and slavery appear striking: Both pimps and antebellum slave masters have and had economic investments in women's sexual functions. Like the slaves of old, prostitutes today are forced to act against their will and sleep with their masters and other men. Like masters of old, pimps are organized, albeit loosely, and return fugitive women to each other.9 In short, forced prostitution, like slavery, implicates all of the core concerns of the Thirteenth Amendment: physical abuse, lack of free will, forced labor, and social stratification.

1. THE PROBLEM DEFINED

   Some might argue that all prostitution is slavery and that both consensual and forced prostitution violate the Thirteenth Amendment; I make a more limited claim. Because the Thirteenth Amendment prohibits only physical or legal coercion, it reaches only forced prostitution.

   Forced prostitution occurs whenever a woman is prostituted against her will, that is, physically compelled to sell herself.(10) Forced prostitution is fairly common. One source claims that pimps exercise so much control over prostitution that "it is nearly impossible for a woman to ply her trade independently on the street for fear of trespassing on some pimp's territory."(11) Pimps often "season" a new recruit with physical and verbal abuse.(12) A woman who does not make her quota for the night risks getting hit.(13) Such beatings may break a woman's independence and prevent her from escaping.(14) Meg Baldwin summed up prostitution in terms reminiscent of slavery: "To be a ~prostitute' is to be rapable, beatable, killable."(15)

   Pimps often force women into prostitution.(16) Some ply women with drugs, then take advantage of their addiction.(17) Others kidnap girls and women(18) or recruit them through fake employment agencies.(19) Some pimps literally sell women to other pimps; according to one source, the 1977 going price for blue-eyed blondes in New York City was $1000.(20) Similarly, some pimps today will permit a woman to "buy back" her freedom by paying him money.(21)

   The average age of beginning prostitutes is fourteen years.(22) Of an estimated 1.5 million children who flee their homes each year or are homeless, approximately fifty percent engage in prostitution.(23) "[P]imps do not go after young girls (12-17) because of any demand by customers for young girls. Rather, [it is] because they are naive and easy to control.... Once a girl is acquired, she is that pimp's ~property.'"(24) Runaways face unsavory choices, for "pimps, thieves, muggers, drug dealers, rapists, pornographers, and tricks [are] ready to pounce" on runaways and these children are "subjected to the terrifying ritual of 'choose or lose,' in which the pimps give [them] a choice of picking one of them as [their] master, or being beaten or killed if [they] refuse."(25) Indeed, some parents sell their children to pimps or force their own children into prostitution.(26)

   In 1982, the most recent year for which statistics are available, there were between 200,000 and 900,000 child prostitutes in the United States. One source has calculated that, if one accepts the lower figure, child prostitution is at least a $2 billion annual business.(27) In 1988, $40 million per day was spent on prostitution.28 It has been estimated that at least 1.5 million visits to prostitutes occur in the United States every week.(29)

   State laws do criminalize forced prostitution, but their enforcement is sadly ineffectual at best.(30) As one observer put it: "[T]he violence, abuse, and degradation of [prostitutes]--remain invisible to and low priorities for the nation's law enforcement agencies."(31) Instead of trying to combat the root Of the problem--pimps--law enforcement's typical response is to arrest its victims--prostitutes. This practice only strengthens a woman's dependence on her pimp, forcing her more into his debt.(32) police rarely listen to prostitutes who claim they have been abused by their pimps,(33) and at times police assault or sexually coerce prostitutes.(34) As one prostitute put it, "I can't tell you the countless times I've heard police say that a prostitute can't be raped. . . . After a while you stop telling the police."(35) Even if prostitutes were immune from arrest, most are too scared to turn in their pimps,(36) for federal laws are rarely enforced.(37) The solution is not more law, but enforcement of current laws.

   The Thirteenth Amendment offers hope: forced prostitution was one of the central concerns of abolitionists, a concern eventually embodied in the Thirteenth Amendment. Forced prostitution is not merely analogous to slavery, it is slavery. Moreover, because the Amendment prohibits state inaction, states that do not take steps to eliminate slavery will run afoul of it. Therefore, states will be acting unconstitutionally unless they act to eliminate forced prostitution.

2. OUR ABOLITIONIST ROOTS

   The economics of slavery reached beyond the fields to encompass the reproductive labor of women. Yet until recently, the female slave has escaped scholarly attention.(38) As one scholar put it, "[t]he sexual dynamics of slavery continue to lie just beneath the surface of southern history as a tightly coiled tangle of issues we must unravel."(39) It was not uncommon for observers at the time to define slavery as prostitution.(40) Rev. Charles Olcott attacked the "customary ravishment and prostitution of colored women."(41) Frederick Douglass, following Olcott's lead, said that "~every slaveholder is the legalized keeper of a house of ill-fame.'"(42) Consider also white Southerner Mary Chesnut's words: "Under slavery, we live surrounded by prostitutes .... [T]he mulattoes one sees in every family partly resemble the white children. Any lady is ready to tell you who is the father of all the mulatto children in everybody's household but her own."(43)

   These authors sought to capture the harms of slavery by calling female slaves prostitutes .44 Through this comparison, they summed up the black female experience, from the day of purchase to the night her master came to "visit." Writings of the time reveal three different situations in which female slaves were often sexually exploited. First, when she was being sold, potential purchasers could fondle and harass her. Second, her master could molest or rape her. Third, she could be forced to have sexual intercourse with family or friends of the master, or with other slaves.

   1. Slave Markets

      Sex and reproduction were at issue every time a female slave was sold on the market.(45) Advertisements for slaves(46) and the nudges and winks of slave traders 47 highlighted the sexual connotations of slavery. Abolitionists used the lurid detail of slave auctions(48) to compare slavery to concubinage and prostitution.(49) In the ordinary slave markets of every Southern state, men bought sex. Moreover, there was one Southern institution that made the practice even more blatant: the fancy-girl markets, where the most beautiful slaves were sold to rich white men.

      These fancy-girl markets were the most overt connection between prostitution and slavery. "~If the prospective bidders had any doubts, they would strip them, especially the nice looking quadroon girls.'"(50) One of the major slave-trading firms opened a boarding-house for "'gentlemen who wish to stay in the house with their slaves.'"(51) While the majority of the fancy-girl trading took place in New Orleans, it occurred on a lesser scale throughout the country.(52) In addition to such markets, women were sold on the street: "[T]he girls were required to stand on an open porch fronting the street so as to attract the attention of possible...