Sex trafficking and criminalization: in defense of feminist abolitionism.

• Author: Dempsey, Michelle Madden

INTRODUCTION I. WHAT IS FEMINIST ABOLITIONISM? A. On Patriarchy and Prostitution B. Abolitionism's Strange Bedfellows II. ON PROSTITUTION: SOME ASSUMPTIONS AND CONCESSIONS III. CRIMINALIZING THE PURCHASE OF SEX A. The Argument from Complicity B. The Argument from Endangerment IV. DEFENDING FEMINIST ABOLITIONISM A. Does Feminist Abolitionism Support Policing Morality? B. Is a Blanket Prohibition on the Purchase of Sex Unduly Broad? C. Will Criminalizing the Purchase of Sex Actually Reduce Harm to Prostituted People? D. Is Criminalization Antithetical to Feminism? CONCLUSION INTRODUCTION

In debates regarding what sort of policy and legal responses are most appropriate in addressing the problem of sex trafficking, it is possible to identify two sides: abolitionists and nonabolitionists. Abolitionists seek to end both sex trafficking and prostitution generally, while nonabolitionists seek to end sex trafficking while allowing prostitution to continue. (1) The motivational grounding of the abolitionist movement is diverse: some people support abolitionist reforms based on conservative or reactionary political commitments, while others support abolitionism from a feminist point of view. An approach to sex trafficking that seeks to abolish both sex trafficking and prostitution generally, as part of a larger set of feminist commitments and goals, is typically referred to (and will be referred to below) as "feminist abolitionism."

Broadly speaking, feminist abolitionism tends to favor developing policy and legal responses to sex trafficking that implement what has been coined the "Swedish model." (2) This model includes social-welfare policies that assist people in exiting and avoiding prostitution; public education campaigns to raise awareness of the harms experienced by prostituted peoples and to change social norms that support sex trafficking and prostitution; and criminal law reforms that penalize trafficking, pimping, and the purchase of sex, while decriminalizing the sale of sex. (4)

In general, feminist abolitionism's recommendations with respect to social-welfare provision, education, and criminalizing both trafficking and pimping have been largely uncontroversial. Similarly, the call to decriminalize the sale of sex is relatively uncontroversial, at least among feminist reformers. (5) However, the abolitionist recommendation to criminalize the purchase of sex has been a source of considerable controversy. (6)

Some think that the feminist-abolitionist call to criminalize the purchase of sex faces insurmountable objections. Typically these objections are based on the purported existence of prostituted people whose experiences do not fit the feminist abolitionists' conceptualization of commercial sex as violence against women. (7) If selling sex is a genuinely consensual and valuable experience for some people, the argument goes, then feminist abolitionism's arguments against buying sex must fail. (8) This Article considers what concessions, if any, feminist abolitionism should make in response to this objection and articulates two justifications for criminalizing the purchase of sex that are immune to the objection.

My argument proceeds in four steps. First, I provide an overview of feminist abolitionism, setting out its explanation of why sex trafficking and prostitution are problematic, and distinguishing feminist abolitionism from conservative and reactionary forms of abolitionism. Second, I examine two assumptions that underpin feminist abolitionism's account of sex trafficking and prostitution and concede that selling sex can be a genuinely consensual and valuable choice for some people. Third, I outline two arguments that, despite this concession, continue to offer robust support for criminalizing the purchase of sex. Finally, I examine arguments against criminalizing the purchase of sex and consider what, if any, qualifications are required in defending feminist abolitionism.

1. WHAT IS FEMINIST ABOLITIONISM?

   Since I am offering an argument in defense of feminist abolitionism, it seems fitting to start by providing a general account of what I understand this label to mean. Feminist abolitionism, as I understand it, is action taken in an effort to end sex trafficking that is motivated by a belief that such trafficking harms women in ways tending to sustain and perpetuate patriarchal structural inequalities. (9)

   It is possible, albeit perhaps less common, to argue in defense of abolitionist policies in response to sex trafficking from a Millian liberal perspective, by which I mean a political perspective concerned with limiting the use of the criminal law to targeting conduct that causes harm to others. (10) Indeed, in many respects, the two theories of criminalization I develop below in defense of feminist abolitionism are fully consistent with a traditional Millian liberal view regarding the proper scope of the criminal law, for both arguments are grounded in the premise that buying sex causes harms to others--specifically, to prostituted people. The arguments I shall offer are not, therefore, grounded in a concern to prevent mere offense or nuisance, (11) self-inflicted harms, (12) or harmless wrongdoing. (13)

   This Article defends a particularly feminist abolitionism by its recognition of two further points regarding the harm often experienced by prostituted people. The first point is more thinly feminist, while the second point adds a more significant feminist character to my arguments. First, my arguments emphasize the fact that very often prostituted people are women or girls and, further (and here is where the feminist element comes in), that women and girls are human beings. In other words, the harm done to prostituted women and girls is "harm to others" in the Millian sense: it is harm to other human beings. (14) Again, this is a rather thin sense of what it means for an otherwise liberal argument to be feminist, but given the long history of women's absence from purportedly liberal theory and political practice, it bears noting. (15)

   Second, my arguments are more robustly feminist insofar as they take into account the patriarchal character of the harms at issue. Specifically, I recognize that harms often suffered by prostituted people are the kind that tend to sustain and perpetuate patriarchal structural inequality, that patriarchal structural inequality is wrongful (this is where the feminist element comes in (16)), and that the harms' tendency to sustain and perpetuate structural inequality informs their nature and quality. In other words, my argument is feminist insofar as it contends that a proper account of the nature of the harms in prostitution must acknowledge the relationship between these harms and patriarchal structural inequality.

   1. On Patriarchy and Prostitution

      In previous work, and in what follows below, I use the label patriarchy to refer to a wrongful structural inequality that bears explanatory force in understanding women's subordinated social status. (17) The wrongness of patriarchal structural inequality, as I understand the concept, can be analyzed in terms of its tendency to sustain and perpetuate sex discrimination, sexism, and misogyny. (18) For lack of space, I will not fully revisit my tripartite analysis of patriarchal structural inequality here, but will instead illustrate the relationship between the harms often suffered by prostituted people and these aspects of patriarchy.

      At a high level of generality, all three aspects of patriarchal structural inequality involve failures to provide women with an adequate range of valuable options for pursuing lives conducive to human flourishing. (19) Sex discrimination, as I use the term here, involves a failure to provide such valuable options based on a misconception of a person's attributes, needs, or interests, where the failure is based partially on the person's sex. (20) Such failures are particularly common in societies that embrace "'widespread promulgation of a false or irrelevant conception' of women's attributes, needs, or interests." (21) The link between sex discrimination and prostitution can be observed, for example, in situations where women and girls of a particular social caste, clan, class, race, ethnicity--or those who have suffered a form of abuse, typically sexual--are thought to be suited to a life of prostitution, based on the conditions of their birth or subsequent abuse. (22)

      Often, however, the failure to provide women with an adequate range of valuable options for pursuing lives conducive to human flourishing is based not on any misconception but rather on simply a failure to value women and girls as human beings. I refer to such failures under the heading of sexism, as distinct from sex discrimination. Sexism consists in failures to provide women and girls with that to which they are entitled--e.g., food, shelter, medical attention, care, education, economic resources, and other necessities--based simply on a failure to value women and girls as human beings. (23) While conditions of sexism create a context that is conducive to the proliferation of harms to prostituted people, there is also a feedback loop between sexism and these harms, for the harms often suffered by prostituted people have a tendency to sustain and perpetuate sexist social conditions (i.e., conditions in which women and girls are not valued as human beings). Put simply, a world in which women are not valued as human beings tends to be a world in which harms to prostituted people will be common; a world in which such harms are common tends to be one in which women are not valued as human beings. Understood accordingly, part of the wrongfulness of the harms suffered by prostituted people is the tendency of these harms to sustain and perpetuate sexism.

      Finally, no accounting of the harms suffered by prostituted people would be complete without regard to the third aspect of patriarchal structural inequality: misogyny...