For further explication of these problems, differing theoretical approaches to them, and also of the differing forms prostitution takes, see 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 (1999); Susan E. Thompson, Note, Prostitution--A Choice Ignored, 21 Women's Rts. L. Rep. 217, 240 (2000); and Gregg Aronson, Note, Seeking a Consolidated Feminst Voice for Prostitution in the US, 3 Rutgers J. L. & Urb. Pol'y 357 (2006).
In response to these problems, tiny but determined sex workers' rights organizations have formed to conduct education and advocacy, and there are organizations in a handful of cities, like HIPS in DC, providing targeted social services to sex workers. But as far as I am aware, Urban Justice Institute's Sex Workers Project in New York is the organization providing targeted legal services to sex workers. This is a shame, for it is clear that such services are badly needed.
What would a sex workers' rights legal agenda look like?
The agenda I imagine would largely complement the harm-reduction work of social service organizations. This work -- meeting the material needs of vulnerable individuals -- would, I think, be consistent with agnosticism or even limited support for the criminalization of sex work. There is in any event little likelihood that impact-oriented litigation could achieve substantial changes in the criminal laws. (For a more optimistic view, however, see Belkys Garcia, Reimagining the Right to Commercial Sex: The Impact of Lawrence v. Texas on Prostitution Statutes, 9 N.Y. City L.Rev. 161 (2005).) Nevertheless, in my view a sex work legal agenda would be incomplete without a law reform component. This includes advocating for legislative change, but it also should include some litigation components. There are other laws that make life hard for sex workers besides the prostitution statutes. Prominent among these are recent municipal laws, called "exclusionary zones," or "no-prostitution zones," which impose a kind of limited banishment for those previously convicted of prostitution. Laws like this -- and whatever other means local politicians may dream up to run even former sex workers out of town -- can and should be challenged. For details, see Gordon Hill, The Use of Pre-Existing Exclusionary Zones as Probationary Conditions for Prostitution Offenses: A Call for the Sincere Application of Heightened Scrutiny, 28 SEATTLE U. L. REV. 173, 185 (2004).
For the most part, constitutional challenges to restrictions on legal sex work (particularly exotic dancing and pornography) are already pursued by the private bar, thanks to the vested interest of adult business owners. Still, draconian regulations of the sort proposed last year in Ohio can hurt workers even more than owners, and thus there may be place in my imaginary agenda for this work as well.
Legal concerns specific to sex work:
- Anti-violence. This is perhaps the most important agenda item, and it is a difficult one. Violence against sex workers is epidemic, and there may be only so much litigation can accomplish so long as illegal and quasi-legal sex workers have such strong disincentives to seek police protection. Nevertheless, I see a few possibilities. One, of course, is advocacy for more consistent police protection from, and prosecution of, violence against sex workers. Another obvious one is civil suits against individual officers as well as police departments and municipalities when officers themselves are responsible for assault or sexual violence. Additionally, I wonder whether suits along the lines of Brandon v. Richardson (in which Brandon Teena's mother successfully sued the county and sherriff for failing to prevent his murder) might have a place here. Though cases in which the requisite showings of knowledge and indifference can be made may be rare, they will arise, and could provide effective pressure to take sex workers' safety seriously.
- Criminal defense. The adequacy is public or court-appointed defenders is, I supose beyond the scope of this post. But sex workers need more here than defense against prostitution charges. They also need competent defenses against bogus or trumped-up charges, against attempts to twist catch-all offenses to criminalize sex workers' very existence, and against similar misuses of the law against legal sex workers (be they exotic dancers or dominatrices). Where in a given jurisdiction these practices become regular, test cases should be selected to set precedents against them.
- Legal advice. One trend that showed up in the Urban Justice reports was the need for legal advice. It's perhaps a no-brainer that sex workers, legal, illegal or quasi-legal, need solid advice about what is and isn't illegal in their area. They also need advice about their rights when dealing with police and when taken into custody. Furthermore, they need advice about the collateral consequences of prosecution for their immigration status, parental rights, welfare benefits, et cetera.
- Employment. Legal sex workers who are not freelance -- this mainly means exotic dancers -- need help with issues of mostly garden-variety labor and employment law: wages, hours, benefits and working conditions. While some state government agencies are taking an interest here, it is unclear to me whether this area is lucrative enough to attract adequate service from the private bar. This student paper illustrates these issues as they arise in Oregon. For more, see Margot Rutman, Exotic Dancers' Employment Law Regulations, 8 Temp. Pol. & Civ.Rts. L.Rev. 515 (1999).
Sex workers are also in need of general legal services from practitioners who understand the special problems that may arise for them in these areas. Immigration, domestic violence and family law loom large here, but sex workers may need help in all aspects of what's come to be called poverty law.Who would fill the void?
As I have noted, at present an agenda such as this has no champion. But it is not hard to imagine how, and by whom, it could be put into action.
- Established social justice organizations could get involved. Some of these issues would fit will within the existing mandates of civil rights groups like the ACLU, to wit, impact litigation to protect constitutional rights. Much of this work could also be recommended to groups focused on the rights of particular constitutuencies who are disparately affected by these problems: racial minorities, immigrants, and transgender people. While there would inevitably be some protest from members of those communities claiming that these are "not their issues," a principled case can be made that they are.
- Legal services organizations can build their competence to serve sex workers. Much of the work that needs doing is within the basic competence of LSOs, but they will probably need to do more, namely, getting educated about who sex workers are and the problems they face. Needless to say, anti-sex worker bias is the first hurdle. Potentially, social workers or even sex workers' rights activists could assist in this effort.
- Sex-worker specific organizations or projects would be ideal. At present, the Sex Workers Project exists as a model, though the agenda I propose is doubtless broader than its mandate. Existing social service outfits like HIPS are already in the business of helping sex workers, and if they had the means and could recruit the expertise, they could add legal advocacy to their roster of services. (I do wonder whether it would be difficult, as a practical matter, to serve both illegal and legal sex workers, as the latter may wish not to be associated with the former.) Such projects will probably be difficult to establish and difficult to fund; a truly ideal situation might combine the stability of affiliation with an established organization with a broader mission with leadership or significant input from former and/or current sex workers.
This is big talk, and I can only hope that somebody more knowledgeable and more able than I will hear and run with it. I only know that, somehow, lawyers need to be doing this work.