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MWL PUBLIC POLICY ADVOCACY COMMITTEE More Perfect Union Every year, protective legislation is introduced at state and federal levels to combat the increase in domestic and international sex trafficking in the United States. Often these efforts are hampered by conflicting ideas of women’s rights and controversy over the nature of consent. The federal Trafficking Victims Protection Act (TVPA) requires that force, fraud or coercion be proven to establish the crime of sex trafficking.[2] Minnesota law, to the contrary, does not require this element, and additionally stipulates that consent is not a defense to the crime of promoting prostitution.[3] Sorting through the arguments in favor of each approach is a delicate task, hinging on varying conceptions of free choice, women’s sexuality and social equality. Even among self-identified feminists, consensus is rare. As lawyers, judges and legislators, the challenge before us is to fashion a solution that both respects women and girls’ right to free sexual expression, while ensuring that the injurious exploitation of vulnerable women and girls is not allowed to flourish with impunity. We must take care that our vigilant protection of hard earned sexual freedom does not lead to lax punishment for those who would sell our daughters into sexual slavery. At the same time, we must be watchful that our struggle against sexual predators does not lead to stricter control of women’s bodies. Prostitution v. Sexual Slavery To many women, laws criminalizing prostitution represent nothing more than paternalistic protection of women’s bodies and minds. To prohibit women from selling their bodies is to insinuate that women don’t know what’s best for them, that their decisions are not sound and that they are in need of guidance, especially concerning matters of sex. This out-dated proscription is born of the idealized image of a virtuous woman. She does not lust after men. She does not have sex for physical pleasure, but only for love. She is celibate until marriage and she is innately maternal. Prostitution is criminalized because it does not fit within this narrow view of women’s sexuality. The aberrant behavior of prostitutes is damaging to the moral fabric of society and must be controlled. Under this reasoning, decriminalized and de-stigmatized sex work can actually empower women. As a legitimate, regulated profession, some women may be able to find the financial independence they need to escape an abusive relationship or to provide for their children. In addition, decriminalized prostitution would enhance women’s health and safety, by ensuring that women who have been threatened or assaulted can seek the help they need, without fearing arrest by police or contempt from doctors. Opposing arguments contend that this is merely a convenient way of dismissing the harsh reality of prostitution. Victims are often runaways who enter the profession at 12 or 13 years of age, before they can legally consent to sex, much less with a “client” or “john.” Prostitutes are often branded with tattoos revealing the names of their pimps. Girls who attempt to escape can be identified by the markings, and are kidnapped and returned as if they were a form of property. The stories of young girls who are beaten, raped and drug addicted at such a young age make a relative mockery of any argument that suggests prostitution is a free choice. To the contrary, the scenarios pitched by advocates for decriminalization represent a romanticized version of the real thing, akin to that seen in movies like “Pretty Woman” and “Milk Money.” Even taking into consideration that legalized prostitution may be empowering for some women involved in sex work, the overall effect for the majority of women relegated to the life of a prostitute would be devastating. Still a third school of thought suggests that we can’t even begin to think in terms of free choice until women are truly free of the social and financial inequities that still exist in America. Any grand notions we may have regarding sexual freedom and consent are often eclipsed by racism, sexism and classism. Prostitution is born of negative social conditions such as poverty, drug addiction, abuse and ultimately the devaluation of women and girls. The act of treating women as sexual objects has become so normalized over decades of continuous and increasing media exploitation, that some young girls have become almost completely desensitized to the significance of sex. The glamorization of “pimps” has resulted in a continuously supply of adolescent girls willing to sell themselves on Craigslist for nothing more than handbags, iPods and social status. Working Towards a Solution It makes little sense to consider the choices of women and girls with such a myriad of exposures and experiences according to our own privileged notions of free will. It should hardly come as a surprise that educated young women, from financially stable, emotionally healthy homes do not opt for prostitution over teaching, cooking, nursing, law school etc. The “choice” to engage in sex work is far more likely to be an unhappy survival mechanism than a long term career goal. According to this logic, the most practical approach is to employ protective legislation as an equalizing force. Rather than concentrating on the difficult issues of coercion and consent found in the Minnesota and Federal statutes, some advocates prefer legislation based on the Sweden model, which decriminalizes the selling of sex, but not the purchasing of sex. This would enhance the health and safety of any legitimate sex workers, as urged by advocates of decriminalization in the United States, but would also protect women and girls from exploitation by pimps and johns. This method of combating sexual predation would effectively flip the current system in which prostitutes are arrested and jailed at far higher rates than pimps and johns. Whichever ideology or approach seems most appropriate, it is important to note that prostitution and sex slavery are not diametrical opposites that have no relation to one another. Each falls somewhere along a spectrum, from Playboy models, to weekend pole dancers, to Las Vegas showgirls, to 13 year old runaways, to imported sex slaves, with any notion of true consent growing weaker and weaker as you slide along the spectrum. You don’t have to slide very far at all in fact, before sex stops looking like a form of female empowerment, and begins looking more and more like a weapon.
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