Last month, the St Andrews Foreign Affairs Review published an article entitled “Modernising the World’s Oldest Profession in Argentina.” The article concerns proposed legislation to criminalise patronising prostitution, in an effort to combat sex trafficking. At present, individual prostitution is legal in Argentina, while pimping and brothels are illegal. Unfortunately, there is no way to distinguish between the two in practice; this is one of the many fatal flaws of any pro-legalisation argument. In any discussion of prostitution, which falls under the wider umbrella term of commercial sexual exploitation (CSE), it is critical to remember that prostitution is a demand-driven industry, meaning that if few or no people sought the opportunity to pay for sex, prostitution would not exist. If these same people were not seeking to buy sex, there would be no incentive for traffickers and pimps to coerce or traffic people into the industry. The clarification that is consistently lost in discussions of prostitution legislation is as follows: prostitution should not be outlawed because sex—in any given form—is immoral, but rather prostitution should be outlawed because the sex industry is inherently exploitative from a human rights perspective. Human rights are based on the right to be safe in body and mind, and these rights are inalienable and cannot be sold.
Most pro-legalisation arguments, such as Brian’s, are driven by a concern for freedom of choice. These arguments fail to fully examine the concepts of choice and agency. If a woman is abused, homeless, unable to provide for her child, or an underage runaway—which are just a few examples of the common narratives of sexually exploited people—she in a position that is too compromised to make a choice that can be used as a validation for legislation. Legalising prostitution is in effect authorising inaction; rather than go this route, legislators worldwide should follow the lead of human rights activists and social workers and acknowledge that CSE exists because of a failure in society’s ability to care for people who are in trouble. CSE is exploitation of people who have nowhere else to turn.
Specifically, Brian’s article states that: “Although the motives for passage of this new law reside in noble efforts to combat two major global social issues, prohibition legislation only undermines the rights and health of both sex workers and their clients.” Farther along in his argument, he mentions that in the decade following the state of Rhode Island legalising indoor prostitution, reported cases of rape declined. This is one of the most abhorrent arguments for legalisation used. Legislators should never be in the position of legislating using unscientific lesser evils of criminality. Why are potential rapists “clients” whose “right” to buy sex needs to be protected? In trying to support his argument for legalisation, he confirmed that individuals who patronise prostitutes can be people who pose a risk to the safety of others. Prostitutes have a 40 times higher mortality rate than women not involved in CSE (www.rapeis.org). The most dangerous job in America is reported to be logging, with 128 fatalities for every 100,000 workers. A National Center for Biotechnology Information study estimated a mortality rate of 391 per 100,000 sex workers. Furthermore, this does not account for the fact that, as Brian mentioned, prostitution statistics are unreliable because of the underground nature of the industry. As with other sex-related crimes such as rape, it is reasonable to expect underreporting in CSE statistics. Brian’s argument relies heavily on the lauding frequent STI testing, but fails to recognise that the need for regular testing is a fundamental problem: why should governments condone an unnecessary industry with such high levels of risk to the health and safety of workers?
In his article, Brian condemns the Argentine government for refusing to recognise the sex-workers’ union AMMAR as an official union. Although there are undoubtedly benefits from the organisation, a better case can be made for the Argentine government not wanting to condone the industry than can the gender equality argument Brian attempts. He also states that, “Today, this unofficial trade union boasts a membership of over 15,000 female prostitutes, of whom 89% are mothers and 93% are the breadwinners of their families.” While this may sound promising, it is important to remember the concept of making choices from a position of empowerment: of those 93%, how many felt they had no other means to support their family? Furthermore, the average age of entry into prostitution is 13 years old. No 13 year-old can make a choice to enter prostitution, and that is the average legislation must be based upon.
According to Brian’s article, “the failures of the current status of prostitution result from Argentina’s legal straddling of the issue, which allows for this civil freedom without implementing any form of measures to ensure its safe and responsible practice. The complete prohibition of prostitution would only force participants in the sex industry to go further underground and would place sex workers in greater danger without legal recourse.” The complete prohibition of prostitution may drive it further underground, however the best possible way to handle the problem would be what has been proposed in Argentina: a crackdown on the demand side of the industry, with an eye to the fact that prostitution and trafficking too often synonymous. Whether or not the legislation is executed effectively is another matter. Trafficking is hard to catch with the naked eye—or even complex police work—and patronising prostitutes needs to be illegal to both stymie demand and give the police authority to intervene in situations of abuse and coercion, which is the predominate scenario globally. Legislation must be concerned with the rule, and not the exception. Prostitution is sexual exploitation, and just as the majority of people do not seek to buy sex, the majority of individuals engaged in prostitution are at extreme physical and psychological risk. No amount of regulation can change the reality of selling a body, regardless of how free the choice appears.