Tag Archives: consent

Prostitution, Decriminalization and the Problem of Consent

Last month Amnesty International came out in support for “the full decriminalization of all aspects of consensual sex work.” The reasons make sense: Decriminalization will eliminate the jail time and fines that punish (mostly) women for trying to make a living; it will give sex workers access to the health care and services that other kinds of workers benefit from; and it will allow sex workers to turn to the police for protection without fear that they themselves will be arrested. Amnesty International rightly asks, “How can we reduce the threat of violence to sex workers? What can be done to ensure their access to medical care and help prevent HIV? And how can discrimination and social marginalization that put sex workers at increased risk of abuse be stopped?”

But then I looked a bit more closely and two little words made me sit up for a double-take: “all aspects”? Seriously? An organization that I deeply respect has called for the decriminalization of pimping and procuring? Apparently, yes, for the reason that anti-pimp laws have been used to arrest sex workers who share a working space. Does that happen frequently enough to justify decriminalizing all pimping and procuring? It turns out that the answer is no – these laws are not used against sex workers anywhere near as often as they are used against actual pimps and procurers.

I took another look at the statement, and this time noticed a preemptive argument that, I would guess, was written to fend off attacks from people — like me — who would not be so thrilled with across-the-board decriminalization: “These questions about health, safety and equality under the law, are more important than any moral objection to the nature of sex work.” Oh no! My colleagues at Amnesty International could not possibly have used one of the cheapest tricks in the rhetorical arsenal — creating a straw man (“moral objection to the nature of sex work”) in order to imply that the only reason someone might disagree with blanket decriminalization is because of “moral objections” — a kind of objection that, in the current political climate, conjures up right-to-lifers, the Christian right, and other other enemies of human rights! Didn’t they understand that people – like me- might disagree for other reasons entirely?

The Question of Consent: Context Always Matters

Having spent ten years engaged in research and friendship with marginalized and criminalized women in Massachusetts – most of whom have exchanged sex for money at some point in their lives, I am most troubled by the words “consensual sex work.” Amnesty clarifies that they are not calling for the decriminalization of human trafficking or of people who force children or women into sex work. But this glosses over inherent problems in identifying any particular sex work situation as truly consensual.

Kahtia [not her real name], a woman I’ve known through many ups and downs, recalls with some pride a short-lived glamorous career as a prostitute and drug dealer in up-scale New York City clubs. Within a short time, however, “I became my own best  [drug] customer and had to go to the streets to make money for drugs.” Street level prostitution was not so glamorous. She learned to become totally numb and dissociate herself during sex. Kahtia demonstrates this by tipping her head back, closing her eyes, and dropping her jaw open. “It was just…wait for him to finish and give me the money.”

Was this “consensual”? One could argue that it was: She initially chose high-paying sex work and drug dealing (exactly the kind of “consensual” sex work Amnesty likely had in mind), and even the subsequent sex work could be seen as a choice she made in order to support her wish to use drugs. But, looking even further back:

Kahtia’s earliest memories are of Sunday dinners at the home of her Irish maternal grandparents. The clan, including Kahtia’s mother and white half-sister, would be seated around the family table. Kahtia and her brother – children of an African-American man — were told to eat in the hallway: Their dark skin color was not welcome at the dinner table. An under-the-radar heroin addict, Kahtia’s mother supported her own habit by shooting up Kahtia and her brother with drugs and receiving money from the men she invited to rape them. Kahtia remembers her father as a good but weak man (he was an alcoholic). She also remembers being told she exhibited “unruly behavior” due to which she was removed from home and placed into a residential program for “problem kids”. Child Welfare Services did not believe Kahtia’s stories of abuse, and she was sent home on weekends where the rapes continued. By the time she was ten Kahtia decided that anywhere she went would be better than home, so she ran away. Living on the streets as a very young girl, Kahtia encountered what she considers to be her first bit of good luck: She was adopted by a powerful gang. Emoting pride, Kahtia recounts how the gang leader heard of “the girl who kept a razor blade hidden inside her mouth” in order to defend herself, and supported her in her initial forays into drug dealing and upscale prostitution.

The details vary, but the broad outlines of abuse, time in juvenile institutions, an initially helpful older man, fear, anxiety and drug use are present in the experiences of nearly every woman I know who has ever worked in prostitution, even for a brief time.

One might be tempted to say that for at least some women, paid sex work constitutes disengagement from or resistance against traditional patriarchal practices of marriage — at least they are getting paid for what other women may be compelled to do for free. Marjolein van der Veen, a feminist economist, suggests that prostitution “opens up possibilities for commodification as a site for new economic alternatives of producing commodities in noncapitalist class structures.” Jane Scoular, a legal scholar, much along the lines of the Amnesty International statement, similarly argues that that there is nothing inherently harmful in sex work. Rather, the problem for women lies in specific temporal settings in which sex work is criminalized, marginalized and stigmatized.

While these contentions may have some intellectual merit, in my many conversations and interactions with Massachusetts women who have worked in prostitution I have never glimpsed even a hint that it’s possible to extract a neutral commercial exchange (sex for money) from the real life worlds of women who are poor, sick, homeless, abused, and / or trafficked. These contentions, as Rutgers University professor Barbara Foley writes, “tragically disregards the oppression that forces women into prostitution.” Indeed, every one of the women I know says, in one way or another, that working in prostitution, compared to even the worst marriages and lousiest jobs at fast-food joints, is like jumping from the frying pan into the fire.

The Gazer and the Gazed

The women I have met make it clear that unwanted, repeated bodily penetration is not equal to other paid or unpaid labor. In order to work in prostitution they must disengage the self, “go numb.” Sex work – by its very nature — transforms the body into an object to be gazed at rather than a subject with the power to gaze. Olivia (pseudonym), a former stripper interviewed by law professor Jody Raphael, recounts her experiences working in a peep show: “I know how the animals in the zoo must feel as people walk by gazing at them.” Raphael, who interviewed Olivia over a period of many months, understood that Olivia dealt with this work, “By disassociation through alcohol and drugs, and through the fantasies of pretending she was someone else, Olivia left her true self behind. While in stripping, Olivia never used her real name.”

Raphael’s observations illuminate that problematic word in Amnesty International’s position — consensual. As Rachel Moran, an author and advocate who was pulled into the sex trade when she was fifteen years old writes, “I know from what I’ve lived and witnessed that prostitution cannot be disentangled from coercion.”

True consent, as understood by every university and hospital ethics committee in the country, requires explicit acknowledgment of the inherent power differential between the researcher and the study subject – between the gazer and the gazed. While messy and complicated everyday life is not the same as a controlled research setting, informed consent standards that reflect decades of legal, philosophical and ethical consideration point to the difficulties in assessing sex work as consensual. Informed consent standards adopted in the wake of Nazi medical experimentation and other blatant human rights abuses require that all possible risks be clearly spelled out and understood by the study subject; it requires the subject to be fully physically and mentally competent to give authentic consent; it makes explicit that the subject is free to end the encounter with no explanation and with no penalty at any time; it spells out to whom the subject can report problems with the study or the researcher; and — of particularly great relevance here – it disallows the researcher to offer payment or other forms of compensation that can be construed as unduly pressuring the subject into agreeing to the study.

By these standards, and in light of the real life experiences of most sex workers, decriminalizing all aspects of “consensual” prostitution, is likely to turn out to be, as Rachel Moran writes, “[I]n the name of human rights [a way to] decriminalize violations of those rights, on a global scale.”

For a deeper discussion of these issues see Susan Sered and Maureen Norton-Hawk. 2011. “Gender Overdetermination and Resistance: The Case of Criminalized Women.”   Feminist Theory 12(3): 317-333.

 

 

Sex, Gender and Informed Consent

A shorter (and much pithier) version of this essay was published today in the Washington Post.

California’s SB967 – better known as the “yes means yes” law – clarifies the contours of sexual consent. For universities to receive state funds, they must now employ an “affirmative consent standard.” That means that both parties must actively, consciously and voluntarily agree to engage in sexual activity.

“Yes means yes” addresses both the high rate and the particular nature of sexual assaults on college campuses. According to studies one in five college women have been sexually assaulted. College victims are especially likely to be raped by someone they know and / or while incapacitated by drugs or alcohol. And they are less likely than women in the general population to define their experience of sexual assault as “rape” or to report assaults to law enforcement authorities. Because most campus rapes are not carried out by self-conscious criminals who set out to commit sexual assaults, SB967 makes use of the opportunities offered by a college setting to reduce sexual violence through education rather than solely through punitive actions.

Critics have argued that this measure will be impossible to implement on the grounds that “consent” is too difficult to gauge, that it constitutes government intrusions into the privacy of one’s bedroom, that it unconstitutionally presumes guilt, and (I assume mockingly) that it will require all men to tape video cameras to their genitals in order to prove that women continue to consent throughout the entire sexual encounter.

Concerns regarding the nature and feasibility of consent are not new, and fortunately for California and other states considering similar laws, these concerns have been thoroughly and successfully addressed in other settings. As the former Chair of the Institutional Review Board (the body that reviews the ethics of research involving human subjects) at Suffolk University, I have seen how well-developed, refined and extensively evaluated protocols for informed consent in human subjects research contain real protections for vulnerable populations as well as the flexibility to allow research to thrive.

Clearly, there are differences between research and party settings in terms of the business-like atmosphere of research interactions versus the recreational atmosphere of college interactions, the clarity with which the roles of researcher and subject versus the roles of college class mates are defined, and the amount of planning that goes into research versus a party.

But there are significant similarities as well. In both settings everyone involved may assume that all parties to the interaction have everyone’s best interests at heart and that there are no or minimal risks to participation. It is these kinds of assumptions — both by researchers and by subjects — that led to tragedies such as the Tuskegee syphilis experiment in which rural African American men were given free meals (and burials) for participating in the study, but were neither told that they were infected with nor were they treated for syphilis and to the need for subsequent restrictions on human subjects’ research.

Protocols for protecting human subjects recognize the power differentials inherent in the relationship between researchers (in possession of knowledge, institutional backing, monetary resources and access to goods and services such as new medical treatments) and human subjects. Gendered interactions similarly are inherently unequal given the greater incomes, financial assets, political power, physical size and strength of men, as well as the far greater likelihood that women (nearly one in five) have been raped at some time in their lives.

If regulations, whether for human subjects’ research or for sexual consent, at times seem tedious, we acknowledge that past injustices and current inequalities legitimately demand heightened scrupulousness in ensuring true, informed consent. Informed consent does not mean reading off a list of bureaucratic legalese. To the contrary, it entails authentic conversation regarding the roles of all participants.

How would this play out in a college setting?

Just as a researcher cannot acquire informed consent from a comatose or cognitively impaired subject, “yes means yes” requires that all parties to a sexual encounter are conscious and sufficiently sober to give meaningful consent. Consent does not necessarily need to be verbal – it can be indicated by a vigorous nod of the head or by moving in closer to the partner to the interaction. But it can never be assumed simply by the absence of aggressive resistance.

Along the same lines, it is the responsibility of the researcher to share with potential subjects all information needed to make an informed decision, and to clarify that the subject heard and understood that information. In terms of “yes means yes,” this principle translates into the responsibility of potential sexual partners to disclose information such as HIV status, the existence of other committed relationships, or actual motivations behind the encounter (for instance, whether the encounter is part of a fraternity initiation ritual).

Researchers are required to present potential subjects with a real choice regarding participation; we are not permitted to offer substantial monetary incentives and we are not allowed to withhold access to services or resources for those who do not wish to participate. The responsibility of researchers to refrain from badgering, tricking, or threatening subjects or potential subjects directly translates to the college setting where potential sexual partners should be trained to avoid pressure such as “If you don’t have sex with me I’ll tell people you’re a frigid bitch and you’ll never be invited to another party” or trickery such as inviting a first year student to a “cool” frat party with the intention of plying her with alcohol and manipulating her into a sexual encounter.

Particularly relevant to colleges, researchers are required to inform and remind human subjects that they may leave the study – with no negative repercussions and no need to justify or explain their decision – whenever they wish. In terms of SB967, a kiss really can just be a kiss and both parties to the kiss can walk away without threatening or humiliating accusations of “leading me on.”

In human subjects’ research, as in sexual encounters, no law will change the behavior of those few individuals truly intent on hurting others. While the initial push for human subject’s research regulation came about in response to the horrific Nazi medical experimentation on powerless victims, I don’t believe that the best ethics board in the world could have stopped Nazi doctor Josef Mengele.

Along the same lines, I do not believe that SB967 will stop a perpetrator who consciously sets out to assault a fellow college student. It will, however, educate the many men who do not wish to be abusers on how to assess their own behavior and interactions. It will empower the many women who are not sure whether they really can say “no,” or if the unwanted sexual encounter really was “rape” to report and confront harmful actions and policies. And it will obligate colleges to provide compulsory and meaningful training in gender equity to women and men.

In human subjects’ research the bottom line is that we educate researchers to make honest and intelligent efforts not to exploit or cause harm to others, and we acknowledge that in the heat of the moment (yes, researchers do get passionate) we might be tempted to use our status or power to coercively. As a community of well-intentioned scholars, we welcome the guidance on how to minimize the risk of doing so. In that light, it’s hard to see why there has been so much opposition to “yes means yes.”

Read more here on why “yes means yes” is good for women and men.