South Australia’s parliament is again considering the private member Bill introduced by Greens MP Tammy Franks, the Statutes Amendment (Repeal of Sex Work Offences) Bill 2020. This is the same Bill supported by Liberal Attorney-General Vicki Chapman last year to wholly decriminalise prostitution and leave it unregulated. That Bill was defeated. Notwithstanding, it has been reintroduced.
In this article I propose to identify and rebut certain myths put forward in support of the promotion of the legalisation of brothels and to highlight issues that have been ignored by those who promote sexual servitude as work. The article is not intended as a comprehensive thesis on the speciousness of the pro-sex work manifesto. That task has been undertaken by numerous feminist academics and survivors of the sex work “industry”. Worth noting is that, perhaps unlike some readers of this publication, I do not embrace many so called “conservative” views. In other words, left or right or anything else shouldn’t matter when the obligation of all is to confront evil.
Some, those of a libertarian bent in particular, will likely disagree with Ms Polson’s argument. Well that is what the comment thread is for. Readers are invited to agree or differ below
Myth: The removal of the threat of prosecution for engaging in sex work will provide safety and wellbeing for sex workers.
Reality: It is fallacious to refer to “the threat of prosecution”. In South Australia prostitution as an offence does not exist. The offences set out in current South Australian legislation primarily relate to brothel management and deriving profit from a prostituted person.
Sex “work” is, itself, inherently dangerous and unhealthy. Placing a woman in a brothel does not enhance her safety and/or wellbeing. When a woman is alone with a man who has purchased her body for sex, she is powerless. Prostitution is not as portrayed in Pretty Woman. Rather, think along the lines of Game of Thrones, where women are routinely assaulted, brutalised and treated as commodities by customers and brothel owners alike.
Decriminalising the purchase of a body for sex ignores the reality of abuse and subjugation. A person who engages in sex work relinquishes her right to control the use of her body, her vagina, rectum, breasts and mouth. The fact that money is exchanged does not legitimise this. Legislative commodification of a body will actually embolden customers to believe that they have the right to do as they wish to a body, access to which has been purchased. If the sale of the body for sex is sanctioned by legislation, then what is rape? Unpaid labour?
During my thirty-plus year career as a lawyer, I have had occasion to act for prostituted women and for brothel owners. The latter have no concerns for women’s wellbeing but consider it acceptable, for example, to direct “a couple of girls” to attend off-site all-night gang bangs euphemistically called “parties”.
Myth: Sex work is a job like any other. Decriminalisation can change prejudicial views held about sex workers whilst acknowledging that such work has been occurring in society throughout time.
Reality: Sex work and the activity of sex are erroneously conflated. Few people consider consensual sex between adults to be immoral and it is certainly not illegal. There is a difference between avocational sex and “sex work”. What other job requires a person to make her body available for groping, penetration and abuse by a stranger? The mantra of “it is a job like any other” attempts to sanitise a dehumanising and degrading activity. Opportunity for dignified work is what a feminist would seek for herself and her sisters.
The Federal Parliament is currently considering the Sex Discrimination and fair Work (Respect at Work) Amendment Bill 2021. Section 28AA of the proposed Bill broadly provides that a person harasses another in the workplace if the person engages in unwelcome conduct of a seriously demeaning nature in relation to the person harassed. Harassment occurs if such conduct is undertaken in circumstances in which a reasonable person having regard to all the circumstances would have anticipated the possibility that the person harassed could be offended, humiliated or intimidated. The circumstances to be taken into account in determining if the criteria are met include the relationship between the person harassed and the person who engaged in the conduct.
Given the imbalance of the relationship between the punter and the prostitute, it should be reasonably assumed that the conduct is intended to offend, humiliate or intimidate. This would especially be the case and in respect of young workers and those of a non-English speaking background.
It cannot be assumed that a brothel employee willingly submits to the sexual advances of a customer. Most people go to work to derive an income. Not everyone can choose where they work. For many it is a question of taking whatever work is available. The assumption that prostituted women enjoy sex with strangers is misconceived. If she wanted to have sex with you, John, you would not be paying for it!
If brothels become a legitimate place of employment, then the Social Security Act will need to be reviewed. This will be needed to ensure that individuals are not forced by economic necessity to work in brothels. Currently, in order to qualify for JobSeeker payments a person must satisfy the “activity test” as set out in section 541 of the Social Security Act. This requires a person to undertake paid work other than work that is “unsuitable to be done by the person”. In determining if work is “unsuitable” the “skills experience and qualifications” of a person are considered. Arguably, anyone with an orifice can undertake “sex work”.
The “activity test” set out in the Social Security Act does specify that the cultural or religious background of a person may render certain employment unsuitable. If “sex work” is a legitimate occupation, in what circumstances will the Secretary of the Department of Human Services determine that sex work is “unsuitable”? Will job seeker payments be denied to those who do not wish to take up “a job like any other?”
In recent times I have acted for a young woman whose unemployed husband encouraged her to work as an escort. He would take their young child to the local playground whilst she serviced men in their home. Her income was used to fund the husband’s drinking and gaming expenses. After two months my client called it quits to her marriage and escorting. If passed, the Bill will make it impossible for women like my client to resist and argue against those who would coerce them to work in a brothel as the so called “work” has legislative imprimatur.
Myth: Decriminalisation will ensure sex workers are subject to the same rights and protections of other members of the workforce.
Reality: Assuming a sex worker is an employee as opposed to an independent contractor, the sex worker will not benefit from “rights and protections of employment”. As an employee she will be obliged to follow the reasonable directions of the employer. Reasonable directions will require her to do whatever the customer wants, irrespective of the woman’s wishes. Employees do not get to choose their tasks and are legally required to follow reasonable instructions of their employers. At the present time job descriptions do not (or should not) involve sexual servitude. A sex worker will be obliged to perform whatever sexual activity the customer requests. For example, she may be required to tolerate being slapped, spat upon, swallow or have ejaculate sprayed on her body, submit to anal penetration, golden showers or anything else which the customer may request. A brothel menu is not limited to vaginal penetration or manual relief. Treating a woman as an employee will encourage customers to believe they have a right to do as they wish. Sex workers report being verbally insulted whilst penetrated – “I paid for you, bitch!”
The Australian Government Fair Work Ombudsman website notes that a worker is bullied at work if a person acts unreasonably toward another, and the behaviour creates a risk to health and safety. If brothels are places of employment, policies need to be devised and adopted. How will we deal with sexual harassment when that is at the heart of the job description? I fail to see how people employed in a brothel will be able to access the protections afforded by the Fair Work Act and the Sex Discrimination Act?
One current South Australian politician with a union background supports Ms Frank’s Bill because it is asserted that it will enable sex workers to claim compensation for work-related injury. The idea of promoting sexual abuse as work and offering Workcover for injuries arising from such abuse is perverse. The reality is that brothel owners do and will arrange their affairs so that workers are not deemed to be employees.
Prostitutes are not paid for sitting around waiting for punters. They are paid for servicing customers. Decriminalising brothels will not result in payment of an hourly rate, irrespective of services performed. The same way as employees in many sales or service industries have budgets, be assured that women in brothels have service quotas to meet. They have the disadvantages of both independent contractors and employee status. There is a conflated hybrid payment model that favours the pimp. Nothing about that will change with the legalisation of brothels.
Licensing of brothels has been naively and imaginatively promoted as a way to recruit fit and proper people to run brothels. Licensing of brothels facilitates more dangerous exploitation. Recently, a senior sargent of the Federal Police revealed the workings of a licensed brothel in Victoria. A woman had been recruited from overseas for the purpose of working in a brothel. The woman was aware that she would be undertaking sex work. She was not aware that she would have to pay the cost of her relocation which was unilaterally determined to be $40,000. In order to pay this, she would be required to service nine hundred customers. Do the maths, dear reader, should the price of degrading a woman be equivalent to the cost of a slab of beer?
Myth: Decriminalisation of sex work will more easily facilitate the prosecution of those who commit physical or sexual abuse of sex workers.
Reality: This at least acknowledges physical and sexual abuse as a risk. Proponents of sex work claim it empowers women as they have the choice to use their body as they see fit. They sometimes use a specious analogy of athletes using their body for financial reward. A footballer decides how he or she kicks the ball. A prostitute has no choice – her body is used by the customer who asserts he has paid for the use of same. She is the ball not the player. An empowered woman expects and receives sexual pleasure from her chosen lovers. She does not surrender control of her body to a stranger in exchange for money.
Myth: The decriminalisation of sex work is necessary to improve the health and safety conditions of sex workers and will facilitate the seeking of medical and psychiatric assistance.
Reality: There has never been any barrier to seeking medical assistance about the sequelae of sex work. This includes genital and anal trauma and other injury arising from assaults perpetrated by customers (and brothel owners), removal of foreign objects in bodily cavities, the treatment of STIs and abortion.
Sex workers regularly report symptoms with PTSD after exiting the industry. Arguing that we need to provide medical and psychological assistance ignores the point that the assistance is needed only because the work is physically dangerous and unhealthy. It can be profoundly psychologically disturbing. One sex worker reported to me that it took her body two years to fully recover from the trauma of regular and ongoing assault. Anaesthetising cream was regularly used to dull the pain arising from being pounded by ten men per shift. Verbal abuse added insult to injury. She had to listen to customer comments such as “you like this don’t you, you slut.” She still reports symptoms of PTSD.
CONCLUSION: Supporters of decriminalisation have a utopian view of the industry which is at odds with the lived experience of prostituted women. Ironically and disturbingly, there is support for the Frank Bill from idealistic, educated women who have swallowed the “empowerment” argument. Lucky for them their education gives them work choices and they are unlikely to have to sell themselves for a living.
The South Australian Parliament is in an uproar because former Liberal MP Mr Sam Duluk, now an independent, was alleged to have slapped a female colleague on the backside at a Christmas party, a charge for which he was acquitted. This same Parliament is contemplating the legislation of the degradation, humiliation and abuse of women.
On a broader level the “#MeToo” zeitgeist amplifies the hypocrisy which is evident when educated privileged and articulate women expound the argument that sexual servitude is a “job like any other” suitable for their marginalised sisters who, because of life circumstances and lack of opportunity, have limited employment choices.
Loretta Polson is a solicitor and a current member of the South Australian Law Society Council. Her views are her own and are not put forward as representative of the other 3,994 Law Society members