Society

Against the Legalisation of Prostitution

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.

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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

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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

28 comments
  • ChrisPer

    Wow.
    That sentence: “Supporters of decriminalisation have a utopian view of the industry which is at odds with the lived experience of prostituted women. “

  • mgldunn

    Thanks for this article. I’m glad Quadrant published it. It tells some home truths and makes one think more seriously about prostitution and what it really means.

  • Rebekah Meredith

    I appreciate most of this article. However, I have to disagree with the statement that “few people consider consensual sex between adults to be immoral.” I know hundreds who do. But that’s not really what matters. Even if the whole world thought it was right, what really matters is what God says. “Flee fornication. Every sin that a man doeth is without the body; but he that committeth fornication sinneth against his own body.” That applies to men and women.

  • Peter Smith

    Liked the article Loretta, but having reflected on this issue many times I don’t know exactly where I stand. As a Christian I believe that sex outside of consensual sex between a man and woman within marriage is fornication and wrong. However, most of us have fornicated; and in ways which we believe should not bring legal penalties. Don’t like the idea of moral policing.
    Outside of religious considerations, exchanging sex for cash is a tawdry business, yet it has always gone on. The fact is few men live in fulfilling marriages in all of their sexually-active years. Women see a market opportunity. The product being sold is not illicit in itself, like prohibited drugs or stolen diamonds. Thus, it is difficult to see the grounds for the state to intervene, if the transaction is voluntarily entered into and no third party is harmed.
    Some young women, I understand, have money uppermost in their minds when marrying rich old men. If that is OK, then why is a shorter-term transaction wrong?
    From the foregoing you might think I disagree with you. That wouldn’t be true. I am struck by the ruinous life prostitution brings to many women. It is not a good way to live and society should not give it any sign of approval. Maybe simply leaving laws on the books, enacted in a more censorious age, which are not enforced except in egregious circumstances, is a path through?

  • rod.stuart

    A very thought-provoking article, to be sure.
    Some ancient philosopher (Chinese I think) is quoted in regard to laws that an excess of them only creates confusion an chaos. This article underscores the conflict involved in legislating something that should not be taking place at all.
    Perhaps that is why the Good Lord insisted that ten rules are all that is needed.
    I must confess to having paid for sex two or three times in my younger years. Each time I felt more like the victim than an oppressor. Something like a sheep must feel after being shorn. Of course, I realise that is not the case in most such transactions. The Creator never intended sex to be a commodity. Neither did He intend slavery to be acceptable. However, both have persisted down through the ages.

  • lbloveday

    It seems to me that the author has taken a few anecdotal claims and generalised them to prostitution and prostitutes as a whole. There are victims, real and imagined, in pretty well every occupation, even, we’re told, high profile powerful politicians like Hanson-Young and $US1m+ pa TV commentators like Miss America Gretchen Carlson who got a reputed $US20m payout. Poor dears!
    .
    Does anyone reading this believe the proposed legislation would justify her claim “she may be REQUIRED (my emphasis) 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”? ANYTHING ELSE”! BS on steroids.
    .
    When a younger man I paid for hundreds of sexual services, and I have around 10 friends and a larger number of friendly associates who did similar – the claimed record in our group was 250 different women in a year. I could write at length about how our experiences, and specifically my first-hand ones, give the lie to much of the claims, based on second-hand “evidence” (if that rather than mere supposition), the author makes. But I have more important things to do.
    .
    PS, I would vote against the legislation as I understand it (I’ve not read it in full and will not take the time to do so).

  • RB

    It is not my business what other people do with their bodies.
    The best I can manage is to confine my concerns to my own behavior.
    It takes a Christian to find reasons to think otherwise a lesson learned by the left when the Christian right was all-powerful and was arresting people for doing live shows (Reg Livermore comes to mind). A lesson learned so well the left have out mastered the religious right in recent times. Maybe instead of wringing one’s hands over other people’s choices, we might be better served to gain control of institutional power instead.
    Just a thought.

  • Occidental

    Here we are in the 21st century, and there are still people willing to interfere in the private arrangements of adults, upon the basis of their own personal view of right and wrong. If prostitution or engaging in sexual activity for financial reward so offends the author I suggest she don’t do it. If it offends others I suggest that they don’t participate in the activity either. What a lot fail to realise is that for many women their principal or only asset in life is their sexual attractiveness. How they market that asset either for short term financial gain, or the longer game of hypergamy and matrimony is a matter for them. Why is it so difficult for some people, to let others, live the life they want to?

  • Alistair

    I seem to remember that ?Germany legalised sex work (or planned to legalise) sex work and then it was pointed out that once it was legalised and a legitimate form of employment, all those nice frauleins would lose their unemployment benefits if they refused this type of work if it was on offer. Suddenly, people went a bit cold on the idea.

  • IainC

    Thanks for presenting arguments by Ms Polson about prostitution from a conservative religious perspective, it’s increasing rare to get such conservative viewpoints. However, times have moved on, and I believe the governing mandate is very much “it’s a woman’s right to choose what to do with her own body”, rather than in the old days, other women (and men) choosing what individual women should and shouldn’t do. It seems many feminists also haven’t moved with the times (and often can be barely differentiated from attitudes from the Victorian era), and are often mounted up on a bank, like the old-style preachers, telling other women what is empowering and what isn’t, what is best for their lives and what they are not allowed to do with their bodies or careers. It’s almost as though feminists think women are too uneducated in the ways of the world, weak-minded and cowering that they have to be guided in the correct directions, as though they had “false consciousness”, to borrow Marx’s term about the errant working classes who failed to recognise the genius of communism.
    Many of the same points in the article could also be made about abortion from a conservative perspective, it seems to me; substituting “abortion” for “prostitution” doesn’t alter the perspective too radically. Again, the times where women (and men) could dictate to women what they should and shouldn’t do with a pregnancy are past, and it’s very much these days a private decision between the woman, the father and a medical practitioner.

  • lbloveday

    IanC: “….it’s very much these days a private decision between the woman, the father and a medical practitioner”.
    .
    In many cases the father is excluded completely from the decision-making. Even if the father is implacably opposed to his child being killed, is prepared to pay all expenses, compensate the mother for lost wages and undertake to raise the child without any financial contribution from the mother, there is not a court in Australia that would, or could, order that the death sentence not be carried out.

  • pgang

    Two words: bikie gangs. Or to put it another way: organised crime.
    In my youth I lived for a while above an ‘escort agency’. The tawdriness had to be seen to be believed. Why anyone would think this ‘industry’ worthy of legal protection is beyond me.

  • lbloveday

    IainC

  • nfw

    So prostitution is basically “my body, my choice” applies, but when it’s the governments’ various coersion to use experimental drugs known to cause death and medical complications it doesn’t apply. Makes sense.

  • nfw

    One assumes the proposed changes to legislation will require the brothel owner or space renting contracting “sex workers” to come equipped with “no disease passports” to prove medical “cleanliness” and compliance with laws and regulations regarding the passing of sexually contracted diseases from the “worker” to the customer. It seems to be the case for the common cold and flu these days, so it should apply equally to this.

  • lbloveday

    “The tawdriness had to be seen to be believed.”.
    .
    I’ve no idea what you saw pgang of course, especially as you’ve given no indication of being inside or serviced, but I’ve seen the inside of many “escort agencies”, all neat, tidy, clean and friendly staffed.

  • Alice Thermopolis

    Nietzsche gives the following advice on how to achieve “self-mastery” in Daybreak, Book 2, Aphorism 109: “I find no more than six essentially different methods of combating the vehemence of a drive: avoiding opportunities, implanting regularity into the drive, engendering satiety and disgust with it and associating it with a painful idea (such as that of disgrace, evil consequences or offended pride), then dislocation of forces and finally a general weakening and exhaustion.

    “He who can endure it and finds it reasonable to weaken and depress his entire bodily and physical organisation will naturally thereby also attain the goal of weakening an individual violent drive: as he does, for example, who, like the ascetic, starves his sensuality and thereby also starves and ruins his vigour and not seldom his reason as well.

    One is tempted to say, take your pick, or “whatever turns you on.”

    But for Nietzsche, ” that one desires to combat the vehemence of a drive at all, however, does not stand within our own power; nor does the choice of any particular method; nor does the success or failure of this method. What is clearly the case is that in this entire procedure our intellect is only the blind instrument of another drive which is a rival of the drive whose vehemence is tormenting us: whether it be the drive to restfulness, or the fear of disgrace and other evil consequences, or love.”

  • lbloveday

    Napoleon Hill wrote:
    .
    6. Self-satisfaction. There is but little remedy for this affliction, and no hope for those who suffer from it.

  • pgang

    Bloveday I never went inside. I got to see the life behind the curtains. The after hours stuff, the girls as not presented to the public, the hangers on, the drug abuse, even quite a bit of blood. Sure you can walk in and offer up your money to the bikies and het treated nicely, but what you get is a shallow and falsified fantasy. I guess I’m lucky that I got to witness some of the reality as it’s never held the slightest attraction for me.

  • lbloveday

    pgang. I’d not judge all from one sample. Especially if it was from long ago.

  • STD

    Absolutely right Alice.
    Suggestion , “The nature of faith by Thomas Aquinas” understanding as seen through the eyes of John Lamont. Available on Academia. Edu
    And if you suffer from the boredom of too much excitement I would also suggest” Diachronically Unified Consciousness in Augustine and Aquinas” by Therese Scarpelli Cory of Seattle University, likewise on Academia.Edu.

  • pgang

    Occidental is right in one sense. Any tailor-made-for-me personal choices in relation to morality don’t belong in the 21st century. They are indeed a highly destructive Trojan horse within an enlightened society.
    Unless our public moral principals are founded on a set of absolute principals or truth then we are riding the rapids over the waterfall as a culture. There can be only one central authority, not a disjointed collection of I-wants.
    Which places the rest of the comment in somewhat dubious territory.

  • STD

    Yes , OXY , YES.

  • STD

    Rebekah consensual sex is a cheap con .

  • ralphlhpain

    Dear Rebekah,
    It seems that your arguments against making a change depend on examples of how things already are?

  • ralphlhpain

    Sorry, my previous post was for Loretta!

  • BalancedObservation

    I would certainly not question the motivation behind this article. It seems genuine and strongly held and the writer seems to be motivated by an honestly held disgust for the prostitution profession.

    However it seems to me that the arguments in the article against decriminalizing prostitution rest largely on the premise that a prostitute is essentially a slave. That is false.

    Allowing people to be treated as slaves is an abomination. If allowed to exist in a society it demeans that whole society.

    But a prostitute is not a slave.

    How do we define a slave?

    A slave is a person who is the legal property of another and is forced to obey them. Slaves usually work for no payment other than their keep.

    How do we define a prostitute?

    A person who engages in sexual activity for payment.

    Clearly a prostitute is not a slave.

    There are two themes in slavery which are relevant to this article: consent and payment.

    Arguably selling ones body to be used by another occurs in many jobs. I’m not arguing that it’s the same in all jobs. There’s a big difference for example between selling ones body and abilities as a construction worker and as a brain surgeon.

    There’s also a huge difference between the profession of a lawyer and that of a prostitute. One essentially sells the use of their sexual organs and sexual knowledge and the other sells the use of their mind and their legal knowledge. To be clear I’m not saying they’re the same.

    Now if a lawyer, a construction worker, a brain surgeon or a prostitute were coerced into working against their will or undertaking acts against their will that should clearly not be legal. And I’m sure there’d be cases where that has occurred in all those professions.

    However there’d also be cases where people in all those professions have done what others regard on the basis of genuinely held views as extremely distasteful. But that would not necessarily justify treating those acts as illegal.

    Graphic language in this article related to the consensual use of particular body parts in the sex act by prostitutes doesn’t really add to the case against decriminalizing prostitution.

    Such consensual acts can also occur in marriages or casual relationships. Obviously that doesn’t support an argument for criminalizing such marriages or casual relationships nor such consensual sex acts within marriages or casual relationships. And neither does it support an argument to criminalize prostitution.

    However forced non consensual sex acts should always be against the law whether they occur in marriages, casual relationships or in the prostitution profession.

  • STD

    And yes, these women were once a loving fathers little daughter.

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