Addressing the Convergencies Between Voluntary Sex Work and Sexual Exploitation for a Sex Positive Culture.

Introduction

When one discusses sex work, two perennially conflicting positions persist: those who recognise voluntary sex work as real work and those who associate it with a form of exploitation, denying the possibility that anyone can freely choose that profession. Even among feminists, there are conservative traditionalist groups who argue that sex work is degrading to women, placing it among the causes and consequences of gender inequality because of the male subordination of women (Anderson, 2023). 

In this context, in which even those who fight for women’s rights bring forward such paternalistic demands as those of patriarchy, it is essential to look closely at the understandings of voluntary sex work, sexual exploitation, and trafficking that wander around the debate. A better comprehension of this is also instrumental in knocking down the objections of those who advocate for the abolition of sex work, which is based precisely on its association with abuse against women. 

Sex work remains an international taboo that has transcended space and time in political circles. Therefore, an analysis of sex trafficking law and the regulation of sex work must be undertaken for a clearer picture. However, the international law on trafficking itself is unclear, and those laws related to sex work do not consider it in its nuanced nature instead mainly referring to prostitution. This fails to address  pornography, stripping, cyber-sex, and many other forms of sex work, thus creating important legislative, political, and social gaps. Laws and public debate also tend to revolve around the morality of sex work and the best approach to protect women from exploitation (Jones, 2023). However, the law should be based on concrete evidence of best practices to protect sex workers and not on personal moral values, the understanding of which is subjective and changeable, creating not only ambiguity but also discrimination against sex workers.

For the purposes of the article, the term sex work is used to indicate sexual acts that are performed voluntarily, knowingly, and independently in exchange for money or other goods (Freeman, 1989). When it is referred to as exploitative sex work, it is clarified.

Human trafficking and sex work: are they the same?

Human trafficking is not a new phenomenon, nor are the laws criminalising it. The United Nations’ Trafficking Protocol adopted in 2000 defines it as the recruitment, receipt, and/or coercion for the purpose of exploitation, which includes, but is not limited to, the exploitation of persons for the sex trade (Zollino, 2020). The Protocol in Article 3 also defines the consent of the trafficked person as irrelevant where the elements of the definition of trafficking are met, thus recognising a person as a victim of trafficking even if  negotiation and consent between the two parties have taken place.

This delineation of the law, however, implicitly trivialises trafficking, taking attention away from the dynamics at the origins of trafficking, that is, the trafficked person’s status of origin. Speaking of a trafficking ‘victim’ is part of this trivialisation: it purports to include both situations of extreme violence of abduction but also those more negotiated and consensual situations that nevertheless fall within the definition of trafficking. In contrast, the two conditions are quite different. Particularly in negotiated cases, trafficked persons are identified as passive persons who do not engage in self-legitimising actions, but by changing perspective one can see that trafficking was for them a chance to break free from an abusive reality of origin. Basically, it is difficult to frame all the phenomena and profiles of trafficked persons due to the lack of legal precision clarifying the nuances of coercion (Leonelli, 2023). This is because the law excludes the voices of those who are directly involved in the sex trade, whether voluntarily or involuntarily, leading to their politicisation, depriving them of their rights to self-determination and to claim their needs, and thus depriving them of an active role in the fight against human trafficking (Leonelli, 2023). As a result, trafficking is framed within a precise scenario, in which unwitting women are abducted or transported to another country under false pretences for the purpose of sexual exploitation. This narrative and these details are exaggerated to the point of moving away from the underlying problem of trafficking to something else, namely the criminalisation of prostitution. Law enforcement makes no distinction between sex work and sex trafficking, considering them almost interchangeable terms (Leonelli, 2023). However, their divergence is important to clarify. 

Following the definition of trafficking set out at the beginning of the chapter, it is clear that some experiences of sex workers might fall into the case of human trafficking. However, at the same time, it is understood that not everyone who works in the sex industry has been trafficked and that countless other case histories exist (Anderson, 2023). Therefore, trafficking simply may lead to some forms of sexual exploitation, of which sex work is not the cause (Zollino, 2020). Exploitation exists in every sphere of work, and often, even the specific programmes for those identified as victims of trafficking, or for the voluntary sex workers who want to exit the industry, provide work placements where ‘victims’ are again subjected to similar dynamics of exploitation and discrimination (Zollino, 2020). In Italy, for example, the social and professional integration programme provides the activation of work grants and internships for a set period of time, which does not result in stable employment (Stefani, 2013). In recent years, the image of the ‘exploited trainee’ entered the collective imagination of many Italians: under Italian law, an internship is not a formal employment contract, which enforces and normalises a system of precariousness and exploitment though. Defined by the Italian Ministry of Work and Social Policies as ‘a period of orientation and training’, basically the internship is an agreement between a company and an individual whereby the latter works for the company to gain experience and knowledge with remuneration provided by the Regions. It does not provide for sick days or days off and the minimum level of remuneration is set at approximately 450 euros per month for a full-time trainee (40 hours per week which is often much more) without future stable employment and/or salary increases (Nasi, 2021). This sheds light on the sad reality of Italian employment, where companies and institutions use internships as a tool to pay little while pretending maximum availability from trainees: limiting costs but maximising output (Nasi, 2021). Sex workers leaving the industry are not exempt from this scenario. This proves that the programmes often result in social and economic insecurity for sex workers who want to abandon the industry and for the victims of trafficking and sexual exploitation, throwing them into the midst of capitalist labour exploitation that persists in many societies. At the root of exploitative and violent dynamics in sex work, therefore, is not sex work but a labourist, capitalist, classist, racist, and patriarchal society, which should be questioned.

The very definition of sex work as sexual acts performed voluntarily, knowingly, and independently in exchange for money or other goods excludes it from sex trafficking  (Freeman, 1989). This is even more relevant when considering that sex workers tend to self-manage their work, and there is generally no involvement of third parties forcing or inducing them to do this work and taking their earnings. It is understood that “those who work independently cannot be victims of human trafficking, because [they] cannot traffic [themselves]” (Anderson, 2023). The Group of Experts on Action against Women and Domestic Violence (GREVIO) itself in its 2021 General Report noted that the Istanbul Convention does not define sex work (prostitution) in itself as a form of violence against women (GREVIO, 2021). Instead, it emphasised states’ obligations to support and protect sex workers from any instances of gender-based violence that they may experience, addressing the distinction between sex work and violence in sex work (GREVIO, 2021). Despite this, however, some legislative approaches to sex work continue to be confusing in this regard.

Legislative approaches to sex work

Currently, legislative models do not offer an inclusive and comprehensive view of what sex work is, mainly referring only to offline work. There are five models corresponding to different ideologies, policies, and consequences. These are referred to as the prohibitionist, abolitionist, Nordic, neo-regulationist and de-criminalistic models. Prohibitionism follows the idea of sex work as immoral and dangerous for society, not only in terms of public safety but also and especially for collective health. It, therefore, criminalises the sale, purchase, and  facilitation of sexual services. This approach is present in most of the United States, as well as in Eastern Europe and  other parts of the globe. However, the effects are devastating for those doing sex work, increasing their social and economic vulnerability, with more instances of abuse and harassment, less negotiating power, and a high risk of stigmatisation and marginalisation. The abolitionist model follows the narrative of the sex worker as a defenceless victim: it legalises sex work (although it does not consider it a job) but provides for some collateral crimes related to the exercise of the profession. Similar to the latter model, the so-called Nordic model adopted by Sweden, Norway, Iceland, and many others prohibits the purchase of sexual services, believing to progressively eliminate sex work by decreasing demand. It is based on the idea that women sex workers are victims of the patriarchy and the men who purchase the service are violators to be punished. Neo-regulationism, on the other hand, is a model implemented by states such as Germany and Netherlands that presumes sex work to be a “necessary evil”. Therefore, sex work is legal, but states intervene more or less massively and violently in the management of the industry, failing to recognise sex work as a job like any other. In fact, despite its name, this model still results in the criminalisation of some sex workers who do not meet the health, hygiene, and room requirements to apply for a licence to work.

All these models assume to protect women from exploitation, but this has the opposite effect, making the working conditions of millions of workers more precarious and vulnerable, which does not actually solve exploitation, because, as discussed in the previous section, sex work is not the cause. Rather, exploitation stems from the economic vulnerability that results from living in a capitalist society (Leonelli, 2023). Moreover, they prove to be anti-feminist approaches as they impose on women sex workers the profile of passive persons unable to make choices about themselves, just as the patriarchy does. 

The model that differs from those previously discussed is that of decriminalisation, which recognises sex work as any other work, protects those who perform it, and continues to criminalise trafficking. It is one of the models that sex workers’ associations are clamouring for; it provides aid and funds for those who no longer want to do sex work, while also facilitating those who wish to stay in the sector. Fundamentally, decriminalisation is aimed at reducing violence against those who trade in sex and improving their conditions, recognising them as primary rights holders (Leonelli, 2023). This is what happens in New Zealand, where the State responded to instances of coercion and exploitation in sex work through the 2003 Prostitution Reform Act, so that sex work is regulated like any other work sector as long as it is carried out voluntarily and between adults, with sex workers being able to determine their working conditions and having participated in the elaboration of the model itself. In response to criticism and protests from anti-prostitution groups that decriminalisation would lead to an increased attractiveness of the sex industry and difficulty in tracking abuses, research published in 2007 funded by the Health Research Council of New Zealand and the Ministry of Justice refutes the criticism. It shows that the Prostitution Reform Act actually had a minimal impact on the number of people working in the sex industry in New Zealand, while it had a significant effect on the health and safety of female workers (Abel, Fitzgerald, & Brunton, 2007). The Global Alliance Against Traffic in Women, in its 2017 annual report, further explained that decriminalisation is not conducive to trafficking, as until 2017, no cases of trafficking in the sex industry had been identified in New Zealand since decriminalisation (Armstrong, 2018). The only critical issue with the law, according to the report, is the exclusion of temporary migrants from engaging in sex work legally, which, therefore, exposes migrant sex workers to a risk of exploitation and trafficking. In this regard, the report has properly spelled out recommendations for the government, anti-trafficking organisations, and other donor organisations.

Conclusion

Despite the tensions between sex work and sex trafficking, they are not completely interchangeable phenomena. Yet laws feed this ambiguity by failing to clarify the boundaries between the two, or even denying them completely. This vagueness applies to the UN Trafficking Protocol as well as to most laws regulating sex work with contrary approaches to the profession. However, through the present article, what emerged was the need to reason about their convergences rather than their confines. In fact, while sex work is a legitimate profession for the ones who want to engage in it, trafficking is one of the many contexts in which exploitation, including sexual exploitation, can take place. Therefore, it is evident that to tackle human trafficking, it is exploitation in the workplace that must be eradicated, not the sex industry.

New Zealand, in this regard, has been a particularly unique and feminist context for exploring anti-trafficking discourse from the perspective of sex workers through the decriminalisation of sex work. It emerges that “the decriminalised status of sex work empowered [sex workers] to fight workplace injustice” and protected most of them against trafficking (Leonelli, 2023). It gave them the right to challenge exploitation by taking control over their working conditions and more faith in the police to denounce abuses, better health conditions, and reduced stigma. 

It is essential that others around the world also join the decriminalisation of sex work to promote a culture that is truly feminist in respecting the freedom and self-determination of all subjectivities. “Liberating the sex industry from the chains of exploitation [derived from anti-prostitution policies] means liberating some of the most marginalised people in society, which can, in turn, provide a model for the liberation of others” (Leonelli, 2023). 

Bibliography

Abel G., Fitzgerald L. & Brunton C. (2007). The Impact of the Prostitution Reform Act on the Health and Safety Practices of Sex Workers. University of Otago. 

Anderson L. S. (2023). Let’s talk about sex (work): the irony of partial decriminalization of sex work. University of Pennsylvania Journal of Law and Social Change, 26(1), pp. 37-72.

Armstrong L. (2018). Sex Workers Organising for Change: Self-representation, community mobilisation, and working Conditions. New Zealand. Global Alliance Against Traffic in Women. 

Freeman J. (1989). The feminist debate over prostitution reform: Prostitutes’ rights groups, radical feminists, and the (im)possibility of consent. Berkeley Women’s Law Journal, 5(1), pp. 75-109.

Gerassi L. (2015). A Heated Debate: Theoretical Perspectives on Sexual Exploitation and Sex Work. The Journal of Sociology & Social Welfare, 42(4), pp. 79-100.

GREVIO (2021). Second General Report on GREVIO’s Activities.

<https://rm.coe.int/grevio-s-second-activity-report-2021/1680a2165c> 

Jones M. (2023). The international legalization of sex-work: protecting sex-workers from abuse and exploitation through increased regulation and decreased stigmatization. Michigan State International Law Review, 31(1), pp. 1-36.

Kovach M. A. (2022). Let’s talk about voluntary sex work, baby: how u.s. policy on sex work violates international legal norms. University of Toledo Law Review, 53(2), pp. 315-350.

Le Bail H., Giametta C. & Rassouw N. (2019). What do sex workers think about the French Prostitution Axt?. Médicins du Monde.

<https://sciencespo.hal.science/hal-02115877/document> 

Leonelli A. (2023). Business doing pleasure: combating sex trafficking by decriminalising sex work. Journal of Civil Rights and Economic Development, 36(3), pp. 403-444.

Nasi F. (2021). L’Italia è una repubblica fondata sugli stagisti e che nega ai giovani il diritto a un futuro. The Vision. Consulted on October 2nd, 2024, from 

<https://thevision.com/attualita/giovani-stagisti-lavoro/> 

Ramos G. (2023). Sex Work is Real Work: Why Decriminalizing Protects Every Body. Tulane Journal of Law and Sexuality: Review of Sexual Orientation and Gender Identity in the Law, 32, pp. 221-244.

Stefani G. (2013). La tratta di donne a fini di sfruttamento sessuale: strumenti di contrasto e possibilità di intervento [Doctoral dissertation, University of Bologna]. Amsdottorato Unibo. 

<https://amsdottorato.unibo.it/5357/1/stefani_giorgia_tesi.pdf> 

Zollino G. [@giuliazollino]. (2020). Che cos’è la tratta? Come viene strumentalizzata per attuare politiche razziste e antiprostituzione? [Instagram direct]. Instagram. Consulted on August 2nd, 2024, from 

<https://www.instagram.com/p/CBRGVWPF3ly/>