1 Regulating Sex Work Adrienne D. Davis VERY ROUGH DRAFT ...

oundaries are illegal.” 66 The International Prostitute Rights organization is more
specific: “There should be no law which implies systematic zoning of prostitution.
Prostitutes should have the freedom to choose their place of work and residence.” 67
Feminist theorist Anne McClintock concurs: “A central tenet of the prostitution
movement is the demand that sex workers be given the right to exchange sexual services
on their terms and on their conditions, not on the terms of the state, the police, pimps,
male managers, or clients.” 68 Of course, such insistence on complete workplace
autonomy is unrecognizable to most working adults. But, for decriminalization
advocates, this strong libertarian position is justified because of the nature of the “work.”
Implicit in these strong-form claims for a completely deregulated sex market is
the privacy ideology liberalism often associates with sex. Although much-criticized, the
legal protection for women’s sexual autonomy that emerged in the 1960s and 1970s was
grounded in constitutional privacy doctrine. 69 Cultural and social norms of sex as part of
private and not public life supported this, as well. 70 Liberalism similarly promotes
autonomy, freedom, and choice within this sphere, construing these as the definitive
principles that guarantee sexual and reproductive rights. 71 The final piece of the
liberalism troika, consent, plays a similarly fundamental role in constructing sexual rights
and their boundaries. 72 From this ideology some advocates derive a strong, intriguingly
66 Leigh, supra note [x], at 60.
67 http://www.bayswan.org/ICPRChart.html. They also oppose public health regulations of sex work.
“Since health checks have historically been used to control and stigmatize prostitutes, and since adult
prostitutes are generally even more aware of sexual health than others, mandatory checks for prostitutes are
unacceptable unless they are mandatory for all sexually active people.” World Charter 184.
68 Anne McClintock, 37 SOC. TEXT (1993)], 2 (emphasis in original). McClintock also claims, “Removing
sex workers fundamental right to choose—whether to work, how to work, when to work and where to work
is a flagrant infringement of basic working rights, their integrity, their humanity, not a universal and
inherent feature of the sexual exchange.” Id. at 6.
69
70
[Add cites including Olsen and MacKinnon critiques of this.] [add a sentence on how markets usually
public while sex private]
71
[add more citations on sexual autonomy and con law] See, e.g., Nussbaum, supra note [x], at 706
(arguing “the issue of choice is the really important one”). [move: Not surprisingly, many have urged that
the dominance of choice arguments in the feminist defense of abortion and the rejection of choice in
prostitution is nothing short of hypocrisy. See, e.g., Almodovar, supra note [x], at 122 (footnote omitted);
Cynthia Chandler, Feminists as Collaborators and Prostitutes as Autobiographers: De-Constructing an
Inclusive Yet Political Feminist Jurisprudence, 10 HASTINGS WOMEN’S L.J. 135, 136 (1999) (urging
feminist theory should shift focus from “either women’s liberty and choices or the dominating constraints
on women’s lives, to looking at the intersection of both agency and domination on their lives”) (“Many
feminists champion a woman’s right to choose—as long as it is abortion that is being discussed.”).]
72
[integrate with consent footnote above???] [another example of a consent based norm is why workers
should be able to practice whites only, men only sexual work] [David Law point: is erotic capital more
generally monetizable??? As in family court decisions where they monetize a degree, even if the person is
not using it: here, you could be earning x amount based on your erotic capital!] Sylvia Law uses consent to
impose some interesting limits on the professional sex as labor position. While interviewing welfare rights
organizers in Nevada, Law learned that some of them feared that if sex work were fully legalized, the
government would require it as a condition of receiving need-based entitlement programs. Law grounded
an exemption of sex work from universal requirements to labor in liberalism:
A society could address this paradigm conflict by saying that the norm of authentic consent,
generally applicable to sexual relations, should control and that people should not be forced to
engage in commercial sex, as a condition of subsistence. Even if commercial sex is legal, many
women regard it as inconsistent with their deepest sense of self and inconsistent with moral and
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