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

Alternatively, sex work could be regulated primarily under state law. State
regulatory schemes take different forms. [fill in other ways for states to assert
regulation? State osha’s?] Another option are state-based licensing schemes. Licenses
[fill in definition] Requiring a license to perform sex work might be the least intrusive
form of state regulation and yet the most comprehensive. A license can be required of
commercial establishments and sole proprietors alike. Licensing can establish highly
specific standards of a variety of behaviors, conduct, and interactions. State-issued
licenses govern professions as diverse as lawyers, doctors, realtors, sale of liquor, hair
dressers, caterers, and interior decorators. Licensing takes different forms. In markets
involving the provision of services a standard component is to require some standardized
training and a proficiency test, such as the bar exam. We could envision that sex worker
training would include at the most basic level safe-sex practices, ensuring their own
safety, ethics, hygiene, and perhaps instruction in counseling. 301
Licensing may also have a secondary, collateral effect on sex work—legitimizing
it. As suggested earlier, some sex professionals urge that their work is akin to that of
professional therapists. Sex work is a profession with a high quotient of human need
fulfillment, and sex workers are the last stage in the delivery of that fulfillment. 302 “As
sex workers have themselves suggested, one goal would be for prostitution to become a
kind of sex therapy, professionalized and no longer stigmatized.” 303 These sentiments
envision the legalization of sex work not only legitimizing sex work, but actually
unmasking it for the high-status work it is. 304
Finally, the licensing option answers sex exceptionalists’ insistence that sex work
should be a litigation-free zone. 305 Contrary to the libertarian impulses, private contracts
are not exempt from scrutiny and regulation. 306 Currently, 23% of American workers
require licenses to do their jobs. More than 1,100 professions require licenses, including
florists, manicurists, shampoo specialists, interior designers, and of course, doctors and
lawyers. 307 It would seem quite odd that a state would require a license to wash hair or
arrange flowers, but that those engaged in sexual acts with the potential exchange of body
fluids, not to mention the risk of violence, should be exempt. In fact, requiring licenses
301 Ethics of therapists and social workers might be particularly useful in their emphasis on…/The ethical
component is an intriguing one. Other professions provide model ethical codes, including social workers
and therapists. Both of these professions enjoin their practitioners to follow three norms: the client, the
relationship, and self-care. The combination of the three can result in recommendations/mandates to limit
the number of hours/clients, [fill in others]. [work on this footnote].
302 [add the quote on the most successful prostitutes are those who can connect with their clients and their
needs]
303 Chancer, supra note [x], at 161. In fact, [Firefly and categories of sex worker that feature in science
fiction]. [compare sex surrogates]
*Companion: trained at a monastic institute; take applications from customers; they are high status, and
exotic, as exemplified by being cast as Indian (not black!); licensed
*hustler: had companion training but used it to become a con woman
*broken off from companion ship to open independent brothel; vulnerable and victimized but independent]
304 [compare sex surrogates; Susan Stiritz]
305 Emens, supra note [x], at [add pincite].
306 Non-exceptionalism example of private contract to mine coal and a private contract for sex work: state
might fairly regulate them both because of “risk.”
307 Wall Street Journal (cited in The Week, Feb. 18, 2011).
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