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

Elizabeth Emens has called a “litigation-free zone.” 22 Reproduction is currently in a gray
area of regulation and commodification, with increased technological capacities
generating much debate over the legitimacy of such markets and their regulation. 23 The
last of the troika, professional sex, is the subject of this paper and has been particularly
contentious. Sex markets are diverse, and so is their treatment by the state. Purchase of
actual sex is currently criminalized, but filming and distribution of sex acts
(pornography), erotic performances which may include sexual acts performed on
customers, e.g., lapdances, erotic massages, and sexual interactions that do not involve
touching (e.g., internet and phone sex) are all legal [check on any limits imposed on new
media sex?]. 24 While sex markets are diverse, the stigma and moralism associated with
them is not. Neither commodified reproduction nor commodified care entail the social
reprobation commodified sex does. 25
A. The Debate over Professional Sex: A Primer
Interestingly, many self-identified feminists join conservatives in opposing legal
markets for sex. While conservatives typically condemn professional sex in moral terms,
feminists do so in a different register. 26 Many feminists characterize commodified sex as
22 Emens, Intimate Discrimination, supra note [x], at 1311[do other people make such a distinction?
Maybe early Critical Legal Studies?] [explain answers the cls/Foucault critique that law is always
operative] Care markets are socially acceptable in some large part because “[a]t the political level, live-in
caregivers are widely understood to perform the socially necessary (if devalued) task of child-care. Their
employers are typically middle- or upper-class professionals, a powerful constituency. In contrast, the
labor performed by exotic dancers is alternately viewed as demeaning to women and/or immoral; their
employers and customers lack the respectability and the clout of affluent professional parents.” Macklin,
supra note [x], at 182-183. This means that commodified care work is both socially acceptable and largely
unregulated. See, e.g., MARY ROMERO, MAID IN THE U.S.A. (1992); [add other Romero cites]; Peggie
Smith [add cites]; [add others].
23 For example, contrast Michigan, where statutes prohibit enforcement of surrogacy contracts and
parenthood defaults to the birth mother [or best interests standard?] with California where both the
judiciary and legislature provide mechanisms to enforce such agreements. [add cites]. For discussion of
the legitimacy of surrogacy agreements, see for example [cite Marjorie M. Shultz, add other cites].
24 “Currently, prostitution is legal and regulated in countries such as Austria, Germany, Greece, the
Netherlands, Switzerland, and Turkey.” Chi Mgbako & Laura A. Smith, Sex Work and Human Rights in
Africa, 33 FORDHAM INT’L L.J. 1178 (2010). [sale, purchase, and procurement; partial decriminalization]
Other countries distinguish between procurement and delivery and articulating a separate state interest in
regulating procurement methods.
Carmen & Moody [Even in the two jurisdiction where it is legal, aspects are policed by criminal law:
Nevada rental rules, etc are criminal I think] [Contra criminalizing johns: “Why, [prostitutes] ask, should
men be punished for paying them, but not punished for raping or robbing them?” Sex Workers and Sex
Work, supra note [x], at 3.]
25 This is not to say that people do not moralize about these activities—they do. There is often an
expectation that women will render these activities selflessly, that is for free. See, e.g., McClintock, supra
note [x], at 1 (noting not only does “[s]ociety demonize[] sex workers because they demand more money
than women should, for services men expect for free.” but even “Shopping for others is work a woman
generally does for free, and constitutes, as such, the hallmark of gender normality.”) [add cites on the
altruism debate; does Zelizer fit here on The Purchase of Intimacy?]; see also Nussbaum, supra note [x]
(using other forms of labor to question anti-commodification stances towards prostitution.).
26 [moral reform background]
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