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

abusive of women 27 and a human rights violation 28 —it is an inherently “degraded
exchange.” 29 They reject it as a legitimate form of labor, instead seeking its eradication
and prohibition. According to philosopher Carol Pateman, “When women’s bodies are
on sale as commodities in the capitalist market, the terms of the original contract cannot
be forgotten; the law of male sex-right is publicly affirmed, and men gain public
acknowledgment as women’s sexual masters – that is what is wrong with prostitution.” 30
Catharine MacKinnon has a similar formulation, “Women are prostituted precisely in
order to be degraded and subjected to cruel and brutal treatment without human limits; it
is the opportunity to do this that is exchanged when women are bought and sold for
sex.” 31 Kathleen Barry puts it perhaps most strongly: “The sex men buy in prostitution is
the same sex that they take in rape—sex that is disembodied, enacted on the bodies of
women who, for the men, do not exist as human beings.” Legal philosopher Margaret
Radin makes a different point, that commodified sex cannot exist with our aspirations for
its decommodified form. 32 These insightful and influential feminists conclude that the
27 She continues, “Men decide whether it is sex they pay for, or sex they take by force or with consent.”
KATHLEEN BARRY, THE PROSTITUTION OF SEXUALITY 37 (1995) [hereinafter THE PROSTITUTION OF
SEXUALITY]. Elsewhere, Barry says:
This misogyny, the use of prostitutes to act out one’s contempt for the lower and degraded sex, is
the single most powerful reason why prostitution has always been considered a cultural
universal—the oldest profession, the indestructible institution, the necessary social service. It
intersects with the domination of women at all levels of society.
KATHLEEN BARRY, FEMALE SEXUAL SLAVERY 137 (1984). [apparently Barry’s position changed over
time; please incorporate that into this footnote].
28 “The abolitionist position treats all prostitution as a problem of human rights, to be condemned
uncompromisingly, like slavery, and never to be equated with acceptable practices like work, or with
legitimating ideas like consent and contract.” Larson, supra note [x], at 680.
29 Bernstein, supra note [x], at 109.
30 CAROLE PATEMAN, THE SEXUAL CONTRACT 208 (1988). Elsewhere, Pateman elaborates that
“Prostitution is the use of a woman’s body by a man for his own satisfaction. There is no desire or
satisfaction on the part of the prostitute. Prostitution is not a mutual, pleasurable exchange of the use of
bodies, but the unilateral use of a woman’s body by a man in exchange for money.” Id. at 198. In
Pateman’s view, such “sexual contracts” “both established orderly access to women and a division of
labour in which women are subordinate to men.” Id. at 119. See also Laurie Shrage, Should Feminists
Oppose Prostitution?, 99 ETHICS 347 (1989) (“most feminists find the prostitute’s work morally and
politically objectionable. In their view women who provide sexual services for a fee submit to sexual
domination by men, and suffer degradation by being treated as sexual commodities.”).
31 Catharine A. MacKinnon, Prostitution and Civil Rights, 1 MICH. J. GENDER & L. 13, 13 (1993). See also
CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 168 (1991) (“Because the stigma
of prostitution is the stigma of sexuality is the stigma of the female gender, prostitution may be legal or
illegal, but so long as women are unequal to men and that inequality is sexualized, women will be bought
and sold as prostitutes, and law will do nothing about it.”); WOMEN’S LIVES, MEN’S LAWS, supra note [x],
at 159 (“Perhaps when women in prostitution sustain the abuse of thousands of men for economic survival
for twenty years, this will, at some point, come to be understood as nonconsensual as well.”); Andrea
Dworkin, Prostitution and Male Supremacy (1992) (rejecting prostitution as male dominance). [check
MacKinnon (1983)];
32 MARGARET JANE RADIN, CONTESTED COMMODITIES ([add a good quotation for the parenthetical]).
Contrasting prostitution with other forms of disputed commodification Radin says:
The risks of a black market in body parts are slim because the buyer must use a regulated
professional and health care facility to get the part installed. Similarly, even though baby sales are
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