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

injuries and harms of commodified sex warrant its continued criminalization, and many
contend the state does not do enough to eradicate it. 33 Indeed, for some, ending
prostitution is the “new abolition.” 34 In sum, opposition to sex markets has a long and
rich feminist pedigree. 35
On the other side, different strains of feminist thought argue the legitimacy of
professional sex. Some do so from a pro-sex perspective, arguing that [add quote]. 36
Relatedly, some contend that decriminalized sex exchanges have the potential to subvert
patriarchy, challenging the social mechanisms by which some women are socially slotted
and raised to be “good girls.” In this conceptualization, commodified sex becomes a
“category of radical sexual identity.” 37 Others argue that all women bargain for sex, an
argument that dates back to nineteenth-century critiques of the dichotomy between
marriage and prostitution as a false one. 38 [add quote from Gayle Rubin 39 ] In this view,
routinely arranged in the grey market, parental rights can only be established in court. By
contrast, prohibitions against commercial sex are notoriously difficult to enforce.
Radin, [add cite], at 537 (footnote omitted). Margaret Jane Radin [add cite] (characterizing prostitution as
double bind where both commodification and non-commodication can be harmful). See also ELIZABETH
ANDERSON, VALUE IN ETHICS AND ECONOMICS (1993) (commodified sex has negative influences on
gratuitous sex); Elizabeth Anderson, Is Women’s Labor a Commodity?, 19 PHIL. & PUB. AFF. 71 (1990).
33 See also Bernstein, supra note [x], at 93 (“Radical feminists usually have argued that legalization is the
state’s official endorsement and the ultimate patriarchal expression of ‘the traffic in women.’”); Mgbako &
Smith, supra note [x], at 1178 (“The antiprostitution feminist camp characterizes prostitution as an
exploitative institution of patriarchy, a form of sexual slavery and violence against women, and therefore a
violation of women's rights.”).
34 [work on this footnote: Add footnote on abolition, trafficking, slavery as intentional metaphor.] See
supra note [x] [distinguishing procurement, delivery, punishment of consumer]
35 In addition to MacKinnon, Pateman, and Barry, see also Mary Ann Becker, A Review of The Prostitution
of Sexuality: The Global Exploitation of Women (reviewing Kathleen Barry), 52 DEPAUL L. REV.
1043, 1044-45 (2003) (“ while pornographic media are the means of sexually saturating society, while rape
is paradigmatic of sexual exploitation, prostitution, with or without a woman's consent, is the institutional,
economic, and sexual model for women’s oppression.”);
36 [add cite]; see also Mary Joe Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft), 105
HARV. L. REV. 1045, 1059 (1992) (“The arguments that sex workers are making to assimilate their work
into the wage market appeal to a sexualized femininity that is something other than a choice between
criminalized and maternalized sex or a choice between terrorized and maternalized sex.”).
37 Bernstein, supra note [x], at 112. For instance, COYOTE claims that open markets for sex subvert
gender roles, in which some women are socially slotted and raised to be “good girls.” On the other hand,
“there is nothing transgressive about one who has been socially born and raised to be a ‘bad girl’ and
remaining one.” Id. at 112.
38 This argument has a long pedigree, dating back to nineteenth-century gender activists. See, e.g., [add
cites]; PATEMAN, supra note [x], at 123 (“The husband’s conjugal right is the clearest example of the way
in which the modern origin of political right as sex-right is translated through the marriage contract into the
right of every member of the fraternity in daily life.”); Prabha Kotiswaran, Wives and Whores: Prospects
for a Feminist Theory of Redistribution, in SEXUALITY AND THE LAW: FEMINIST ENGAGEMENTS (Carl F.
Stychin & Vanessa E. Munro eds.,).
39 Gayle Rubin, The Traffic in Women [add full citation]. More subtly, Martha Nussbaum observes that
“most cultures contain a continuum of relations between women and men (or between same-sex pairs) that
have a commercial aspect—ranging from the admitted case of prostitution to cases of marriage for money,
going on an expensive date where it is evident that sexual favors are expected at the other end, and so
forth.” Nussbaum, supra note [x], at 700. But see Nancy Fraser, Beyond the Master/Subject Model:
Reflections on Carole Pateman’s Sexual Contract, 37 SOCIAL TEXT 173, 176 (1991) (“Whereas the
marriage contract involves the withdrawal of major aspects of social reproduction from the cash nexus,
wage labor, prostitution, and ‘surrogacy’ are precisely market transactions.”).
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