Gender-Based Violence & Human Rights in Prostitution

Y3696903 Gender,Violence &Justice
1
Is violence intrinsic to sex work/prostitution or primarily a by product of the way it is
regulated?
 In this essay, I will use the Universal Declaration of Human Rights to examine
how the structures of abolition, decriminalisation and legalisation of prostitution
can contribute to, or reduce violence against prostitutes. Then I will use Article 5
‘No one shall be subjected to... inhuman or degrading treatment...’ to examine
whether violence is intrinsic to prostitution, if the way it is regulated maintains the
individual’s other human rights.
For the purposes of this essay, I am going to define violence according to the United
Nations Report of the Fourth World Conference on Women, Beijing, (1995) as
follows; ‘The term "violence against women" means any act of gender-based
violence that results in, or is likely to result in, physical, sexual or psychological harm
or suffering to women, including threats of such acts, coercion or arbitrary
deprivation of liberty, whether occurring in public or private life’ (p48.) I have chosen
this definition because prostitution is a gendered phenomenon, as the majority of
prostitutes are women and the majority of customers are men (Jackson, 1996)
Therefore, the violence experienced by prostitutes at the hands of customers, pimps
and the police (Alexander, 1996, Hoigard, 1996, Mei-Hua, 2008) can be seen as
primarily violence against women. The social stigma against female prostitutes can
also be said to be based upon the sexist double standard held against women,
known as the Madonna/whore dichotomy (Alexander, 1996) making at least part of
the cause of violence gender based, rather than simply circumstantially correlated
with gender. Prostitutes often suffer from the culture of victim blaming, whereby
simply being a prostitute can be seen as justifying violence enacted upon them
(Alexander, 1996) The violence that prostitutes report having experienced also fits
within this definition, as the harm they describe spans across the physical, sexual
and psychological. (Alexander, 1996, Hoigard, 1996) Violence against women can
also be framed within the abuses of the human rights that women may suffer as a
result of the legislation around prostitution, which will be explored in relation to the
Universal Declaration of Human Rights

2
Prostitution can be said to be a divisive issue for feminists on the grounds of whether
it would be better for women if it was abolished, decriminalised or legalised.
(Alexander, 1996) The basis of this divide steams from the difference of beliefs as to
whether prostitution is just another form of paid work (the ‘sex work’ position) or
whether it is intrinsically harmful to women (O'Connell Davidson, 2002.) Defenders of
the sex work position argue that it is the way that prostitutes are stigmatized and
socially excluded from society (O'Connell Davidson, 2002, Alexander, 1996,
Jackson, 1996) is how they are harmed, and this could be rectified through changing
attitudes and labour laws (Alexander, 1996.)The abolitionist perspective is that
prostitution reinforces patriarchy through the objectification of women as reduced to
their bodies for the purposes of fulfilling the hydraulic model of male sexual need.
(Jackson, 1996, Dworkin, 1996)
This debate can be analysed using the Universal Declaration of Human Rights (UN
1948), as a key part of the argument around prostitution is that prostitutes are not
afforded the same human rights as other people (O'Connell Davidson, 2002,
Ditmore, 2008) which can be seen as violence against them. It is also a useful tool to
analyse feminist debates around prostitution because the different rights set out
cover a range of feminist issues around prostitution. Articles 23 and 24 are specific
to employment rights, 9 and 12 deal with the treatment of people by the police and
society, 13, 25, and 26 can be used to analyse opportunities that are available to
people and contextualise choice, and 3 and 5 can be used to look at whether
violence is intrinsic to prostitution. Because of this, even if some feminists argued
that the rights set out here are not sufficient to ensure equal treatment of prostitutes,
the fulfilment of the rights would still be necessary to ensuring prostitutes received
equal treatment, their human rights are upheld, and the violence they experience in
the form of human rights abuses no longer occurs.
Article 23 provides the most comprehensive outline of employment rights as human
rights, stating;
‘(1) Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.

3
(2) Everyone, without any discrimination, has the right to equal pay for equal
work.
(3) Everyone who works has the right to just and favourable remuneration
ensuring for himself and his family an existence worthy of human dignity, and
supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his
interests.’ (UN 1948)
‘Sex work’ feminists would argue that the criminalisation of prostitution is an
abuse of their human rights as they are not able to exercise ‘the right to work, to
free choice of employment...’ (UN, 1948) The criminalisation of prostitution also
means prostitutes do not have equal access to ‘just and favourable conditions of
work and to protection against unemployment... equal pay for equal work... just
and favourable remuneration... (or to) form and to join trade unions’ (UN, 1948)
because these things are provided by the governments of states and nations for
those who are employed. Similarly, prostitutes do not have their rights to
‘ reasonable limitation of working hours and periodic holidays with pay’ (Article 24
UN, 1948) protected because they are outside the legal system of employment.
 However, the right to free choice of employment may not mean that feminists
should support the ‘sex work’ perspective. Research shows that many prostitutes
are living within very constrained circumstances which limit their ability to make a
free choice greatly. Often prostitution is chosen for economic gain (O'Connell
Davidson, 2002, Ying, 2008) sometimes within fewer hours than other kinds of
work (Ditmore, 2008) but ‘women’s involvement in sex work is directly related to
their lack of economic opportunities elsewhere’ (Jackson & Scott, 1996, pg 20)
Therefore it could be argued that the fulfilment of the right to free choice of
employment would be better served by increasing the economic opportunities
available to women, instead of legalising prostitution. (Hyun, 2008) Another way
to ensure prostitutes were using their free choice would be to fulfil the right to
equal pay for equal work. If women were able to procure work that paid them the
same amount per hour as they received as a prostitute, then they would be better
able to freely choose the work they undertake. It could also be argued that there

4
is a similar issue within women’s labour as a whole, in that women do not receive
equal pay when compared to men for doing the same job. (Miss Representation,
2014) Also, the types of work women and men undertake are gendered, with
more women in the care and service sector, where the pay is significantly less
than the science, technology and business sector, which is mostly made up of
men. Sex work feminists may argue that it is more important to legalise sex work
and fight for equal pay for equal work according to the level of skill required for
the job. However, feminists who argue for the decriminalisation of prostitution as
opposed to its legalisation may say that the stigma associated with prostitution
would mean that the way it would be legalised would further abuse prostitutes’
human rights. (Alexander, 1996) For example, some places where prostitution is
legal impose restrictions on prostitutes in terms of their movement, (Alexander,
1996) which contradicts Article 13 ‘Everyone has the right to freedom of
movement and residence within the borders of each state.’ Prostitutes are also in
danger of raids by the police because of the stigma of prostitution being linked
with criminal activity in terms of drug use and money laundering by criminal
gangs. (Alexander, 1996) This means that prostitutes are in danger of human
rights abuses against Article 9 ‘No one shall be subjected to arbitrary arrest,
detention or exile.’ And Article 12 ‘No one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor to attacks
upon his honour and reputation. Everyone has the right to the protection of the
law against such interference or attacks.’ Ironically, it can be argued that it was
the criminalization of prostitution that initially lead to the links with criminal gangs,
and moved the balance of power from female-controlled brothels to male-
controlled pimping. (Walkowitz, 1996) This means that legalisation of prostitution
would not be enough to guarantee the fulfilment of prostitutes human rights, the
way that prostitution is stigmatized would have to be broken down to ensure that
abuses against Articles 13 and 12 would not occur. The decriminalisation of
prostitution would be problematic in a similar manner however, as without
legalisation, prostitutes would not be entitled to the employment rights set out in
Articles 23 and 24.

 Leaving an abusive relationship may leave a woman with few options to sustain
herself, particularly if she is married, if divorce is difficult to obtain, and married

5
women are not seen as employable in her culture. (Ding Yu & Ho Sik-Ying 2008)
Trans women are one of the most discriminated against groups of people across
the world in terms of employment, which may lead to prostitution as one of the
only ways of earning money available to them. (Thurkal and Ditmore 2003;
Thurkal et al 2005; Jenkins et al 2005 in Ditmore 2008) Various forms of racism
within different cultures may lead to barriers to legal forms of employment, or
unjustified loss of employment. An unwillingness on the part of the employer to
alter the intellectual or physical requirements of work, or physical spaces may
lead to loss of employment opportunities or the dismissal of women with
disabilities. Hostility towards members of the LGBTQ community or
criminalisation of the LGBTQ community may also lead to reduced employment
opportunities or loss of work. Similarly, a hostile atmosphere or harassment in the
workplace may leave women feeling they have no choice but to leave their
employment, and they may become prostitutes as a result of this.

 Lack of free choice of employment may also be linked to abuses of Article 26,
stated as ‘...the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available and
higher education shall be equally accessible to all on the basis of merit.’ (UN
1948) Women and girls may be discriminated against in a range of ways, many
from a lack of provision ranging from none whatsoever to limited provisons, for
example beyond primary or secondary education. (UNICEF, 2014)They may
receive threats or acts of physical, sexual or psychological violence if they try to
use the provisions available. (Yousafzai, 2014, UNICEF, 2014)They may be
unable to make use of provision for economic or health reasons. They may also
be actively or subtly discouraged from particular types of education based on
gendered notions of what is appropriate, achievable or desirable for women to
learn. It may be argued that the higher the level of education a person achieves,
the more economic opportunities would be available to them, as it increases the
levels of jobs they would be eligible to apply for. (UNICEF, 2014) Therefore, if the
fundamental human right to education was fulfilled, women who were prostitutes
would be more likely to be women who used their free choice to become
prostitutes over and above any other profession available to them.

6
 Further constraints on free choice of employment may be the lack of employment
opportunities in a specific geographical area that women are living in. Many
prostitutes migrate internally or to other countries for the purposes of increased
employment opportunities, a perception of better working conditions or increased
earning potential. (Jacobs, et al., 2000) Their right to do this is covered by Article
13 ‘Everyone has the right to freedom of movement and residence within the
borders of each state... Everyone has the right to leave any country, including his
own, and to return to his country.’ Prostitutes can suffer from the abuse of this
right as it is illegal to work as a prostitute in many areas of the world. This may
lead to prostitutes attempting to migrate to an area, state or country where it is
legal. Due to variations of immigration laws, prostitutes may then face arrest,
detention or deportation. (Alexander, 1996) They may also be victims of violence
from people who try to traffic them into a different country illegally, and may end
up working for criminal gangs or pimps as a result of being trafficked. This may
also lead to an abuse of Article 25 ‘the right to a standard of living adequate for
the health and well-being of himself...’ Often the circumstances prostitutes find
themselves in are no better, or are worse than the ones they left behind. They
may suffer as a result of legislation on where they are able to work; some places
have red light districts or toleration zones where prostitutes are able to work, but
they are often isolated, making prostitutes vulnerable to experiencing
psychological, sexual or physical violence. (Alexander, 1996) Prostitution also
has strong links with conflict because of the historical and current use of
prostitutes by members of the armed forces. This may be at bases either within
countries where conflict is occurring or within peaceful countries nearby where
soldiers travel to for rest and re-cooperation. If prostitutes travel to these areas
for employment, they may be at risk of being harmed by the conflict occurring
around them. They are also at risk of being left destitute once the soldiers move
on, to police raids in these areas, or to abuse at the hands of the servicemen who
use their services. (Jacobs, et al., 2000) One of the human rights abuses which
occur within systems of criminalisation, decriminalisation and legalisation is an
abuse of Article 7 ‘All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal protection
against any discrimination in violation of this Declaration and against any

7
incitement to such discrimination.’ (UN 1948) Because of the stigmatization of
prostitution almost universally, violence against prostitutes is not usually treated
as of the same level of abuse as violence against non-prostitutes. Victim blaming
is prevalent, and prostitutes may also experience violence at the hands of police
because of what they do. (Alexander, 1996) This may also be made worse by
other prejudices such as racism or being anti-LGBTQ.
I have attempted to argue that there are many issues to do with violence as
framed by human rights abuses within current legislation around prostitution,
whether it is criminalised, decriminalised or legalised. The only way I can see that
all a prostitutes human rights as a worker would be upheld would be if it was
legalised as a form of employment equal to any other form of employment, as sex
work feminists argue. However, it would also have to be within a society where
there was equal access to education, social security, other forms of work and with
equal pay according to skills, through the developed and the ‘developing’ world.
Fundamentally the stigma around prostitution would have to disappear, prostitutes
would have to be treated with respect and dignity, and prejudices around ethnicity,
disability, gender and sexuality would have to be eradicated. It’s a reality that is a
long way off from the world we currently live in.

 Now I shall move on the one of the most contentious issues for feminists;
whether prostitution is intrinsically violent. To discuss this, I will be referring to
Article 5 ‘No one shall be subjected to... inhuman or degrading treatment...’ It’s
well documented that prostitutes are at an increased risk of ‘violence against
women’ from the police, customers and third party participants such as pimps
(Alexander, 1996) which is a form of human rights abuse against Article 5. But
that is not the same as violence being intrinsic to prostitution. Abolitionist
feminists would argue that violence is intrinsic to prostitution because it upholds
patriarchy – the system which inherently harms all women by denying them the
opportunities, rights and freedoms that are afforded to men, simply because of
their gender. (Jackson, S and Scott, S, 1996) This means that even if all of the
other human rights previously discussed were fulfilled, prostitution would still be
an abuse of Article 5, as patriarchy is a form of violence against women.
However, other feminists argue that this denies agency on the part of the

8
individual woman, (Chapkis, 1997) and that if she doesn’t feel that violence is
being done to her, she doesn’t feel she is being ‘subjected to... inhuman or
degrading treatment’, then she should have the right to choose to be a prostitute.
If she is not, then it could be argued that her right to ‘free choice of employment’
(Article 23) is being abused.
A part of this argument is the issue of objectification in relation to the female body.
Some abolitionist feminists argue that prostitution is inherently objectifying,
because a woman’s body is being used to fulfil perceived male sexual needs.
(Jackson, S and Scott S, 1996) Another issue to do with selling sex is the
difference of opinion as to what sex symbolises culturally. Some believe that sex is
special in some way, and that it symbolises love between individuals, and object to
prostitution on the grounds that love is something which should not be
commodified. Others argue that sex within a loving relationship is already a
commodity, that women may trade sex for some form of economic support;
historically as a part of conjugal rights. (Strong, E in Jackson S, Scott, S 1996.)
However that is making the assumption that sex is inherently a commodity. Sex
can be used as a commodity, but if the individuals involved both want to have sex
purely for the pleasure they gain from sex, then it is not commodified in this way.
Some argue that sex is not ‘special’ and can be seen as on a par with other
services that are provided. (Chapkis, 1997) A problem identified with this approach
is that male sexual need is not the same as other needs, as men can fulfil their
sexual need through masturbation, so they do not require a prostitute to fulfil it.
Another perspective is arguments about the commodification of the female body.
O’Connell Davidson (2014) argues that feminists need to look at the issue of the
commodification of the female prostitutes body within the context of liberal thought
around the perceived differences between slavery, wage labour and prostitution.
Liberal thought may argue that the difference between slavery and wage labour is
that a slave is being reduced to their bodies, whereas a wage labourer can sell
their labour as something separate from themselves as a person. Some argue that
prostitution is a form of wage labour, with the selling of sex as separate from
themselves. Some argue that prostitution is a form of slavery, with prostitutes
trading themselves as an embodied being for what they need to survive. O’Connell

9
Davidson (2014) argues that as embodied beings, a wage labourer may be said to
be selling themselves in the same way as some argue that a prostitute is. Drawing
parallels between these can be used as an argument for people who are opposed
to the increasing commodification of every part of our being.
However, it may be argued that this also fails to take into account the agency of
individual women. It may be argued that there is a difference between slavery as
an individual living within circumstances completely beyond their control who is
forced to work, and an individual woman who has a limited choice over what work
she can get. It might be more helpful to stop thinking about slavery and wage
labour as a binary, and start thinking about a scale of choice, with slavery at one
end, and free and equal choice at the other. The argument around slavery or
choice has particular implications for black prostitutes because of the historical use
of black women’s bodies by white men for physical and sexual slavery. bell hooks
(1996) argues that the historical rape of black women within the institution of
slavery informs the stereotypes about black womanhood that persist today. One of
these stereotypes is the idea of black women as sexually deviant and
hypersexualised (Hill Colllins, 1996.) It could be argued that the racism and
stereotyping that is still pervasive in our society about black women limits their
choice of employment so that black prostitutes are still living under institutionalised
constrains their free choice. Similar to the argument about all women living under
the constraints of patriarchy, all black women are living under the constraints of
racism, and prostitution is upholding the racist beliefs that black women are
objects whose purpose is to serve white men’s sexual needs. (Hill Colllins, 1996)
Furthermore, it could be argued that this intersection of privileges and
disadvantages would also need to take into consideration disability, age,
education, class and sexuality as factors affecting an individual’s level of free
choice. The extent to which these factors effect this choice also vary widely
depending on where they live in the world, as prejudices against types of
disadvantage vary dependent on context. It could be argued that the upholding of
any systematic disadvantages and privileges is an abuse of Article 5 as upholding
a system of ‘inhuman or degrading treatment.’

10
The conclusion I have come to is that prostitution represents a form of violence
against women both as a result of the way it is regulated, and as intrinsic to
prostitution. This is because the way prostitution is currently regulated, whether it
is criminalised, decriminalised or legalised, abuse some or all of prostitutes’ basic
human rights. Furthermore, institutionalised systems such as patriarchy, racism
and heteronormativity uphold intersecting disadvantages that women face around
their sexuality, ethnicity and gender. This constrains women’s ability to make a
free choice of employment, and it degrades women and treats them as less than
human. Therefore prostitution is a form of human rights abuse, which makes it
inherently violent.
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