Sex trafficking and criminalization: In defense of feminist abolitionism

University of Pennsylvania Law Review

Volumn 158, Issue 6, 2010, Pages 1729-1778

  Dempsey, Michelle Madden ^a,b  

^a VILLANOVA UNIVERSITY   (United States)

^b UNIVERSITY OF OXFORD   (United Kingdom)

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EID: 77954748556     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (251)

1. Segregating the two sides into respective camps in these terms is, admittedly, somewhat of an oversimplification. There are, of course, many areas of both actual and potential agreement between the sides, and it is possible to develop a more nuanced approach that blends aspects of each. This Article is an attempt to identify areas of agreement while providing a detailed explanation and defense of abolitionism.
2. For a helpful overview of the Swedish model, see Gunilla Ekberg, The Swedish Law That Prohibits the Purchase of Sexual Services: Best Practices for Prevention of Prostitution and Trafficking in Human Beings, 10 VIOLENCE AGAINST WOMEN 1187 (2004).
3. The choice of terminology here calls for some explanation. If there is one thing abolitionists and nonabolitionists can agree on, it is that the term "prostitute" should be avoided, because of its problematic historical use and resulting negative connotations. Disagreement abounds, however, regarding the best choice of substitute terminology. Abolitionists tend to favor "prostituted people" while nonabolitionists tend to favor "sex worker." Indeed, these tendencies are so marked that one can typically identify the political leanings of an author based on her choice between these two terms. In what follows, I will use the terms "prostituted people" and "people who sell sex" interchangeably to refer to the people with whom prostitute-users engage in sexual acts of prostitution. I mean for these terms to apply across the whole range of persons so designated, without limitation based on the degree of autonomy exercised by these people: the terms are meant to cover both the most enslaved and the most freely choosing. I accept the critique likely to come from nonabolitionists that the term "prostituted people" suggests that I mean to limit my considerations to pimped prostitution (and that I am thus wrongly suggesting that all prostitution is pimped). I do not believe that all prostitution is pimped, and I do not intend to limit the term "prostituted people" to people engaged in pimped-prostitution. Grammatical awkwardness aside, I will assume that a prostituted person may not necessarily be a pimped person. I further accept the critique likely to come from abolitionists that the term "people who sell sex" suggests an implausibly high degree of autonomy, bordering on the characterization of these people as "sex workers," and that a more accurate term would be "people who are sold for sex." As stated above, I do not mean for my choice of terminology to suggest anything with regard to the degree of autonomy exercised by the people with whom prostitute-users engage in sexual acts of prostitution. If "prostituted people" is thought by nonabolitionists to suggest too little autonomy, and if "people who sell sex" is thought by abolitionists to suggest too much, then perhaps employing both terms interchangeably will achieve a virtuous mean.
4. As its name suggests, the Swedish model was first implemented in Sweden, see Lag om förbud mot kõp av sexuella tjänster (Svensk författningssamling [SFS] 1998:408) (Swed.) [Act Prohibiting the Purchase of Sexual Services] (criminalizing users of people who sell sex), although more recendy the model has been adopted in Norway.
5. See Ulrikke Moustgaard, Prostitution Legislation at a Turning Point: Will They Go the Same Way?, NlKK MAGASIN, 1.2009, at 24, available at http://www.nikk.uio.no>/?module=Articles;action=Article.publicShow;ID=891 (discussing the criminalization of prostitution in Nordic countries, including Norway's decision to ban the purchase of sexual services beginning in 2009). Soudi Korea moved toward adopting the Swedish model with two acts passed in 2004. See Act on the Prevention of Prostitution and Protection of Victims Thereof, Statutes of Soudi Korea, Act No. 7212 (Mar. 22, 2004);
6. Act on the Punishment of Procuring Prostitution and Associated Acts, Statutes of South Korea, Act No. 7196 (Mar. 22, 2004). Finland prohibits the purchase of sex from victims of human trafficking and pandering (i.e., pimping). Rikoslaki [Penal Code], 20:8 (Fin.). As discussed further below, England and Wales have recendy prohibited "[p]aying for sexual services of a prostitute subjected to force, direats... or any other form of coercion, or... deception." Sexual Offences Act, 2003, c. 42, § 53A (Eng.) (as amended by Policing and Crime Act, 2009, c. 26, § 14 (Eng.)). A similar model is presendy being advocated in Illinois by the Chicago Alliance Against Sexual Exploitation. See End Demand Illinois, http://www.enddemandillinois.org (last visited Apr. 15,2010) (focusing on the harm inflicted on the "women and girls in the sex trade").
7. Clearly this reform proposal remains controversial among conservative and reactionary abolitionists who view selling sex as immoral and would prefer to penalize both buyers and sellers. See, e.g., United States v. Bitty, 208 U.S. 393, 401 (1908) (characterizing "[t]he lives and example of... women who for hire ... offer their bodies to indiscriminate intercourse with men" as hostile to "reverent morality which is the source of all beneficent progress in social and political improvement");
8. Shaw v. Dir. of Pub. Prosecutions, [1962] A.C. 220 (H.L. 1961) (appeal taken from Eng.) (upholding a conviction for advertising the sale of sex as a "conspiracy to corrupt public morals");
9. Roger Scruton, Old Profession, New Toleration: The State of Prostitution, and the Harm It Causes, NAT'L REV., June 19, 2006, at 42, 43 (defending the condemnation of selling sex as "not just puritan bigotry" but instead "a recognition of a profound truth" that selling sex is tantamount to "abusing the body," which thereby "harden[s] the soul").
10. See, e.g., Janet Halley et al., From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 HARV. J.L. & GENDER 335, 396-98 (2006) (criticizing Sweden's approach to sex trafficking for driving the industry deeper underground, resulting in more dangerous conditions for sex workers);
11. Julia O'Connell Davidson, 'Sleeping with the Enemy'? Some Problems with Feminist Abolitionist Calls to Penalise Those Who Buy Commercial Sex, 2 SOC. POL. & SOC'Y 55, 62 (2003) (arguing against the focus on reducing demand for prostitution, noting that it aligns feminist groups with unlikely allies such as anti-immigration politicians);
12. Teela Sanders & Rosie Campbell, Why Hate Men Who Pay for Sex? Exploring the Shift to Tackling Demand' in the UK (contending that the vilification of men who pay for sex may do more harm than good to those working in the sex industry), in DEMANDING SEX: CRITICAL REFLECTIONS ON THE REGULATION OF PROSTITUTION 163, 163-64 (Vanessa E. Munro & Marina Deiia Giusta eds., 2008).
13. See Halley et al., supra note 6, at 351 (describing the "pro-work" view of prostitution, which views prostitution as a liberating act that allows a woman to "take[] control of her own body");
14. O'Connell Davidson, supra note 6, at 61 (noting that some people who sell sex prefer their mode of employment as a means of making a living).
15. See O'Connell Davidson, supra note 6, at 61.
16. For a detailed account of what I mean by the term "patriarchal structural inequalities," see MICHELLE MADDEN DEMPSEY, PROSECUTING DOMESTIC VIOLENCE 147-53 (2009).
17. In sum, I use the term "patriarchy" as a placeholder, to represent a particular kind of wrongful structural inequality against which feminism is concerned to act. In Prosecuting Domestic Violence, I analyzed patriarchy in terms of three aspects: sex discrimination, sexism, and misogyny. Id. at 139-47. For further discussion of these elements, see supra Section I.A. I do not mean to suggest in this Article that all feminist abolitionists endorse my account of patriarchal structural inequality or, relatedly, my understanding of feminism as action taken in opposition to patriarchy. It seems clear, however, that some basic commitments do tend to inform feminist-abolitionist thought, including (1) the understanding of gender as a social construction, specifically as a hierarchical structural inequality in which women are subordinated to men; (2) the belief that this structural inequality is neither eradicable nor inevitable-that it can be dismanded and that realization of a post-patriarchal society is possible; (3) the belief that prostitution is central to the maintenance of patriarchal structural inequality and that the institution of prostitution would not exist in its current form or, perhaps, not exist at all in a post-patriarchal society; and (4) the belief that working to abolish the institution of prostitution is one important means of pursuing the goal of dismanding structural inequalities more generally. Broadly speaking, feminist abolitionism's account of sex inequality and its understanding of the role of prostitution in maintaining sex inequality are influenced by the work of Cadiarine MacKinnon.
18. See, e.g., CATHARINE A. MACKINNON, FEMINISM UNMODIFIED (1987) [hereinafter MACKINNON, FEMINISM UNMODIFIED];
19. CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE (1989) [hereinafter MACKINNON, FEMINIST THEORY];
20. Cadiarine A. MacKinnon, Prostitution and Civil Rights, 1 MICH. J. GENDER & L. 13 (1993). For an illuminating defense of feminist abolitionism from a radical feminist perspective,
21. see Kathy Miriam, Stopping the Traffic in Women: Power, Agency and Abolition in Feminist Debates over Sex-Trafficking 36 J. SOC. PHIL. 1, 13-14 (2005).
22. There are, of course, many other aspects of Millian liberalism, but the one I refer to here is the famous "harm principle" articulated by John Stuart Mill in his essay, On Liberty, in which he declares, "[T] he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." JOHN STUART MILL, ON LIBERTY AND OTHER ESSAYS 14 (John Gray ed., Oxford Univ. Press 1998) (1859). The most thorough and influential examination of the scope of the harm principle (and related principles relevant to limiting the scope of the criminal law) remains Joel Feinberg's four-volume series, The Moral Limits of the Criminal Law.
23. See 1 JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO OTHERS (1984);
24. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: OFFENSE TO OTHERS (1985);
25. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO SELF (1986);
26. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING (1988).
27. As Feinberg articulated the offense principle, It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end .... 2 FEINBERG, supra note 10, at 1 (emphasis omitted). For arguments against criminalizing offensive conduct, see A.P. SlMESTER & ANDREW VON HIRSCH, Penalising Offensive Behaviour: Constitutive and Mediating Principles, in INCTVTLITIES 115, 115-16 (A.P. Simester & Andrew von Hirsch eds., 2006);
28. A.P. Simester Sc Andrew von Hirsch, Rethinking the Offense Prindple, 8 LEGAL THEORY 269, 271 (2002). The issue of whether mere offense can justify criminalization featured prominendy in the famous Wolfenden Report debates in the 1950s regarding the criminalization of prostitution-related activities.
29. See REPORT OF THE COMMITTEE ON HOMOSEXUAL OFFENSES AND PROSTITUTION, 1957, Cmnd. 247, at 140 para. 249 (Eng.) ("[W]e feel that the right of the normal, decent citizen to go about the streets without affront to his or her sense of decency should be the prime consideration ....").
30. Curiously, Feinberg characterized the harms experienced by prostituted people (insofar as they were recognized by him as harms at all) as self-inflicted harms, grouping diem together with conduct such as "aiding and abetting a suicide, 'mercy killing,' agreed-upon surgical mutilation, [and] duels." 3 FEINBERG, supra note 10, at 172. It is not clear to me why any of these examples should be considered cases of self-inflicted harm as opposed to cases of harm to others in which the harmed person has (presumably) consented to the harm or risk of harm. If one were looking for cases of self inflicted harms, one would think that examples such as suicide, self-mutilation ("cutting"), or self-starvation might serve as better examples. Presumably, Feinberg's understanding of self-inflicted harms was inspired by his particularly expansive application of the volenti maxim (whose name is derived from the Latin phrase volenti non fit injuria, which means, "To one who consents, no wrongful harm is done"). Under Feinberg's interpretation of the volenti maxim, one's consent not only converts an otherwise wrongful harm into a nonwrong, but actually transforms the consenting subject into the agent of the action itself, "transfer[ring] at least part of the responsibility for one person's act to the shoulders of the consenter."
31. Id. at 174-76.
32. It is, of course, possible to construct arguments against the purchase of sex that emphasize the sense in which this conduct is wrongful without attending to the fact that it is also harmful. Arguments grounded in the wrongfulness of objectification or commodification, for example, need not attend to the question of harm, although they frequendy elide the distinction between wronging and harming. For the classic exposition of the wrongfulness of commodification (albeit one that rejects abolitionist reforms defended below), see MARGARET JANE RADIN, CONTESTED COMMODITIES (1996).
33. For an argument that selling sex is not wrongful, despite its tendency toward objectification and commodification, see MARTHA C NUSSBAUM, SEX & SOCIAL JUSTICE 276, 276-78 (1998).
34. For a discussion of the failure to recognize women and girls as human beings in international human rights discourse, see CATHARINE A. MACKINNON, ARE WOMEN HUMAN? 141-42, 180-82 (2006).
35. See generally CAROLE PATEMAN, THE SEXUAL CONTRACT 41 (1988) ("In contemporary discussions of the state of nature ... [the fact that human beings are sexually differentiated] is usually disregarded.");
36. JANICE RICHARDSON, THE CLASSIC SOCIAL CONTRACTARIANS: CRITICAL PERSPECTIVES FROM CONTEMPORARY FEMINIST PHILOSOPHY AND LAW Il (2009) (noting women's traditional exclusion from the theoretical frameworks of social contractarians).
37. It is, of course, possible to agree that the harms often suffered by prostituted people are the kind that tend to sustain and perpetuate patriarchal structural inequality without also taking the feminist view that such structural inequalities are wrongful. On that view, one I gratefully take to be uncommon, the tendency of these harms to sustain and perpetuate patriarchal structural inequality might be thought to mitigate the wrongfulness of the harms. So, while the harm may be deemed problematic to the extent it caused physical pain or injury, its moral quality would be slighdy redeemed by the tendency of the harm to keep women in their place.
38. See DEMPSEY, supra note 9, ch. 7 (providing a philosophical analysis of patriarchy).
39. Id. at 139-47.
40. Previously, I characterized the matter more simply, in terms of failures to provide women with valuable options. Id. at 140-48. Here, I note the relevance of "pursuing a life conducive to human flourishing" in order to provide a more explicit context for appreciating what makes an option valuable. I do not intend any significant change in meaning; rather, I seek merely to clarify an issue left open in my previous work. Space and scope preclude further development of these ideas here, but suffice it to say that my dunking has been influenced by the Aristotelian themes running through Professor Nussbaum's writings on human flourishing and human capacities.
41. See generally MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT (2000);
42. Martha Nussbaum, Human Functioning and Social Justice: In Defense of Aristotelian Essentialism, 20 POL. THEORY202 (1992).
43. This account of sex discrimination tracks the work of Timodiy Macklem, as refined by Denise Réaume. See TIMOTHY MACKLEM, BEYOND COMPARISON: SEX AND DISCRIMINATION 11 (2003) (arguing that because of "prevailing misconceptions of what it means to be a woman," women are denied access to opportunities and resources that they need to live succesful lives);
44. Denise Réaume, Comparing Theories of Sex Discrimination: The Role of Comparison, 25 OXFORD J. LEGAL STUD. 547, 549 (2005) (refining Macklem's account of what it means "to be a woman" to focus more on women's "attributes, needs, or interests"). For a more detailed discussion of sex discrimination, see
45. DEMPSEY, supra note 9, at 140-45.
46. DEMPSEY, supra note 9, at 140 (quoting MACKLEM, supra note 20, at 154; Réaume, supra note 20, at 549).
47. See, e.g, NICHOLAS D. KRISTOF Sc SHERYL WUDUNN, HALF THE SKY: TURNING OPPRESSION INTO OPPORTUNITY FOR WOMEN WORLDWIDE 3-9 (2009) (discussing the phenomenon of intergenerational female prostitution in the Nutt clan near the Nepalese-Indian border);
48. id. at 23-24 (describing the attitude expressed by an officer working at the Indian border).
49. See, e.g., Amartya Sen, More than One Hundred Million Women Are Missing N.Y. REV. BOOKS, Dec. 20, 1990, at 61, available at http://www.nybooks.com/ articles/3408(documenting the "missing women" phenomenon, brought about by systematic failures to provide women and girls with adequate nutrition, shelter, and medical care).
50. See, e.g., Sex Professionals of Canada, Bad Client List, http://www.spoc.ca/bad.html (last visited Apr. 15, 2010) (providing extensive records of prostitute-users who have raped and violendy assaulted prostituted people from 2003-2009).
51. These feedback loops are established when knowledge of the harms suffered by prostituted people becomes known and inspires misogynistic attitudes and actions.
52. In this regard, the feminist understanding of the harms of prostitution is importandy distinct from viewing prostitution as a public health issue. Cf. Eliot Ness, Federal Government's Program in Attacking the Problem of Prostitution, FED. PROBATION, Apr.-June 1943, at 17,18 (arguing that curtailing prostitution is necessary for disease prevention).
53. See Melissa Farley et al., Prostitution 6° Trafficking in Nine Countries: An Update on Violence and Posttraumatic Stress Disorder, in PROSTITUTION, TRAFFICKING, AND TRAUMATIC STRESS 33, 33-34 (Melissa Farley ed., 2003) (surveying 854 prostituted women and finding that a majority of those surveyed had been subjected to physical violence);
54. Ameporn Ratindiorn et al., Trapped in Circle of Threats: Violence Against Sex Workers in Thailand, 30 HEALTH CARE FOR WOMEN INT'L 249, 256-66 (2009) (detailing sources and categories of violence against prostituted people);
55. Milena Simic Sc Tim Rhodes, Violence, Dignity and HIV Vulnerability: Street Sex Work in Serbia, 31 SOC. HEALTH Sc ILLNESS 1, 4-9 (2009) ("Street sex workers found themselves caught in a cycle of violence ");
56. Cathy Zimmerman et al., The Health of Trafficked Women: A Survey of Women Entering Posttrafficking Services in Europe, 98 AM. J. PUB. HEALTH 55, 56-57 (2008) (surveying women entering posttrafficking services and finding high rates of physical and sexual abuse in trafficking victims).
57. See Melissa Farley & Howard Barkan, Prostitution, Violence, and Post-Traumatic Stress Disorder, 27 WOMEN & HEALTH 37, 44-45 (1998) (examining the prevalence of PTSD in a study of San Francisco prostituted-women);
58. see also JUDITH LEWIS HERMAN, TRAUMA AND RECOVERY 76-84 (1992) (comparing the techniques used to subjugate women in prostitution to the experiences of "hostages, political prisoners, and survivors of concentration camps").
59. In my account of the harm experienced by prostituted women, therefore, "although the person is kept in view, the touchstone for analysis and outrage is the collective group called women." MACKINNON, FEMINIST THEORY supra note 9, at 40 (internal quotation marks omitted).
60. To be clear, what I mean by "the feminist premises of the argument" are the premises set out in this Section, which claim that the harms often experienced by prostituted people have a tendency to sustain and perpetuate patriarchal structural inequality.
61. See generally Jacqueline Berman, The Left, the Right, and the Prostitute: The Making of U.S. Antitrafficking in Persons Policy, 14 TUL. J. INT'L & COMP. L. 269, 283-88 (2006) (describing die "unlikely" partnership between the Christian right and radical feminists);
62. Melissa Ditmore, Trafficking in Lives: How Ideology Shapes Policy (arguing that the alliance between feminists and political conservatives has led to the passage of "dangerous" legislation), in TRAFFICKING AND PROSTITUTION RECONSmERED 107, 112-22 (Kamala Kempadoo ed., 2005);
63. O'Connell Davidson, supra note 6, at 59-61 (cautioning against a union between feminists and state actors); Penelope Saunders, Traffic Violations: Determining the Meaning of Violence in Sexual Trafficking Versus Sex Work, 20 J. INTERPERSONAL VIOLENCE 343, 351-60 (2005) (noting that the antitrafficking agenda that results from the union between feminist abolitionists and conservatives is "clearly antithetical to the struggle for women's rights").
64. O'Connell Davidson, supra note 6, at 55.
65. Id.
66. Accounts of the passage of Tide VII, which prohibits employment discrimination on the basis of, inter alia, sex, speak to this phenomenon. In its original form, the bill did not provide protection from discrimination on the basis of sex. During debate, sex was added to the list of prohibited grounds of discrimination in an effort to defeat the bill. This popular version of events is recounted and queried in Jo Freeman, How "Sex" Got into Title VII: Persistent Opportunism as a Maker of Public Policy, 9 LAW & INEQ. 163 (1991).
67. Indeed, the ability to overcome conflicts regarding values and background reasons may contribute to the justification of coalition-based policy creation. Just as with human rights discourse, "part of the value, and hence part of the justification, for people having rights in the first place" is that such rights give rise to a "convergence consideration," which in turn "allows us to get beyond our disagreements about the (other) values by which those rights-assignments are justified." John Gardner, "Simply in Virtue of Being Human": The Whos and Whys of Human Rights, 2 J. ETHICS & SOC. PHIL. 1, 9-10 (2008). Despite continuing disagreement regarding background reasons that support the policy, agreement as to adoption of a given policy can allow us to make some progress on the question of how a particular case should be handled under that policy, without having to dredge up the conflicting background reasons that underpinned our convergence on the policy in the first place.
68. Feminist abolitionists, for example, have been split on the wisdom of alliances with the Bush Administration, both with regard to the substance of the particular policies and the risk of lending political legitimacy to an administration that was neither in support of feminist aims more broadly nor even consistendy abolitionist in its own activities. For an anti-abolitionist account of the alliances between abolitionists and the Bush Administration, see Ditmore, supra note 31, at 117-22. For a critique of Bush-era antitrafficking policies in the U.S. Department of Justice, see Michelle Madden Dempsey, D.O.J. Model State Anti-Trafficking Statute: Critique and Revision, in PORNOGRAPHY: DRIVING THE DEMAND IN INTERNATIONAL SEX TRAFFICKING 274 (David E. Guinned ed., 2007).
69. O'Connell Davidson, supra note 6, at 56.
70. By "basic feminist commitments," I mean commitments to oppose wrongful structural inequalities along multiple intersecting axes, albeit from a point of view particularly concerned with recognizing and responding to the reasons generated by the wrongful structural inequality of patriarchy. See DEMPSEY, supra note 9, at 135. There may be, of course, anti-immigration arguments that are grounded in a concern with avoiding exacerbating existing inequalities.
71. See, e.g, Research Group on the Global Future, Ctr. for Applied Pol'y Research, Brain Drain (July 20, 2005), http://www.cap-lmu.de/fgz/statistics/ brain-drain.php (objecting to liberalized immigration on grounds that "brain-drain" from less developed nations will widen existing inequalities). If, however, anti-immigration policies are grounded in xenophobia or a belief that certain people ("us") are endued to more resources and power than others ("them") simply by virtue of national citizenship, then such arguments strike me as inconsistent with basic feminist commitments. On immigration policy and social justice generally,
72. see PHILLIP COLE, PHILOSOPHIES OF EXCLUSION 1-15 (2000);
73. KEVIN R. JOHNSON, OPENING THE FLOODGATES: WHY AMERICA NEEDS TO RETHINK ITS BORDERS AND IMMIGRATION LAWS 18-26 (2007). For an argument in favor of liberalizing immigration laws to address trafficking,
74. see Karen E. Bravo, Free Labor! A Labor Liberalization Solution to Modem Trafficking in Humans, 18 TRANSNAT'L L. & CONTEMP. PROBS. 545, 571-73 (2009).
75. This is not to say that it necessarily will-but simply that it might very well be worth a try. For an optimistic account of this possibility in the context of domestic violence prosecution, see DEMPSEY, supra note 9. For a compelling examination of the ways in which the criminal law and perhaps even appeals to state power more generally, have been in tension with feminist antiviolence goals, see KRISTIN BUMILLER, IN AN ABUSIVE STATE: HOW NEOLIBERAUSM APPROPRIATED THE FEMINIST MOVEMENT AGAINST SEXUAL VIOLENCE ch. 4 (2008). Still, while all of these works underscore the risk of backlash and the importance of feminists working outside existing state institutions and legal systems, they do not justify the conclusion that working inside (as well) is necessarily inconsistent with achieving feminist goals.
76. For example, reforms that permit police to arrest for domestic violence offenses without personally observing the offenses and sentencing policies that mandate court supervision in domestic violence cases are both expansions of the state's criminalization powers that are not necessarily inconsistent with feminist goals. For a review of these developments, see Joan Zorza, The Criminal Law of Misdemeanor Domestic Violence, 1970-1990, 83 J. CRIM. L. & CRIMINOLOGY 46, 53-65 (1992). The backlash effect of many domestic violence reforms in the criminal justice system, while introducing a healdiy dose of skepticism and caution, was not a necessary effect of these reforms.
77. In "strange bedfellows" critiques that target feminist abolitionists' associations with law enforcement officials, there is often a hint that the categories of "law enforcement official" and "feminist" are mutually exclusive. As I hope to have demonstrated in previous work, they are not See, e.g., DEMPSEY, supra note 9.
78. Saunders, supra note 31, at 355.
79. For a particularly stark contrast between conservative and reactionary abolitionism and feminist abolitionism, consider the following from the website Christ Is the Only Way to Heaven!, www.jesus-is-savior.com http://www.jesus-is- savior.com (last visited Apr. 15, 2010) : Pages on the site call for the abolition of prostitution as a particularly objectionable form of fornication.
80. See Prostitution Is Wicked!, http://www.jesus-is-savior.com/ Evils%20in%20America/prostitutionJs-wicked.htm, (last visited Apr. 15, 2010) ("Marriage is honourable in all, and the bed undented: but whoremongers and adulterers God will judge." (quoting Hebrews 13:4)). At the same time it condemns feminism-even feminist theology-as "diabolical." Feminist Theology?, http://www.jesus-is-savior.com/Evik%20m%20America/Feminism/feimnist- dieology.htm (last visited Apr. 15, 2010).
81. The phrase "social form" is borrowed from the writings of Joseph Raz. See JOSEPH RAZ, THE MORAUTYOF FREEDOM 307-13 (1986) (defining "social forms" as "forms of behavior which are in fact widely practised in ... society"). For a detailed discussion of social forms,
82. see DEMPSEY, supra note 9, at 137-39.
83. See supra Sections I.A. and I.B.
84. It is possible for conservative and reactionary abolitionist accounts to borrow the language of harm to articulate their claims. In this regard, Bernard Harcourt observes that the harm principle is "effectively collapsing under the weight of its own success." Bernard E. Harcourt The Collapse of the Harm Principle, 90 J. CRIM. L. Sc CRIMINOLOGY 109, 113 (1999). However, insofar as the substance of conservative and reactionary objections to prostitution continues to focus on the threat prostitution poses to traditional patriarchal social forms, these harm-based arguments remain ideologically at odds with feminist abolitionism. For this reason, I respectfully decline to follow Harcourt's characterization of feminist arguments grounded in a concern regarding harm to women as part of a "proliferation of conservative harm arguments."
85. Id. at 147-54.
86. Cf. supra note 31 and accompanying text.
87. See M. Madden Dempsey, Rethinking Wolfenden: Prostitute-Use, Criminal Law, and Remote Harm, 2005 CRIM. L. REV. 444, 449-50 (making similar stipulations, but cautioning against mistaking a conceptual concession for a factual conclusion).
88. These stipulations should neutralize common arguments against feminist abolitionism. For a particularly well-developed account of these arguments, see Janie Chuang, Student Article, Redirecting the Debate over Trafficking in Women: Definitions, Paradigms, and Contexts, 11 HARV. HUMAN RTS. J. 65, 84-96 (1998).
89. See, e.g., Janice G. Raymond, Prostitution as Violence Against Women: NGO Stonewalling in Beijing and Elsewhere, 21 WOMEN'S STUD. INT'L F. 1 (1998);
90. Finn MacKay, Prostitution Is Violence Against Women 2, http://www.ldnfeministnetwork.ik.com/attachments/ProstitutionrVAW.pdf (last visited Apr. 15, 2010);
91. Feminist Coalition Against Prostitution (FCAP), Prostitution Is Violence Against Women, http://www.fcap.btik.com (last visited Apr. 15, 2010) ("We are a coalition of UK Feminist individuals and groups who believe that prostitution is violence against women.").
92. See, e.g., Ronald Weitzer, Flawed Theory and Method in Studies of Prostitution, 11 VIOLENCE AGAINST WOMEN 934, 934-35 (2005) [hereinafter Weitzer, Flawed Theory] (arguing that feminist theorists "view prostitution as categorically evil");
93. Ronald Weitzer, Rehashing Tired Claims About Prostitution: A Response to Farley and Raphael and Shapiro, 11 VIOLENCE AGAINST WOMEN 971, 973 (2005) (decrying "the equation of prostitution with violence" as "a central radical feminist tenet").
94. See, e.g, Weitzer, Flawed Theory, supra note 51, at 941-42 (asserting that, in feminist theory, "[v]iolence is intrinsic to the very definition of prostitution, so there can be no prostitution widiout violence"). For a similar critique,
95. see Kamala Kempadoo's complaint that "the global sex trade cannot be simply reduced to one monolidiic explanation of violence to women." Kamala Kempadoo, Women of Color and the Global Sex Trade: Transnational Feminist Perspectives, 1 MERIDIANS 28, 28 (2001). As explained herein, however, feminist abolitionism need not offer a "monolidiic explanation" of sex trafficking or prostitution in order to support its response to these social phenomena.
96. See Weitzer, Flawed Theory, supra note 51, at 936 (arguing that the feminist conceptualization of prostitution as violence is a "flawed theory" because it is impossible to verify or disprove).
97. Id. at 942
98. (quoting Janice G. Raymond, Prostitution on Demand: Legalizing the Buyers as Sexual Consumers, 10 VIOLENCE AGAINST WOMEN 1156, 1175 (2004) ).
99. See id. at 941-42 (quoting Raymond, supra note 54, at 1175) (claiming that radical feminists' argument that "violence is intrinsic to prostitution" obviates the need to determine how much violence actually occurs).
100. -8 THE OXFORD ENGUSH DICTIONARY 22 (R.W. Burchfield ed., 2d ed. 1989).
101. Id.
102. See Weitzer, Flawed Theory, supra note 51, at 945-46 ("Violence in prostitution is a serious problem.").
103. Of course, criticism of prostitution can focus solely on the commodification of sex, without attending to the harms prostitution causes in the real world, but such an abstraction-which obscures the relationship between commodification and subordination-would provide litde basis for objecting to commodification in the first place. See RADIN, supra note 13, at 160-63 ("Commodification of significant attributes of personhood cannot be easily uncoupled from wrongful subordination.").
104. For a similar account of the relationship between rape and domestic violence, see Michelle Madden Dempsey, What Counts as Domestic Violence? A Conceptual Analysis, 12 WM. & MARYJ. WOMEN & L. 301, 328-29 (2006).
105. For a discussion of the range of mediods advocated under the Swedish model, see Ekberg, supra note 2, at 1188-91.
106. I will adopt the definition of trafficking set out in Article 3 of the U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, which states in relevant part that
107. (a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use offeree or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
108. (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used. CA. Res. 55/25, Annex II, art 3, U.N. Doc. A/RES/55/25 (Jan. 8, 2001) [hereinafter Palermo Protocol]. Given that this definition is a mouthful, recounting it each time I refer to trafficking below will prove awkward. I will therefore use the phrase "force, threats, coercion, etc." to capture the sort of events that occur at Tl. I do not, however, mean to imply that the definition of trafficking in the Palermo Protocol is limited to cases involving force, threats, or coercion. For a critique of misrepresentations of the terms of the Palermo Protocol definition, which unduly limit the scope of what counts as trafficking, see Kaethe Morris Hoffer, A Response to Sex Trafficking Chicago Style: Follow the Sisters, Speak Out, 158 U. PA. L. REV. 1831 (2010).
109. My argument is not that people who buy sex are already liable under the criminal law doctrines of complicity. Rather it is that these people are responsible for wrongdoing by virtue of the complicitous relationship that their conduct bears to the harms inflicted on prostituted people. For two particularly helpful accounts of this sense of complicity responsibility, see CHRISTOPHER KUTZ, COMPUCITY 209-18 (2000), and John Gardner, Complicity and Causality, 1 CRIM. L. Sc PHIL. 127, 128 (2007).
110. Gardner, supra note 63, at 141. In criminal law, complicity liability or accomplice liability involves holding the accomplice liable for the principal's crime. See, e.g., 18 U.S.C. § 2(a) (2006) (providing for the punishment of accomplices as principals); Accessories and Abettors Act 1861, 24 Sc 25 Vict, c. 94, § 8 (Eng.) (same). The common law distinctions between different forms of accessory participation-for example, aiding, abetting, counseling, procuring, inducing, and encouraging-and categorizations such as "accessory before the fact" versus "accessory after the fact" are not relevant to our discussion.
111. The particular kind of difference that must be made is a matter of some debate, but all sides agree that the test for complicity is met in cases where the accomplice's conduct makes a but-for causal contribution to the principal's wrongdoing. For the sake of simplicity in oudining the argument here, I will focus on this sort of contribution. For arguments on both sides of the causal-contribution debate in complicity responsibility, compare the view expressed in Gardner, supra note 63, which argues that there is no way to participate in the wrongs of another without causally contributing to them, with that expressed in Christopher Kutz, Causeless Complicity, 1 CRIM. L. & PHIL. 289 (2007), which argues that "we can be complicit in others' wrongs without making a [causal] difference to the occurrence of these wrongs."
112. See DOUGLAS HUSAK, OVERCRIMINAUZATION 66 (2008).
113. See generally Rollin M. Perkins, A Rationale of Mens Rea, 52 HARV. L. REV. 905 (1939) (exploring the concept of mens rea in the criminal law context).
114. Id. at 908-11.
115. It may, however, be more typical than commonly understood. See, e.g., infra notes 70-71.
116. A recent survey of prostitute-users included statements like these: I don't get pleasure from other people's suffering. I struggle with it but I can't deny my own pleasures. In Cambodia I knocked back a lot of children; it makes it hard to sleep at night But I don't see the point in making a moral stance. [By paying for sex] [y]ou are the boss and get what you want. Everyone recognises the objectification as part of the business exchange of prostitution. JAN MACLEOD ET AL., CHALLENGING MEN'S DEMAND FOR PROSTITUTION IN SCOTLAND: A RESEARCH REPORT BASED ON INTERVIEWS WITH 110 MEN WHO BOUGHT WOMEN IN PROSTITUTION 14-20 (2008), available at http://www.prostitutionresearch.com/ ChallengingDemandScodand.pdf.
117. For a study of men who buy sex, see TEELA SANDERS, PAYING FOR PLEASURE: MEN WHO BUY SEX (2008). One man, a thirty-six-year-old charity worker, stated of having sexual encounters with prostitutes working on the streets, [T]o be honest I feel it's exploitation.... [Prostituted people] are there because they're desperate and they've nodiing else to do and there's no other choice for them. I mean ... I don't feel happy about doing that because I'm aware that some of the people I saw... were fairly obviously drug addicts. Quite a lot of them I suspect may have been quite young; sort of sixteen, seventeen. ... I mean I wasn't proud about [it] .... It was interesting and it was fascinating but wrong.
118. Id. at 52.
119. See Sanford H. Radish, Reckless Complicity, 87 J. CRIM. L. & CRIMINOLOGY 369, 37882 (1997) (discussing recklessness as adequate to ground culpability for complicity). Sanders concludes that these men demonstrated "concern with the exploitation" in prostitution and viewed the purchase of sex in some market segments as unacceptable. SANDERS, supra note 71, at 53. There are two interesting points to note regarding Sanders's study. First the evidence does indeed support the conclusion that the men recognized that many prostituted people in these market segments were being harmed and that purchasing sex in these markets would contribute to the continuation of these harms. See td. ("Most men demonstrated an awareness of the types of exploitation that are associated with the sex industry ...."). Second, the men's recognition of this fact did not by and large, deter them from purchasing sex.
120. See id. at 49-56 (describing how the men's recognition of exploitative behavior "informed which markets they approached" but did not necessarily deter them from purchasing sex altogedier).
121. See, e.g, Man Gets 8 Years for Turning Teen into Prostitute: Another Name Put on Sex Offender Registry, TORONTO STAR, June 18, 2008, at A14, available at 2008 WLNR 11461066 (reporting the case of Josh Mfizi, who abusively pimped a teenage girl and charged buyers three hundred dollars per hour).
122. An example of this phenomenon can be found in the relationship between market demand for genuine designer handbags and knock-off replicas, in which elitesegment market demand (i.e., demand for the expensive, genuine bags) creates an "aspirational effect" that in turn generates market demand in non-elite segments (i.e., demand for knock-offs). Seejonadian M. Bamett, Shopping for Gucci on Canal Street: Reflections on Status Consumption, Intellectual Property, and the Incentive Thesis, 91 VA. L. REV. 1381, 1408-11 (2005) (noting that "non-elite consumers" are likely to "value more highly the relevant good ... given a perceived increase in the frequency of usage among elite consumers"). The more attenuated the market dynamics, the less risk any prostitute-user has of contributing to the ultimate harm, but this "argument from reduced probabilities does not in principle defeat the case for reckless complicity." Kadish,
123. supra note 72, at 381.
124. Of course, the sort of offense I have in mind would not be entirely strict as to each element of the actus reus. Rather, it would be strict only as to the risk that the buyer's conduct contributes to trafficking and abusive pimping. With respect to the actus reus element of purchasing sex, however, the normal mens rea requirements would apply
125. See, e.g, Sexual Offences Act 2003, c. 42, § 53A (Eng.) (as amended by Policing and Crime Act, 2009, c. 26, § 14 (Eng.)) (criminalizing the act of "paying for sexual services of a prostitute subjected to force, threats,... or any other form of coercion, or... deception" in England and Wales). It is irrelevant under the statute whether the buyer is, or ought to be, aware that the trafficker or pimp has engaged in such harmful conduct Id
126. SANDERS, supra note 71, at 55-56; see abo Julia O'Connell Davidson, Eroticizing Prostitute Use (discussing rationality errors by people who purchase sex, for example, the "fiction of mutuality"), in PROSTITUTION 189, 209-11 (Roger Matdiews & Maggie O'Neill eds., 2003).
127. See Steve Boggan, Nike Admits to Mistakes over Child Labour, INDEPENDENT (London), Oct. 20, 2001, at 15 (reporting Nike corporation's admission that it "blew it" by employing child labor in developing countries).
128. BRIDGET ANDERSON & JULIA O'CONNELL DAVIDSON, INT'L ORG. FOR MIGRATION, Is TRAFFICKING IN HUMAN BEINGS DEMAND DRIVEN? A MULTI-COUNTRY PILOT STUDY 10-11 (2003), available at http://www.compas.ox.ac.uk/fileadmin/files/ pdfs/Bridget-Anderson/BAl-Anderson%20IOM%20reportpdf. Neither Anderson nor O'Connell Davidson endorses this argument, which they characterize as equally problematic as those calling for the abolition of prostitution.
129. Id. at 11.
130. See Kadish, supra note 72, at 381 (acknowledging that as intervening actors increase in number, the probability of harm decreases and approaches a point where risks created are too tenuous to constitute recklessness).
131. Dennis J. Baker, The Moral Limits of Criminalizing Remote Harms, 10 NEW CRIM. L. REV. 370, 386-87 (2007).
132. Id.
133. Id. at 387.
134. Id.
135. For contenders on a list of exploitative reality television shows and videos, consider the 2009 season of Britain's Got Talent, which ended with the mental breakdown and hospitalization of Susan Boyle, and videos such as the Girls Gone Wild series. See Susan Boyle Suffers Emotional Breakdown, PEOPLE.COM http://PEOPLE.COM, May 31, 2009, http://www.people.com/people/article/0.,
136. For a discussion of complicity and justification, see generally Gardner, supra note 63, at 13&40. See abo John Gardner, Justification and Reasons, in HARM AND CULPABILITY 103 (A.P. Simester Sc A.T.H. Smith eds., 1996).
137. See Gardner, supra note 63, at 140 (arguing that some questions of justification need to be addressed before classifying an agent as complicit including whether alternative wrongs were avoided).
138. These experiences are recounted in KRISTOF & WuDUNN, supra note 22, at 29, 35, 37-38;
139. Nicholas D. Kristof, Asian Childhoods Sacrificed to Prosperity's Lust, N.Y. TIMES, Apr. 14, 1996, at Al [hereinafter Kristof, Asian Childhoods]
140. ; Nicholas D. Kristof, Op-Ed., Girls for Sale, N.Y. TlMES.Jan. 17, 2004, at A15 [hereinafter Kristof, Girls for Sale];
141. Nicholas D. Kristof, Op-Ed., Leaving the Brothel Behind, N.Y. TlMES.Jan. 19, 2005, at A19 [hereinafter Kristof, Leaving the Brothel Behind];
142. Nicholas D. Kristof, Op-Ed., Stopping the Traffickers, N.Y. Times.Jan. 31, 2004 at A17 [hereinafter Kristof, Stopping the Traffickers]
143. See Kristof, Girls for Sale, supra note 89 ("The only way to have access to the girls is to appear to be a customer.").
144. See id. (documenting a discussion with a prostituted teenage girl in Cambodia about her experiences and desire to free herself).
145. Id.
146. See Gardner, supra note 63, at 139-40 (discussing the propensity of potential accomplices to a crime to justify their conduct "by reference to the difference that [they] made to the overall incidence of wrongdoing").
147. ANDERSON Sc O'CONNELL DAVIDSON, supra note 80, at 41.
148. NUSSBAUM, supra note 13, at 296.
149. See supra text accompanying notes 87-93. If there are any people who sell sex without good reason-in other words, people who have no economic need or any other justifiable reason for participating in the market for sex-then the argument from complicity would extend to condemning their conduct However, given the extreme unlikelihood that any significant number of people fall into this category, and given the likelihood that their conduct may otherwise be excused, there are strong reasons to stand by feminist abolitionism's blanket refusal to endorse criminalizing the sale of sex.
150. R.A. DUFF, ANSWERING FOR CRIME 151 (2007).
151. See Victor Tadros, No Consent: A Historical Critique of the Actus Reus of Rape, 3 EDINBURGH L. REV. 317, 335 (1999) ("It would seem unobjectionable to convict [a] client of rape if he was aware that [a prostituted person] was being threatened with force."). I characterize these harms as "tantamount" to rape and sexual assault to allow for distinction between these harms, which are serious and considerable in their own right, and
152. see LlZ KELLY, SURVIVING SEXUAL VIOLENCE, 186-216 (1988). The harmfulness of sexual violation in prostitution, of course, is typically not a one-time event but is instead part of a continuing pattern, with each incident of prostitute-use contributing to the harm. For a detailed analysis of the harms suffered by chronically traumatized people, including prostituted people,
153. see generally JUDITH LEWIS HERMAN, TRAUMA AND RECOVERY 7-74 (1992). Melissa Farley has documented the harmfulness of sexual violation in prostitution in a series of works.
154. See PROSTITUTION, TRAFFICKING, AND TRAUMATIC STRESS (Melissa Farley ed., 2003) (providing a collection of essays about prostitution and traumatic stress); Melissa Farley, Prostitution and the Invisibility of Harm, 26 WOMEN & THERAPY 247, 248 (2003) (criticizing the "social and legal refusal to acknowledge the harm of prostitution");
155. Melissa Farley et al., Prostitution in Five Countries: Violence and PostTraumatic Stress Disorder, 8 FEMINISM & PSYCHOL. 405 (1998) (documenting the violence and traumatic stress inflicted on women who are prostituted). For a discussion of the limitations of the trauma model to understanding sexual violence,
156. see Sharon M. Wasco, Conceptualizing the Harm Done by Rape: Applications of Trauma Theory to Experiences of Sexual Assault, 4 TRAUMA, VIOLENCE & ABUSE 309, 309-22 (2003).
157. Evelina Giobbe, Prostitution: Buying the Right to Rape, in RAPE AND SEXUAL ASSAULT III 143, 143 (Ann Wolbert Burgess ed., 1991).
158. Id. at 144.
159. On one account of consent, what we might call a relational account, the use of force, threats, coercion, etc., by T against V in order to secure Vs submission to sex with D does not vitiate Vs consent to D, unless D actually knew-or at least suspected-that Vhad submitted under such conditions. If D is genuinely ignorant of the background conditions under which V submits, the argument goes, her consent remains unaffected. This account of consent strikes me as inconsistent with our best understanding of consent and instead captures cases in which Vdoes not consent to D yet the question of whether D is culpable for his conduct remains to be determined by other considerations-for example, whether his ignorance was culpable. If D's ignorance is culpable, then he is not to blame for inflicting this harm on V, yet he causes V harm nonetheless.
160. See Dempsey, supra note 48, at 448 n.24 (explaining my belief that "English rape law treats consent as a non-relational concept whereby force employed by X can negate Y' s consent to Z" (italics added)). My thanks to Andrew von Hirsch for pressing me on this point.
161. Here, I follow Antony Duffs helpful analysis. See R.A. Duff, Criminalizing Endangerment, in DEFINING CRIMES 43, 51 (R.A. Duff & Stuart P. Green eds., 2005).
162. Id.
163. See, e.g., ALA. CODE § 13A-6-24 (2006) ("A person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.");
164. COLO. REV. STAT. § 18-3-208 (2008) (similar);
165. CONN. GEN. STAT. ANN. § 53a-63 (West Supp. 2007) (similar);
166. N.Y. PENAL LAW § 120.20 (McKinney2009) (similar)
167. Duff, supra note 103, at 53. Note, however, that the identification of wrongful harm would not, in itself, justify criminalizing the conduct Further considerations would have to be taken into account to do so. Duff would add the further requirement that the conduct at issue be sufficiendy public in nature, rather than address mere private wrongdoing.
168. See id. I shall assume here that the case of purchasing sex in the context of the prostitution industry as currendy practiced is adequately public so as to meet Duffs concerns. In previous work, I have questioned the fruitfulness of employing the public/private dichotomy in this way.
169. See DEMPSEY, supra note 9, at 31-41. The public/private dichotomy, particularly as applied in the context of violence against women, has long been a target of feminist critique.
170. See generally Anita L. Allen, Coercing Privacy, 40 WM. SC MARY L. REV. 723 (1999) (offering a thoughtful treatment of these critiques and a reconstruction of the value of privacy).
171. Duff, supra note 103, at 59 (characterizing an "implicit endangerment" offense as an offense whose definition contains no explicit reference to harm).
172. Id.
173. The recendy adopted law in England is framed as an explicit endangerment offense (albeit a strict-liability one): (1)A person (A) commits an offence if-(a) A makes or promises payment for the sexual services of a prostitute (B), (b) a third person (C) has engaged in exploitative conduct of a kind likely to induce or encourage B to provide the sexual services for which A has made or promised payment, and (c) C engaged in that conduct for or in the expectation of gain for C or another person (apart from A or B).
174. The following are irrelevant-(a) where in the world the sexual services are to be provided and whether those services are provided, (b) whether A is, or ought to be, aware that C has engaged in exploitative conduct
175. C engages in exploitative conduct if- (a) C uses force, threats (whether or not relating to violence) or any other form of coercion, or
176. (b) C practises any form of deception. Sexual Offences Act, 2003, c. 42, § 53A (Eng.) (as amended by Policing and Crime Act, 2009, c. 26, § 14 (Eng.)) (italics added). As noted in the previous section, the English law seems to draw justification from both the argument from complicity and the argument from endangerment
177. Duff, supra note 103, at 60.
178. Id. at 59;
179. see also, e.g., 42 PA. CONS. STAT. ANN. § 2524 (West 2004) (making unauthorized practice of law in Pennsylvania a misdemeanor);
180. PA. CONS. STAT. ANN. § 422.10 (West 2010) (prohibiting the unlicensed practice of medicine);
181. PA. CONS. STAT. ANN. § 3362 (West 2006) (prohibiting driving in speed in excess of posted limits);
182. PA. CONS. STAT. ANN. § 3802 (West 2008) (prohibiting driving under the influence of drugs or alcohol in Pennsylvania).
183. Duff, supra note 103, at 60.
184. See, e.g., supra note 109 (quoting the Sexual Offences Act 2003, c.42, § 53A (Eng.)).
185. SANDERS, supra note 71, at 54-55.
186. O'Connell Davidson, supra note 78, at 209.
187. A similar phenomenon occurs in cases of speeding and drunk driving. It is possible that some people do not actually pose a risk, despite driving at high speeds or with elevated blood alcohol content; yet, because "we are notoriously prone to exaggerate our driving skills!,] and someone who is in a hurry, or who has already had a drink, is not well placed to decide wheth he can drive safely at that speed, or after another drink," it may be justifiable to adopt a general bright-line rule based on alcohol content rather than actual impairment. Duff, supra note 103, at 61.
188. SANDERS, supra note 71, at 54-55.
189. On the converse relationship between duress and consent in the criminal law of rape, see generally Anne M. Coughlin, Sex and Guilt, 84 VA. L. REV. 1 (1998).
190. See O'Connell Davidson, supra note 78, at 209-13 (describing the tendency of prostitute-users to view their sexual encounters as mutually enjoyable).
191. On the topic of educating prostitute-users regarding the harms experienced by prostituted people, see generally Iris Yen, Of Vice and Men: A New Approach to Eradicating Sex Trafficking by Reducing Male Demand Through Educational Programs and Abolitionist Legislation, 98 J. CRIM. L. & CRIMINOLOGY 653 (2008).
192. O'Connell Davidson, supra note 6, at 61.
193. Id.
194. The anticommodification literature, for example, has developed strong arguments against buying sex that do not depend on the harms caused to prostituted people.
195. See RADIN, supra note 13, at 131-36 (considering commodification and prostitution).
196. That buying sex is morally wrong operates as a side constraint to its justifiable criminalization, but it does not itself justify the criminal sanction. For insightful arguments in favor of limiting the scope of criminalization to wrongful conduct,
197. see HuSAK, supra note 66, at 66.
198. It is commonly thought that the arguments famously put forth by Lord Devlin in PATRICK DEVLIN, THE ENFORCEMENT OF MORALS 14-15 (1959), would, if sound, justify criminalizing prostitution on moral grounds alone. Yet Devlin's arguments are better understood as at least quasi-harm-based, insofar as he was concerned about the harm of societal disintegration through a lack of shared positive morality.
199. See Gerald Dworkin, Devlin Was Right: Law and the Enforcement of Morality, 40 WM. & MARY L. REV. 927, 931 (1999)
200. (noting Devlin's "equation of immorality with treason and his advocacy of the right of any state to defend against... the harm that would occur if the actual moral code of a society were allowed to be attacked and weakened"). Modern scholars have also supported morals-based legislation.
201. See, e.g., ROBERT P. GEORGE, MAKING MEN MORAL: CIVIL LIBERTIES AND PUBLIC MORALITY 47 (1993)
202. ("[L]aws that effectively uphold public morality may contribute significantly to the common good of any community...."); see also Thomas Søbirk Petersen, New Legal Moralism: Some Strengths and Challenges, 4 CRIM. L. & PHIL, (forthcoming June 2010) (examining arguments for and against the new legal moralism).
203. There are myriad other harm- or nuisance-based arguments that have been offered in support of criminalizing prostitution across the board. See, e.g., Ronald Weitzer, The Politics of Prostitution in America (describing grievances articulated by neighborhood campaigns against prostitution, including harassment of women, costs to merchants, and neighborhood decline), in SEX FOR SALE 159, 166-70 (Ronald Weitzer ed., 2000).
204. See id. at 170 ("Commercial sex in private appears to be acceptable [to the public at large], as long as it has no spillover effects in the public arena.");
205. Ronald Weitzer, Flawed Theory and Method in Studies of Prostitution, 11 VIOLENCE AGAINST WOMEN 934, 945 (2005) (arguing that street prostitutes are more vulnerable to violence than prostitutes in indoor settings).
206. Weitzer, supra note 126, at 174.
207. Id. For objections to Weitzer's interpretation of feminist arguments regarding prostitution, see supra text accompanying notes 51-60.
208. See Melissa Farley, Prostitution Harms Women Even If Indoors: Reply to Weitzer, 11 VIOLENCE AGAINST WOMEN 950, 955 (2005) ("In practice, indoor prostitution increases the trick's safety, but it does nothing to decrease psychological trauma for the prostituted woman. The social invisibility of indoor prostitution may actually increase its danger.").
209. See Richard Poulin, The Legalization of Prostitution and Its Impact on Trafficking in Women and Children, http://sisyphe.org/spip.php?article1596 (last visited Apr. 15, 2010) (arguing that "the legalization of prostitution ... generates a colossal expansion of [the prostitution] industry and of the trafficking which is its corollary");
210. see also MARY SULLIVAN, COAL. AGAINST TRAFFICKING IN WOMEN, WHAT HAPPENS WHEN PROSTITUTION BECOMES WORK? AN UPDATE ON LEGALISATION OF PROSTITUTION IN AUSTRALIA 14-16 (2005), http://action.web.ca/home/catw/attach/Sullivan-proof-01. pdf
211. (discussing the increase in illegal trafficking accompanying the expansion of the legalized prostitution markets in Australia).
212. There is, however, some debate in criminal law theory regarding this matter. In a traditional interpretation of Mill's harm principle, the fact that a person's conduct causes harm to others is a good reason in favor of criminalizing that conduct
213. See 1 FEINBERG, supra note 10, at 11
214. ("John Stuart Mill argued in effect that the harm principle is the only valid principle for determining legitimate invasions of liberty...."). In a more recent reinterpretation of the harm principle, though, "it is the harm prevented by the law, rather than the harm done by the criminal offence, that matters in determining whether the principle was satisfied."
215. John Gardner, Book Review, NOTRE DAME PHIL. REV., Aug. 3, 2008, http://ndpr.nd.edu/review.cfm?id=13805 (reviewing HUSAK, supra note 66).
216. In some respects, the latter interpretation allows for a wider scope of criminalization, insofar as it allows for criminalization of conduct that is not itself harmful. (For criticism of this latter interpretation, see
217. HUSAK, supra note 66, at 72.
218. ) In other respects, however, the latter interpretation of the harm principle restricts the scope of justifiable criminalization, for the law must actually reduce the harm that it is intended to reduce and must "do so in a way that is proportionate to the harm actually prevented." Gardner, supra.
219. In other words, I am accepting the limitations imposed by both the traditional and more recent interpretations of the harm principle discussed supra note 132.
220. As John Gardner observes, [Legislators often assume that criminalizing an activity tends to reduce its incidence, or at least tends to eradicate its worst excesses. They ignore the reality that banning an activity often drives it underground where it become [s] more profitable (and hence more attractive to appalling people) as well as harder to supervise (and hence more appalling).
221. Gardner, supra note 132.
222. BEUNDA BROOKS-GORDON, THE PRICE OF SEX 259 (2006). Curiously, BrooksGordon fails to cite any evidence in support of this claim.
223. See RACHEL DURCHSLAG & SAMIR GOSWAMI, CHI. ALLIANCE AGAINST SEXUAL EXPLOITATION, DECONSTRUCTING THE DEMAND FOR PROSTITUTION: PREUMINARY INSIGHTS FROM INTERVIEWS WITH CHICAGO MEN WHO PURCHASE SEX 3 (Ruth Durchslag et al. eds., 2008), available at http:// www.caase.org/pdf/resources/17-deconstructing-the- demand-for-prostitution.pdf
224. (reporting on the results of a study in which eighty-three percent of men interviewed stated that the threat of jail time would deter them from purchasing sex);
225. MACLEOD ET AL., supra note 70, at 26-28 (explaining that the most effective deterrents were, not surprisingly, the most condemnatory and shaming penalties, such as being added to a sex offender registry; having their picture or name on a billboard, local newspaper, or the Internet; or having to spend time in jail).
226. See, e.g., Sweden to Evaluate Effects of Prostitution Law, LOCAL, Apr. 24, 2008, http://www.dielocal.se/11322/20080424 (describing the Swedish inquiry into the effects of Sweden's ban on prostitution).
227. See JULIE BINDEL & LIZ KELLY, LONDON METRO. UNIV., A CRITICAL EXAMINATION OF RESPONSES TO PROSTITUTION IN FOUR COUNTRIES: VICTORIA, AUSTRALIA; IRELAND; THE NETHERLANDS; AND SWEDEN 72-79 (2003) (reporting increasing public support a significant decrease in street prostitution, and a decrease in Sweden's attractiveness to traffickers);
228. Ekberg, supra note 2, at 1193, 1199 (noting a decrease in the incidence of street prostitution and a positive effect in reducing trafficking).
229. See BINDEL Sc KELLY, supra note 138, at 78 (noting a marked decrease in prostitution-related violence since the passage of Sweden's law).
230. Id. at 25.
231. Victoria Nourse puts the point well: "Feminist reforms have a kind of built-in, albeit unpredictable, capacity for failure; like the apple harboring the worm, they harbor the possibility of their own undoing."
232. Victoria Nourse, The "Normal" Successes and Failures of Feminism and the Criminal Law, 75 CHI.-KENT L. REV. 951, 953 (2000).
233. For this reason, Aya Gruber is correct to counsel caution in using progressive feminist reforms to address violence against women, for, as she notes, "[e]ven 'progressive' criminal reforms rest on the assumption that proper education of state actors will enable the criminal system to empower rather than subordinate minorities.... [H]owever well-intentioned, most criminal law reforms end up becoming yet another procedural vehicle for warehousing the worst off."
234. Aya Gruber, The Feminist War on Crime, 92 IOWA L. REV. 741, 822-23 (2007) (footnote omitted). Yet as Nourse points out, "[t]his does not mean that reform is futile, but it may simply mean that reform demands perpetual vigilance."
235. Nourse, supra, at 978.
236. The unintended consequences of criminalizing the purchase of sex include the harms that may be suffered disproportionately by men who are already socially disempowered. Given the negative uses of criminal law throughout history and still today, such as racist law-enforcement policies, there is reason to resist using the criminal law as a tool for positive social change.
237. See generally MICHAEL TONRY, MALIGN NEGLECT-RACE, CRIME, AND PUNISHMENT IN AMERICA (1995)
238. (discussing the disparate impact crime-control policies can have on disadvantaged communities);
239. Angela J. Davis, Benign Neglect of Racism in the Criminal Justice System, 94 MICH. L. REV. 1660, 1663 (1996) (reviewing TONRY, supra)
240. (discussing racial discrimination within the criminal justice system). Since racism is fundamentally inconsistent with feminist commitments to abolish all wrongful structural inequalities, feminists should resist any reforms that will tend to exacerbate racism. See DEMPSEY, supra note 9, at 129-35. This risk of unintended consequences poses a serious objection to feminist abolitionism. Yet, it is important to bear in mind that feminist-abolitionist reforms like the Swedish model, if adopted in the United States, would not expand the criminal law's power; it would reduce it At present, in most jurisdictions throughout the United States, both sellers and buyers are criminalized. Feminist abolitionist reforms would therefore restrict the power of the criminal law by decriminalizing people who sell sex. Thus, to the extent that current criminal laws are being used in racist and other problematic ways (e.g., by targeting disempowered women of color who sell sex, while allowing relatively powerful middle-class white men to go free), the proposed reforms would improve the criminal justice system by limiting its scope.
241. Farley, supra note 130, at 955.
242. See Nourse, supra note 141, at 978 ("Statutory reform rarely ends anything. It may transform the debate, yet it would be naïve to believe that it could 'end' a matter as ancient as sexism. This does not mean that reform is futile, but it may simply mean that reform demands perpetual vigilance.").
243. It is difficult, of course, to know whether this long-term goal will be achieved, particularly in light of the fact that there has never been a widespread adoption of the feminist abolitionist program. If, in the end, abolition does more good than harm, then this consideration lends further support to my argument While abolitionists adopt an optimistic stance toward unknown contingencies (perhaps to the point of being, as Gloria Steinem puts it "hopeaholics"), nonabolitionists remain rather more pessimistic.
244. Gloria Steinem, I'm a Hopeaholic. There's Nothing George Bush Can Do About It, GUARDIAN (London), Sept 13, 2005, at 28.
245. For insightful reflection on the difficulties of securing reliable data regarding prostitution and sex trafficking, see Hila Shamir's discussion in Halley et al., supra note 6, at 405-06.
246. See, e.g., BUMILLER, supra note 39, at 2
247. (acknowledging the importance of recognizing "the limitations of using state power to advance the interests of women");
248. Halley et al., supra note 6, at 337-40 (discussing the limitations of the criminal law in effectively combating the abuses feminists seek to eliminate and criticizing those who imagine criminalization to be a perfect solution to such abuses);
249. Nourse, supra note 141, at 977-78 (concluding, from an analysis of particular feminist reforms of criminal law, that often such reforms are less effective than feminists would hope because "[s]ocial norms of inequality have tended to perpetuate themselves in the criminal law").
250. See Halley et al., supra note 6, at 341 ("It is very odd, then, to see across the range of [feminist] projects ... a strong trend to advocate ... very state-centered, topdown, sovereigntist feminist rule preferences [emphasizing criminal enforcement]."). For additional consideration of reasons why feminist abolitionism should be wary of expanding the scope of criminal law, see supra note 141 and accompanying text See also Halley et al., supra note 6, at 337 (expressing concern regarding the exercise of discretion and interpretation of injustices in the administration of the criminal justice system).
251. See supra note 142 and accompanying text.