Paid Sex: From Criminal to Labor to Corporate Law

Abstract

The topic of sex work/prostitution is so contested that there is not even an agreement on the appropriate name to refer to it. While sex work conveys in the reader/listener the idea that the writer/speaker believes sex work is legitimate work, prostitution conveys the idea of exploitation and the need of some form of illegality. It seems that both the scholarship and legal frameworks around sex work/prostitution have not been able to depart from the labor/exploitation binary. Both sides can show representatives from the sex work industry vehemently advocating one or the other position. They all claim to be speaking against exploitation of women and on behalf of women. Both models, however, leave women disempowered and subordinated.

This paper advocates for a model where the focus is not on labor but on autonomy. It shifts the discussion on sex work from labor to corporate law. It proposes alternative legal and economic frameworks aimed at working from the perspective sexual workers who advocate for the regulation and protection of their rights. The proposed model would use the framework of cooperatives or equivalent micro business models where participants are self-employed and enjoy a legal status that allows them to participate in formal markets. Using a hypothetical model, but enriched with actual experiences of sex workers, it will analyze what would happen if sex work was treated as a commercial provision of sexual services.

Sex co-ops or solo business models may not work in all countries, but the paper will argue that it may be a good model to explore in countries where: 1) there are stable co-op or equivalent business models in place; 2) sex workers are not criminalized, but employing or facilitating prostitution is illegal; 3) the labor law framework has a weak overseeing system of compliance that makes employees easily vulnerable; 4) sex workers are well organized; and 5) informal economies are a strong component of the country’s economic system.

Part II of this paper refers to sex work and agency. It analyses the conflicting views within feminists voices on what agency means within the sex workers debate. It shows that the only way that women’s rights advocates could support criminalization of the demand for sexual services is by eliminating the possibility of agency completely from women in the sex industry. This is done by equalizing sex work with sex trafficking, or reducing the importance of agency by arguing that sex work increases sex trafficking. Part II ends with a brief analysis of the complexity of using criminal law to defend women’s rights. Part III describes the different business models of sex work in Chile and Colombia today and the current legal framework under which sex work is provided. Part IV analyzes what some sex workers in Colombia and Chile want, based on conversations with organizations of sex workers in those countries. Part V analyzes the four variables under which a business model for sex work could be feasible and practical. It also analyses the cooperative model and the solo business model available in both countries. Part VI concludes that there are legal conditions in both countries to shift the focus from labor to business law, and it provides some reflections on the advantages of shifting the language from labor to business law regardless of whether the models can be implemented or not.

Keywords: sex work, prostitution, labor law, agency, women's rights