Prostitution, Hustling, and Sex Work Law and Policy
PROSTITUTION, HUSTLING, AND SEX WORK LAW AND POLICY
Prostitution, hustling, and sex work are forms of labor, not erotic preferences or gender identities. While prostitution and hustling generally refer to the exchange of sex for money (or for nonsexual goods or services), sex work is a broader category that also includes stripping, erotic dancing, and labor in the pornography, peep show, and telephone sex industries. Self-identified LGBT, queer, and straight people work in sex industries, offering varieties of commercial sex both in line with and out of line with their own noncommercial sexual interests. LGBT people also constitute audiences and markets for commercial sex, usually but not always for the types of sex that they prefer to have in noncommercial contexts. Commercial sex (both cross-sex and same-sex) and noncommercial same-sex sex have been stigmatized and criminalized in ways that conflate and confuse these distinct but overlapping types of consensual behavior. LGBT involvement in prostitution, hustling, and sex work has been subject to particularly intense forms of legal policing and social regulation in certain contexts.
The first British North American colonial laws against prostitution, local ordinances criminalizing the running of "bawdy" houses (1672) and "nightwalking" (1699), failed to curtail the growth of commercial prostitution in the United States. With the rise of a market economy in the late eighteenth and early nineteenth centuries, traditional agrarian ways of life gave way to wage-labor systems in increasingly commercial and urban settings, which featured significant prostitution practices. Meanwhile, on the western frontier of the nineteenth century, predominantly male communities of entrepreneurs, laborers, miners, railroad workers, and soldiers provided large markets for prostitution. In Gay American History (1992), Jonathan Katz documented examples and allegations of male same-sex prostitution in prison reform literature in the 1820s, in Montana Territory court records in the 1870s, and in various other documents (that also link prostitution, lesbianism, and transgenderism) from the late nineteenth century.
The steady rise of commercial red-light districts, along with slavery's forced prostitution, betrayed a Victorian era sensibility sanctioning prostitution as a "necessary evil" providing sexual "outlets" for men out-side of marriage and away from home, though such social sanction rarely extended to same-sex prostitution. Reform movements beginning in the 1830s, however, fought against prostitution. By the early twentieth century, most states had criminalized the actions of not only prostitutes (for solicitation and sale), but also those who ran houses of prostitution, promoted prostitution (including pimps), or forced or enticed people to engage in prostitution. Among those arrested were many women who had formed intimate and erotic bonds of sisterhood with other prostitutes. Male prostitution less frequently involved pimps, brothels, and physical compulsion, and so may have been less regulated than female prostitution in these respects. Somewhat less common were laws against "johns" (those who purchased the services of prostitutes). Prostitutes (male and female) and johns may well have been arrested more frequently for "disorderly conduct" than for offenses related specifically to prostitution, and this likely was the case especially for same-sex prostitution (which was not always recognized as prostitution under the law).
In the nineteenth and early twentieth centuries, anti-vice and social purity societies often took the lead in ensuring that antiprostitution laws were enforced. Sometimes deputized by local government, sometimes wielding political influence to secure police cooperation, antivice societies and their allies policed individuals and businesses to curb behavior and weaken institutions that were perceived to threaten the moral order valued by reformers. Campaigns against commercial sex also concerned themselves with health, hygiene, and temperance. Reform movements policing prostitution also worked to regulate nonmarital, interracial, and same-sex sexual behaviors. Given that the neighborhoods, parks, saloons, restaurants, and boardinghouses frequented by LGBT people tended to be frequented by prostitutes and their customers, the social reformers who policed prostitution had a significant impact on LGBT cultures and especially on the immigrants, workers, and poor people who participated in these cultures.
In Gay New York (1994), for example, George Chauncey argues that before, during, and after World War I the antiprostitution campaigns of the Society for the Prevention of Crime, the City Vigilance League, the Committee of Fourteen, and the Society for the Suppression of Vice discovered the city's extensive gay subcultures and began to target male prostitution. Especially with the mobilization of military forces during World War I and the successes of various efforts made against female prostitution, reformers shifted some of their anxieties to "male perverts," who, it was feared, would seduce young troops in the absence of an adequate supply of seductive, solicitous women. Gay men and the establishments catering to them, including restaurants, bathhouses, theaters, and other places of amusement were intensively policed. Chauncey reports that the number of men convicted for homosexual solicitation in Manhattan increased eightfold during the period from 1916 to 1920.
In The Lost Sisterhood (1982), Ruth Rosen argues that reformers' attention to prostitution and the anxieties surrounding "white slavery" peaked in the years from 1911 to 1915, with a coalition of antivice groups succeeding in closing red-light prostitution districts and policing commercial sex. In 1910 the federal Mann Act was passed to address racist and nativist anxieties about white women being lured away from home communities into prostitution by nonwhite and immigrant men. The Mann Act prohibited transporting women across state lines for "immoral purposes," but it left most regulation of prostitution and public sexual activity to state and local law enforcement. Red-light district abatement laws passed by states and cities across the country worked to regulate the sexual, commercial, and working-class territories of urban America.
According to William Eskridge Jr. and Nan Hunter's Sexuality, Gender, and the Law (1997), prostitution laws in the United States changed little in the following decades (until the 1970s). These laws were available for use by local and state authorities not only to police samesex prostitution and LGBT people engaging in cross-sex prostitution, but also to police LGBT bars, restaurants, and other commercial establishments. Police, for example, frequently justified raids on lesbian bars in the 1950s and 1960s by claiming that cross-sex solicitation occurred on or near the premises and that prostitutes frequented these establishments. Antiprostitution laws governing the circumstances under which women could dance and serve alcohol affected lesbian culture in significant ways. Meanwhile, discourses that linked prostitution and lesbians encouraged officials to use laws against the former to harass and attack the latter.
Developments since the 1970s
According to Eskridge and Hunter, since the 1970s many states have revised their laws against prostitution. Nevada decriminalized prostitution, but other states expanded the reach of their laws to cover, for example, nonvaginal intercourse, other forms of sexual contact, same-sex and transgender prostitution, and payment for sex (in those states that had not already criminalized the actions of johns). There is no reason to believe that recent court rulings covering noncommercial private sex will soon be extended to apply to prostitution.
In her 1984 essay "Thinking Sex," Gayle Rubin places prostitution with pornography, promiscuity, and homosexual sex in the low status region of the contemporary American sex hierarchy while heterosexual, noncommercial, and monogamous sex occupy the high status regions. Financial exchange in combination with other kinds of low status sex (including same-sex sex) raises the risks of arrest and stigmatization, especially if the sexual behavior is brought to the attention of law enforcement by vigilante citizens. Transgender prostitutes appear to be subject to particularly high risks.
Law enforcement continues to conflate consensual same-sex acts with sex for money. Men cruising for anonymous, consensual, same-sex sexual encounters are often charged under antiprostitution or antisolicitation laws, even though there may not be any money exchanging hands. Given the consensual, victimless nature of sexual cruising and prostitution, which means that participants are unlikely to press charges, police frequently resort to entrapment to make arrests for both. It is often difficult to distinguish instances of consensual for-profit sex from consensual not-for-profit sex, and an accurate distinction often matters little to law enforcement officers levying the charges. Antisolicitation, antivagrancy, and disorderly conduct charges are still used to regulate the public activity of prostitutes, the poor and unemployed, and same-sex cruisers, and charges are applied at the considerable discretion of local law enforcement.
In part because of its illegal or extralegal status, the sex industry can have horrible working conditions. Without state oversight, government regulations, or legal tools to address unsafe and unfair situations, sex workers are cheated, mistreated, exploited, physically harmed, and killed. Working outside of or just within legal limits, many sex businesses spend a disproportionate amount of time and money trying to stay in business and little on the needs of their workers. Others are profitable and still exploit workers. There is little public pressure for sex businesses to share profits with illegal employees, and there are few protections for sex industry clients and consumers. Yet despite the poor working conditions and the often-illegal nature of sex work, many people of all sexual and gender orientations are employed in the sex industries by choice and by necessity. Even more people constitute the massive audiences that sustain the sex industry, with few consumer protections to screen out inferior, unsafe, and dangerous products and services. Since the 1970s, several sex positive organizations have formed to represent, promote, and empower sex workers of all gender, and sexual types, calling, for example, for the legalization of sex work. Among the more influential groups are COYOTE (Call Off Your Old Tired Ethics, 1973), USPROS (US Prostitutes, originally New York Prostitutes Collective, 1979), and the Gay Men's Health Crisis's CASH (Coalition Advocating Safer Hustling, 1993–1996).
Some recent feminists and lesbian-feminists, among them Sheila Jeffreys, Andrea Dworkin, and Catharine MacKinnon, deplore the entire enterprise of commercial sex, labeling it exploitative and dangerous to women. They seek to protect and rescue sex workers from the violence, abuse, and humiliation they find inherent and pervasive in the sexist, male-dominated sex industry. Arguing that pornographic performances and images in particular constitute a direct assault on women (and frequently sidestepping questions about male prostitution), they disagree with the idea that sex workers might find empowerment or satisfaction in their work, and they assert that theorists are mistaken in "romanticizing" sex work and pornographic products. While they succeeded in enacting some local antipornography legislation in the 1980s, they also precipitated the feminist sex wars, in which prosex feminists, including many lesbians, came to the defense of the pleasures and possibilities of sex work.
Antipornography feminists have formed alliances not only with the New Right but also with urban gentrifiers. In the 1990s local officials in New York City used zoning laws to reinvent Times Square, destroying in the process one of the world's great commercial sex districts, a lively intersection of people from all classes, races, and localities, not to mention a neighborhood with a significant amount of commercial LGBT space and public LGBT culture. While many cities, towns, and counties restrict "adult" business to certain areas, arguing that their presence will have adverse effects on the surrounding community, there is little nonanecdotal evidence to support these assumptions. Nevertheless, prostitution, hustling, and sex work remain vulnerable to local, state, and federal government action.
Within LGBT communities, there is no uniform opinion or agreement regarding sex industry law and policy. Commercial sex and noncommercial same-sex cultures share territorial and criminal histories that link their distinct yet overlapping practices. The regulation of these territories has involved combinations of citizen and state surveillance. Decriminalization of same-sex sex, public sex, and prostitution would ease the containment and policing that continue to constrain consensual sexual practices in the United States.
Chauncey, George. Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890–1940. New York: HarperCollins, 1994.
Eskridge, William N., Jr., and Nan D. Hunter. Sexuality, Gender, and the Law. Westbury, N.Y.: Foundation Press, 1997.
Jeffreys, Sheila. The Idea of Prostitution. North Melbourne, Australia: Spinifex, 1997.
Katz, Jonathan. Gay American History: Lesbians and Gay Men in the U.S.A., A Documentary History. Rev. ed. New York: Meridian, 1992.
Kennedy, Elizabeth Lapovsky, and Madeline D. Davis. Boots of Leather, Slippers of Gold: The History of a Lesbian Community. New York: Routledge, 1993.
Penn, Donna. "The Sexualized Woman: The Lesbian, the Prostitute, and Containment of Female Sexuality in Postwar America." In Not June Cleaver: Women and Gender in the Postwar Period, 1945–1960. Edited by Joanne Meyerowitz. Philadelphia: Temple University Press, 1994.
Rosen, Ruth. The Lost Sisterhood. Baltimore: Johns Hopkins University Press, 1982.
Rubin, Gayle. "Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality." In Pleasure and Danger: Exploring Female Sexuality. Edited by Carole S. Vance. Boston: Routledge and Kegan Paul, 1984.
Polly J. Thistlethwaite
see alsocrime and criminalization; discrimination; employment and occupations; employment law and policy; federal law and policy; prostitution, hustling, and sex work; public sex; sex wars; tourism.