## 1. Pornography


### 1.1 Why Do Feminists Single Out Pornography?



Anne Eaton argues that pornography shows the subordination of women to
be sexually pleasurable and, for this reason, it is more effective
than other representational materials in shaping viewers'
attitudes and desires (Eaton 2007: 680). Pornography engages and
trains us to be sexually aroused at images depicting women as social
inferiors, and thereby reinforces the "mechanisms, norms, and
myths" that sustain women's unequal social status (679).
Eaton acknowledges that not all pornography eroticizes inequality and
focuses her critique on "inegalitarian pornography". She
hypothesizes that the harms caused by exposure to inegalitarian
pornography range from increasing rates of sex discrimination, sexual
harassment and assault to degrading the status of women. Eaton
recognizes that her causal model requires empirical support, and that
the studies needed to confirm or refute it have not yet been done.
Because inegalitarian pornography is not the only kind of mass culture
that promotes sexist attitudes and behavior, it can be difficult to
separate out the effects of sexist materials that are sexually graphic
from those that are not.



In the early years of the second-wave feminist movement, activists
campaigned against all violent and sexist popular media. Carolyn
Bronstein argues that the shift from condemning violent and sexist
media images to condemning only pornography (even nonviolent porn)
involved two main factors. First, radical feminists began to view the
proliferation of hardcore pornography as part of the wider backlash to
advances in women's equality. The saturation of society with
Playboy, Hustler, Deep Throat, adult bookstores, and eventually cable
television and video pornography in the 1960s and 1970s was
interpreted by some activists as an orchestrated campaign to keep
women in their assigned social sphere. Some feminists accused their
opponents of disseminating uniquely seductive and powerful misogynist
propaganda that falsely and maliciously depicted women as desiring and
deserving of coercive and degrading sexual use. Second, Bronstein
alleges that, by targeting pornography as the culprit rather than
sexism in the media, the feminist anti-pornography movement took
advantage of the conservative climate of the 1980s. Religious social
conservatives, in particular, had become increasingly critical of the
sexual revolution of 1960s, and they saw the growth of the pornography
industry as evidence of their country's cultural shift. The
convergence of aims among feminists and some conservatives enabled the
former to garner financial support from non-feminist, and even
anti-feminist organizations (Bronstein 2011: 322).



The anti-pornography movement's groundwork culminated in the
development of a new approach for restricting pornography, which did
not rely on the government's censorship of obscene speech.
Catharine MacKinnon and Andrea Dworkin wrote a model anti-pornography
ordinance, which was soon adopted by the city of Indianapolis with the
help of evangelical Christian organizations (Bronstein 2011: 324). The
ordinance defined pornography as the "sexually explicit
subordination of women, graphically depicted, through pictures and/or
words", and it allowed potential victims to bring civil lawsuits
against the producers and distributors of materials with the specified
content. In response, many free speech activists organized to
challenge this new law, and similar ones proposed in cities around the
country. In 1986, the Supreme Court found the Indianapolis ordinance
to be unconstitutional and, not long after, the feminist
anti-pornography movement fell into disarray.



Although the second-wave feminist anti-pornography movement has now
evolved into the third-wave sex-positive feminist movement, a number
of feminist academics are attempting to revive societal opposition to
pornography (Eaton 2007; Langton 2009; Hornsby 1995; Brison 1998). By
utilizing the tools of philosophical analysis and empirical social
science, feminist academics aim to strengthen the intellectual
foundations of the anti-pornography movement. With a better
understanding of the impact of pornography on individuals and society,
and the psychological and social mechanisms that can explain its
influence, communities can mobilize more effective responses to its
production, distribution, and consumption. Now that the Internet
enables pornography to reach wider audiences, its impact may be
greater than ever.



Helen Longino was one of the first feminist philosophers to articulate
a theory of how pornography harms women. She argued that pornography
shows men and women taking pleasure in activities that objectify women
and treat women as less than human. By depicting female subjects as
dehumanized objects, pornography promotes the idea that women can be
treated without moral regard (i.e., raped and subjugated). Longino
writes



> 
> 
> What's wrong with pornography, then, is its degrading and
> dehumanizing portrayal of women, and *not* its sexual content.
> Pornography, by its very nature, requires that women be subordinate to
> men and mere instruments for the fulfillment of male fantasies
> (Longino 1980: 45)
> 
> 
> 



Following the philosopher Immanuel Kant, Longino assumes that sex is
morally problematic because it is difficult, if not impossible, to
have sex without treating another person as a "mere means"
to our own satisfaction. Sexual desire is irrational and leads us to
reduce others to their sexual body parts, and thus is objectifying,
dehumanizing, and degrading. Longino adds a feminist element to Kant
by arguing that, because men have greater social power than women, men
are able to use women as instruments to satisfy their sexual ends.
Pornographic depictions of heterosexual sex, then, glorify and promote
the immoral and subordinating treatment of women by men.



Catharine MacKinnon and Andrea Dworkin's well known analysis of
pornography similarly incorporates a Kantian model of sexual morality
with a feminist spin (Shrage 2005). Heterosexual acts are inherently
violent to women in that they involve men treating women as
interchangeable objects whose integrity and boundaries are not
respected. Ordinary heterosexual acts, for Dworkin, involve men
invading and occupying women's bodies (Dworkin 1987).
Pornography, then, is equated with visual evidence and documentation
of the abuse of particular women, and those who view it collaborate in
their violation. According to MacKinnon, women in patriarchal
societies are not free to refuse sex with men, and therefore their
participation in sex with men is not fully consensual. Sex with
persons incapable of giving genuine consent, made into a public
spectacle via pornography, expands the temporal and spatial parameters
of the crime. When women view pornography they often relive their own
violation and public humiliation. Therefore, pornography has the power
to repeatedly traumatize women and does not merely record a past
abuse, according to MacKinnon and Dworkin. Adult pornography is
similar to child pornography, which records and amplifies the abuse of
molested children. Both allow others to participate in and exploit
someone's victimization for sadistic pleasure. Moreover,
MacKinnon contends that adult pornography is a tool that can be used
to obtain a woman's cooperation with her abuser, just as child
pornography can with a child. She writes that pornography is used by
men "to train women to sexual submission" (MacKinnon 1987:
188).



MacKinnon also claims that "specific pornography does directly
cause some assaults. Some rapes *are* performed by men with
paperback books in their pockets" (MacKinnon 1987: 184). And
because "pornography conditions male orgasm to female
subordination" (MacKinnon 1987: 190), it indirectly and
subconsciously elicits from men controlling sexual behaviors.
Pornography shapes both female and male sexual desire into
victim/abuser roles, and represents predatory sexual behaviors as
natural forms of sexual and gender expression. Pornography is
therefore harmful to men who consume it, as well as to women who have
sexual contact with men, on and off screen. In MacKinnon's
words, pornography represents



> 
> 
> sex forced on real women so that it can be sold at a profit to be
> forced on other real women; women's bodies trussed and maimed
> and raped and made into things to be hurt and obtained and accessed,
> and this presented as the nature of women; the coercion that is
> visible and the coercion that has become invisible--this and more
> bothers feminists about pornography ... pornography causes
> attitudes and behaviors of violence and discrimination that define the
> treatment and status of half of the population. (MacKinnon 1987:
> 147)
> 
> 
> 



For these reasons, anti-pornography feminists generally hold that
pornography is not simply a sexist nuisance that can be addressed by
calls for consumer boycotts and corporate responsibility. Instead,
pornography "nourishes sexism" (Longino 1980: 54) and
disrespect for women in ways that eventuate in violations of
women's basic moral and civil rights.



Longino argues that pornography should not be given the same legal
protection as other expressive materials. Along with MacKinnon, she
proposes that pornography should be restricted, not as a form of
obscene expression, but as a product that can cause serious injuries
to women, individually and as a group. Longino contends that liberal
toleration of pornography constitutes acceptance of the immoral
treatment of women (Longino 1980: 48). MacKinnon and Dworkin take this
argument a step further and allege that pornography often records acts
of criminal rape and, therefore, its dissemination further compounds
the injuries of such criminal acts (MacKinnon 1987: 128, 148-49;
Dworkin 1979: 201). Toleration for pornography disempowers all women
because it perpetuates a climate in which women constantly feel
threatened by rape, which makes it impossible for them to exercise the
formal rights they have won. MacKinnon and Dworkin's model
ordinance sought to make "pornography actionable as a civil
rights violation" so that women would have legal recourse when
pornographic materials prevent the exercise of their rights or cause
personal injuries (MacKinnon 1993: 22, 121, n. 32). By protecting the
speech of pornographers and shielding them from liability, according
to MacKinnon, the state fails to protect women's equality and
civil rights.



MacKinnon and Dworkin offer only anecdotal empirical support for their
claims about the harmfulness of pornography. But their work inspired a
number of social scientists to conduct controlled studies to find more
empirical support for their claims. Reviewing the social science
literature available at the time, Diana Scully writes



> 
> 
> the proliferation of cultural products, like pornography, intensifies
> the quantity and quality of violence in men's fantasies.
> Further, particularly when women are depicted as receiving pleasure
> from the violence directed at them, pornography trivializes rape and,
> thus, may encourage more men to act on their fantasies. Armed with the
> myths celebrated in violent pornography, such as women secretly want
> to be raped, men who rape can and do believe that their behavior is
> within the normative boundaries of the culture. (Scully 1990: 155)
> 
> 
> 



Scully's own research compares the consumption of pornographic
materials by convicted rapists with a control group of felons.
Although she notes some problems with her research design, she
concludes that her



> 
> 
> data do establish that the majority of convicted rapists were familiar
> with pornography and that their use of such material was somewhat
> greater than that of other felons. (Scully 1990: 154)
> 
> 
> 



In their review of pornography research, Neil Malamuth, Tamara
Addison, and Mary Koss report that



> 
> 
> The current findings do suggest that for the majority of American men,
> pornography exposure (even at the highest levels assessed here) is not
> associated with high levels of sexual aggression...But among
> those at the highest "predisposing" risk level for sexual
> aggression (a little above 7% of the entire sample), those who are
> very frequent pornography users (about 12% of this high risk group)
> have sexual aggression levels approximately four times higher than
> their counterparts who do not very frequently consume pornography.
> (Malamuth, Addison, and Koss 2000: 85)
> 
> 
> 



In a more recent review of the social science literature, Christopher
Ferguson and Richard Hartley report that



> 
> 
> Evidence for a causal relationship between exposure to pornography and
> sexual aggression is slim and may, at certain times, have been
> exaggerated by politicians, pressure groups and some social
> scientists. Some of the debate has focused on violent pornography, but
> evidence of any negative effects is inconsistent, and violent
> pornography is comparatively rare in the real world. Victimization
> rates for rape in the United States demonstrate an inverse
> relationship between pornography consumption and rape rates. Data from
> other nations have suggested similar relationships. (Ferguson and
> Hartley 2009)
> 
> 
> 



Although Ferguson and Hartley do not discuss studies that consider
only inegalitarian pornography, as Eaton's work suggests, they
discuss a 2004 study that "found that pornography protects
against negative attitudes toward women", and a 2007 study that
"found no relationship between pornography consumption and
negative attitudes toward women". However, the 2004 study
indicates, "pornography consumers may be more prone to
benevolent sexism, which involves beliefs that women should be
protected from harm" (2009: 326). Contrary to Longino and
MacKinnon, pornography does not seem to "nourish sexism"
in its malevolent forms.



Deborah Cameron and Elizabeth Frazer question whether any accounts of
the causal properties of pornography are helpful or illuminating. They
argue that such accounts assume a deterministic model of human
behavior, in which men lose control over their behavior and respond
somewhat mindlessly to pornographic stimuli (Cameron & Frazer
2000: 248-251). The idea that men simply imitate what they see
in pornography, or are conditioned to behave in certain ways through
exposure to pornography, implies that men are not able to creatively
and critically interpret pornographic materials. Although some men may
unthinkingly copy what they see, or may even become
"addicted" to sexual violence through pornography, these
men are the exception, not the rule (Cameron & Frazer 2000: 243).
By treating sexual violence as a product of exposure to pornography,
feminists promote a view that relieves sexual predators of
responsibility for their actions, and blames their actions instead on
expressive materials or the pathological conditions they allegedly
cause. Although causal theories invoking the loss of individual
control through "imitation" and "addiction"
may be useful to defendants in sexual assault and murder cases,
Cameron and Frazer point out that these theories undermine the
feminist goal of showing that sexual violence is a function of
cultural norms and structural inequalities, rather than mental
debilitation or disease (Cameron & Frazer 2000: 248). Ironically,
causal models may engender social sympathy for the perpetrators of
sexual violence and make it difficult to punish them (Cameron and
Frazer 2000: 247). Cameron and Frazer conclude that feminists can be
critical of "the discourses which inform sexual practice"
and imagine alternative discourses, without promoting problematic
models of human behavior (Cameron & Frazer 2000: 253).



Not all feminist philosophers concur with the feminist critique of
pornography. While agreeing that the content of pornography condones
the objectionable treatment of women, Ann Garry was one of the first
to question whether pornography should be held responsible for
pervasive gender-based violence and discrimination. Garry writes



> 
> 
> Much of the research on the effects of pornography indicates that
> *any* effect it has--positive or negative--is short
> lived. (Garry 1978: 404)
> 
> 
> 



Garry also questions whether treating a woman as a sex object is
always bad, and suggests that pornography succeeds in harming women,
in part, because viewers assume that sex is generally harmful to women
(Garry 1979: 136-37; see also Garry 2001). Garry encourages
feminists to support the production of non-sexist pornography rather
than try to suppress pornographic materials.


### 1.2 Do Pornographic Works Silence and Subordinate Women?



MacKinnon and Dworkin's model ordinance captured the prevailing
feminist view that pornography is a form of hate speech against women,
which not only triggers sexual aggression in men but also desensitizes
others to the suffering of the victims. MacKinnon writes, "Women
who charge men with sexual abuse are not believed. The pornographic
view of them is: they want it; they all want it" (MacKinnon
1987: 191). When they communicate their unwillingness to participate
in a sexual activity, their interlocutors will infer that they are
misreporting their desires. In this way, pornography silences women,
because it reinforces the prejudice that women are dishonest or coy
when they express little or no sexual interest in men who pursue
sexual contact with them. Similarly, when a juror listens to the
testimony of a sexual assault victim, his perception of her sincerity
will be skewed by his exposure to pornography (Langton 2009: 297). On
this view, pornography is a mechanism that can be wielded to deny
women their equal right to free speech, social respect, and personal
security, and thus subordinates and silences them.



Rae Langton deploys the tools of speech act theory to elaborate
further how pornography silences and subordinates women (Langton 1995:
215). Langton points out that pornographic words and images, like
utterances in general, are a form of social action. The literal
content (locutionary force) of a pornographic work includes the
representation of a particular sex acts, which have the effect
(perlocutionary force) of arousing some viewers and shaping their
attitudes toward women. The illocutionary force of a pornographic work
pertains to the social actions performed in depicting sex and women,
such as informing, commanding, entertaining, approving, and so forth.
For example, a posted sign with the words "Whites Only"
performs the social act of commanding and enforcing racial segregation
in a context with certain kinds of formal or informal social rules
involving racial status. Similarly, a pornographic work may perform
the function of recommending or approving certain sexually predatory
behaviors in a context with certain kinds of social rules about the
status and entitlements of the character types shown. The
illocutionary force of a particular speech act, sign, or expressive
work depends on a variety of factors, including the intentions of the
author and the linguistic and social conventions that link words with
particular meanings and social practices. A "Whites Only"
sign placed on a laundry basket performs a different illocutionary act
than one placed on a drinking fountain or bus seat. A successful
speech act, where an audience gets what a speaker intends to
communicate or do, depends on various historical, legal, and other
features of the context of use (Saul 2006b; Bianchi 2008; Mikkola
2008). Langton argues that there are good, though not conclusive,
reasons to think that the background factors that enable pornographic
texts to endorse, recommend, or command hostile acts against women are
in place. However, she also suggests that the illocutionary force of
pornography may be blocked effectively by the speech acts of its
critics, rather than by censorship (Langton 1995: 216).



Jennifer Hornsby also deploys speech act theory to explain how
pornography silences women. Hornsby maintains that pornographic
materials reinforce ideas about women that deprive their utterances of
their ordinary illocutionary meaning (Hornsby 1995: 227). For example,
pornographic works may convey the idea that the women whom men find
sexy are eager to satisfy their sexual appetites, so that when these
women say "no", their utterance constitutes not an act of
refusal but an act of teasing. In this way, pornography reinforces
social codes that allow men to systematically misread and discount
women's speech. Women may be silenced, then, not by having their
speech suppressed but by changes to the background conditions
necessary for successful speech acts, such as refusal. If pornography
interferes with the ability of women to communicate, then women cannot
contest the harm of pornography with more speech, but only by
suppressing pornographic materials.



One implication of the claim that pornography causes men to misread
women's communicative acts is that it potentially offers a
defense to sexual predators who claim they sincerely believed their
victims intended to convey something opposite to the ordinary meaning
of their utterances. Mari Mikkola argues that this worry does not
undermine Langton's and Hornsby's analysis of pornography.
Instead, this consequence of their account should force us to rethink
how much a conviction in a rape case should depend upon the accused
having malicious motives or intentions (Mikkola 2011). Mary Kate
McGowan et al. argue that



> 
> 
> even if consuming pornography causes some men to believe that women
> are consenting (when they are not), this is insufficient to show that
> these beliefs are reasonable. Mere belief in consent does nothing to
> undermine a rapist's responsibility (in most jurisdictions
> anyway) unless that belief is also reasonable. (McGowan et al. 2011:
> 145)
> 
> 
> 



Yet, if pornography can disable or frustrate ordinary communication,
how should reasonable and moral people ensure that their sexual acts
are consensual? Campaigns against sexual assault that propose simple
rules, such as "no means no" and "yes means
yes", essentially instruct us to equate the illocutionary force
of an utterance with its literal meaning during a sexual encounter. If
pornography has the power to rob speech of its ordinary meanings, then
a cautious and reasonable way to secure consent for a sexual act might
require defaulting to literal interpretation, with the implication
that those who do not will be subject to criminal charges and
punishment.



Susan Brison explores the subordination thesis and contends that
pornography is a form of group libel that may undermine the autonomy
of the target group. By spreading falsehoods about women, pornography
narrows the range of social options and opportunities that women have
available to them. Members of groups that are socially vilified by
hate literature have a more difficult journey pursuing their aims or
attempting to perform particular social roles (Brison 1998). Langton
argues that, even if pornography is about fantasy and is to be
understood as fictional, it can misinform. According to Langton,
pornography projects the beliefs and fantasies of those who are
socially powerful, and because those with less social power may
conform their behavior to those beliefs, the beliefs become
self-fulfilling. In this way, pornographic speech harms women by
changing the world it appears to describe (Langton 2009: 301-9).
McGowan similarly argues that pornography functions as "an
erroneous but authoritative judgment about women's
natures", in the way an umpire's call establishes the
facts about the events of a game (McGowan 2005: 43). Abigail Levin
claims that "pornography and hate speech are the voice of
majority hegemonic power" and thereby operate to privilege and
vindicate the interests of the powerful majorities and dominant groups
(Levin 2009: 371-2).



Louise Antony challenges Langton's use of speech act theory to
explain the apparent self-verifying nature of pornography. Antony
argues that a speech act cannot both describe a state of affairs and
bring that state of affairs into being. Langton's account, Antony
argues, conflates "power" with "authority," and
while pornography may have the power or ability to impact the world,
it is not vested with the authority to do so. Antony points out that
authority comes about through social agreement or conventions, and
pornography does not, in this sense, have the authority of an umpire
(or the law) to impose its commands or view of reality, though it may
at times succeed in influencing the beliefs or behavior of viewers
(Antony 2017; see also Stewart 2019).



Nadine Strossen challenges the notion that pornographic works have
singular authoritative meanings that are inherently sexist or
misogynist. She writes



> 
> 
> Procensorship feminists may well view a woman's apparent
> welcoming of sex with a man as degrading, but this is because of their
> negative attitudes toward women's ability to make sexual
> choices. Other viewers are likely to see such a scene as positive and
> healthy. (Strossen 1995: 162)
> 
> 
> 



Furthermore, according to Strossen



> 
> 
> Ambiguous and positive interpretations apply to the full range of
> sexual speech, including violent imagery and imagery that might well
> be labeled "subordinating" or "degrading,"
> such as rape scenes and scenes dramatizing the so-called rape
> myth--namely that women want to be raped. (Strossen 1995:
> 146)
> 
> 
> 



To illustrate that pornographic texts can produce divergent responses,
Strossen examines opposing reactions to a variety of popular media,
including films that depict rape, controversial images of women in
mainstream advertisements, and Andrea Dworkin's own sexually
graphic novels. Strossen claims that the effect on some viewers,
including women, may be positive:



> 
> 
> Pornography, including pornographic rape scenes, may serve another,
> intensely political end for women who read or see them: they go
> against the grain, thus allowing viewers to express rebellion and
> individuality. In this sense, too, words or images that literally
> depict a woman's powerlessness may well have an empowering
> impact on female viewers. (Strossen 1995: 174)
> 
> 
> 



The existence of divergent interpretations and responses to
pornographic works challenges the idea that pornography has any
single, harmful impact on the background conditions of communication.
In short, pornographic works can invite or provoke viewers to
challenge oppressive social norms, rather than merely conform to them.
At the very least, such materials make troubling aspects of human
sexuality available for public debate and critique (Strossen 1995:
176).



Georgia Warnke turns the tables on the silencing hypothesis by
suggesting that



> 
> 
> antipornography feminism silences women's differing sexual
> self-expressions by condemning those with which it disagrees as false
> consciousness ... [and] by promoting legislation that would
> suppress materials through which women can discover different views of
> an authentic sexuality and, indeed, different ways of being sexual.
> (Warnke 1999: 124)
> 
> 
> 



Consuelo Concepcion argues that antiporn feminism



> 
> 
> shows little respect for women's differing sexual practices, be
> they heterosexual intercourse or lesbian sadomasochism. This form of
> universalization denies women sexual agency because it assumes that
> our ideas about sexuality have no legitimacy and would be co-opted by
> the patriarchy. ... [and it] delegitimates women's
> dissenting sexual voices; consequently, it can depict our sexualities
> as a form of moral deviance. (Concepcion 1999: 98)
> 
> 
> 



In sum, not all women are traumatized or silenced by pornography. Some
women enjoy pornography as consumers in ways that transgress or defy,
rather than reinforce, social norms or erroneous beliefs about
women's nature. Antiporn feminists overlook and marginalize
unconventional and diverse forms of sexual expression that some women
enjoy.



Amy Allen critiques feminist debates about pornography for reducing
the idea of power to the capacity to subordinate someone or resist
subordination. Anti-pornography feminists understand
pornography's influence only in terms the subordination of women
by men, and in this way treat all women as victims and overlook the
forms of social power some women have by virtue of their race,
nationality, or class. Pro-sex feminists view pornography as a tool
for subverting sexual norms, and empowering women by enabling them to
resist sexual repression and sexist constructions of feminine
respectability. Following Foucault, Allen argues that the power to
oppress or resist are interconnected, in that both are shaped by
common understandings of human needs and desires that can be
controlled by others or liberated. Allen writes



> 
> 
> pornography does not have the power to construct our social reality
> that MacKinnon and Dworkin claim it has, nor do we as individuals have
> the power to decide to construe pornography as necessarily subversive.
> Such a transformation of the impact of pornography can be brought
> about, if at all, only by a collective social movement. (Allen 2001:
> 528)
> 
> 
> 



On this view of pornography's influence, its capacity to uphold
or subvert dominant social norms is conditioned by a third form of
power, which is the capacity to act in solidarity with others.


### 1.3 Does Pornography Sexually Objectify Women?



Alison Assiter employs Hegel's dyadic understanding of
domination and resistance to critique pornography. She writes



> 
> 
> the Master-Slave dialectic seems to capture the relation between
> people in pornographic eroticism. In much pornography, people, usually
> women, become objects for another ... In the case of pornography,
> what happens is that the one person becomes a body desired by the
> other, but this is not reciprocated. (Assiter 1988: 65)
> 
> 
> 



To treat someone as merely a body for another's use, without
recognizing that she too is a subject with desires, is to treat
someone as a slave, as a subhuman creature or object, and therefore
violates her dignity as a human being. Assiter explains that, for
Hegel



> 
> 
> "the Master-Slave dialectic" is a phase in the development
> of world history--in the progression towards freedom of the
> "Spirit" that controls historical change. In fact, the
> relation is disadvantageous both for the slave and for the master,
> (Assiter 1988: 65)
> 
> 
> 



for neither gains the forms of recognition necessary for
self-conscious awareness and emotional fulfillment.



Harry Brod argues that pornography harms men individually even while
it augments men's collective power (Brod 1992: 158). Brod
applies Kantian, Hegelian, and Marxist moral concepts and writes



> 
> 
> The female is primarily there as a sex object, not sexual subject. Or,
> if she is not completely objectified, since men do want to be desired
> themselves, hers is at least a subjugated subjectivity. But one needs
> another independent subject, not an object or a captured subjectivity,
> if one either wants one's own prowess validated, or if one
> simply desires human interaction. Men functioning in the pornographic
> mode of male sexuality, in which men dominate women, are denied
> satisfaction of these human desires. (Brod 1992: 154)
> 
> 
> 



On Brod's account, pornography enhances men's political
power over women, while diminishing the quality of men's
intersubjective relationships with women, and thereby contributes to
the loss of positive human interaction and self-realization. Brod also
argues that pornography contributes to the commodification of
sexuality, which enhances men's powers as consumers, although
not necessarily their genuine autonomy and freedom.



Catharine MacKinnon also utilizes Kant's moral philosophy to
articulate the problem with pornography:



> 
> 
> A person, in one Kantian view, is a free and rational agent whose
> existence is an end in itself, as opposed to instrumental. In
> pornography women exist to the *end* of male pleasure.
> (MacKinnon 1987: 158)
> 
> 
> 



For MacKinnon, pornography involves men treating women as mere
instruments in order to satisfy their sexual desires. Such treatment,
at best, fails to recognize women as free and equal persons and, at
worst, dehumanizes women and encourages their victimization. In
response to MacKinnon, Martha Nussbaum questions whether sexual
objectification always involves treating someone as a mere means to
another's ends, or whether it only does so in certain contexts
(Nussbaum 1999: 214).



Nussbaum identifies seven distinct kinds of actions that may or may
not be part of objectification in any given instance: instrumentality,
denial of autonomy, inertness, fungibility, violability, ownership,
and denial of subjectivity (Nussbaum 1999: 218). Some of these actions
are always morally problematic, but some of them are acceptable when
they are part of a larger relationship involving mutual respect.
Nussbaum writes



> 
> 
> Denial of autonomy and denial of subjectivity are objectionable if
> they persist throughout an adult relationship, but as phases in a
> relationship characterized by mutual regard they can be all right, or
> even quite wonderful ... In a closely related way, it may at
> times be splendid to treat the other person as passive, or even inert.
> Emotional penetration of boundaries seems potentially a very valuable
> part of sexual life, and some forms of physical boundary penetration
> also, though it is less clear which ones these are. Treating as
> fungible is suspect when the person so treated is from a group that
> has frequently been commodified and used as a tool, or a prize;
> between social equals these problems disappear .... (Nussbaum
> 1999: 238-39)
> 
> 
> 



In other words, some actions in which we enjoy another's body
sexually are consistent with recognizing the person so used as an end
in herself, and do not involve treating her as a mere object in the
Kantian sense. But Nussbaum concludes that most conventional
pornography, such as *Playboy*, fails to meet the Kantian moral
standard, and



> 
> 
> depicts a thoroughgoing fungibility and commodification of sex
> partners and, in the process, severs sex from any deep connection with
> self-expression or emotion. (Nussbaum 1999: 234)
> 
> 
> 



Nussbaum therefore concurs with MacKinnon that mainstream pornography
treats women as mere objects or trophies--things that enhance
men's status or are exchangeable on demand for the next
attractive body.



Although Nussbaum is sympathetic to MacKinnon and Dworkin's
analysis of pornography, she offers four reservations in regard to
ordinances aimed at making pornographers legally liable for the
alleged harms caused by their materials. First, the justification for
the ordinance fails to distinguish between moral wrongs that are
legally actionable and those that are not. Second, violence against
women has a variety of causes and it is difficult to isolate the
distinct contribution of pornography. Third, making authors
responsible for the criminal actions that their work may inspire is
likely to have a chilling effect on valuable expression. And fourth,
officials and courts are likely to misapply such ordinances to
controversial but not harmful speech (Nussbaum 1999: 248-249).
Nussbaum's critique avoids invoking an unlimited or overly broad
right to free speech, as she notes that not all speech is protected by
the First Amendment (Nussbaum 1999: 247). She also notes that makers
of other vice-type products, such as tobacco, can be held liable for
the damaging effects of their products, and that other Western
democratic countries permit restrictions on hate speech. Nevertheless,
Nussbaum suggests that the harms of pornography can be addressed
through moral dialogue and cultural analysis. Similarly, Langton, who
is highly sympathetic to MacKinnon's analysis of pornography,
sees it as primarily a moral issue and a philosophical problem
regarding what it means to live a good life (Langton 2009: 24).



Linda LeMoncheck challenges the view that pornography involves
unacceptable forms of sexual objectification by arguing that the
sexual fantasies depicted in pornography imply that women's
subjectivities are recognized by the consumers of this material
(LeMoncheck 1997: 133). The fantasy of overcoming a woman's will
assumes that she has a will to overcome (LeMoncheck 1997: 131), and
the fantasy that women enjoy being sexually exploited assumes that
they have desires that men's sexual use fulfills (LeMoncheck
1997: 133). LeMoncheck writes



> 
> 
> sex work is not merely about treating a woman as an object nor merely
> about dehumanizing her. Sex work is a complex dialectic between
> subject and object in which a woman's dehumanization is
> successful precisely because she is perceived as a person whose will,
> seductiveness, and power is properly subordinate to men. (LeMoncheck
> 1997: 134)
> 
> 
> 



On this view, pornographic materials and porn consumers recognize
women's agency while imagining subduing it. Women are thus
recognized as subjects with ends of their own and are not depicted as
mere subhuman objects. Susan Bordo similarly recognizes that women are
constructed as subjects in pornography, but she argues that they are
subjects whose agency expresses itself only as a desire to please the
projected male viewer. She writes



> 
> 
> an essential ingredient in porn ... is the depiction of a
> subjectivity (or personality) that willingly contracts its
> possibilities and pleasure to one--the acceptance and
> gratification of the male ... The woman in porn abdicates her
> will, her sexual discrimination, her independence, but not to become a
> mute body for the man. (Bordo 1994: 276)
> 
> 
> 



For Bordo, there is a mind inside the pornographic female body, but it
communicates only a limited range of nonthreatening desires, and
therefore it exists as a truncated self.



Shrage contests the Kantian notion that sex is morally problematic
because it inevitably involves using another as a mere instrument. The
agency of sexual actors does not have a greater potential to immorally
objectify others than the agency of employers, consumers, and numerous
agents who exploit human capacities to achieve their own ends. Shrage
argues that the use of others involved in pornography is not immorally
objectifying as long as consumers and producers respect the ends of
the actors and models employed. These ends include the desire to
economically benefit from their sexual attractiveness within the
conventional boundaries set by various genres of sexual representation
and entertainment. The relationship between porn stars and consumers
of their work are market relationships and should be held to the norms
of those relationships, not the norms of friendships and romance
(Shrage 2005). Similarly, Patricia Marino argues that respect for
another's autonomy and consent are what is crucial for avoiding
immoral sexual objectification, and not whether the sexual use is
mutual or whether it takes place within an ongoing adult relationship.
A person avoids treating another as a mere object or instrument if he
is attentive to whether his partner is giving, tacitly or overtly,
ongoing consent to the type of use and the particular instance of it.
Moreover, the background conditions must be such that the person who
is used as a means to another's ends can be judged to be
voluntarily and genuinely consenting. When these criteria are met in a
one-sided commercial or casual exchange, then the instrumental use is
not immoral (Marino 2008).



Jennifer Saul explores the possible connection between
objectification--treating people as things--and
personification--treating things as people. Saul critiques
earlier feminist claims that men's use of pornographic images
involves treating pieces of paper like women, and therefore involves
conflating women with inanimate instruments (Saul 2006a, 49-50).
Melinda Vadas, for example, argues that the production of objects that
can be used, like women, to satisfy sexual appetites places women and
their pornographic substitutes in a single ontological
category--e.g., the category of entities that can arouse and
satisfy sexual desire. This reinforces the sexist idea that all that
female and alluring things, whether persons or not, are sexually
consumable without consent, or that is, rapeable (Vadas 2005). Saul
argues that personification and objectification are only linked in
troubling ways if some conditions for morally problematic
objectification are already met. Saul draws on Rachel Maines's
historical work on the development of a device now known as the
personal vibrator and contends that women's use of vibrators to
achieve sexual pleasure and orgasm represents a form of
personification. For some women, vibrators eventually replaced a
service that had been provided by doctors (and midwives and spas). Yet
this is not a troubling form of personification--one linked to
troubling forms of objectification--because doctors are not
likely to be confused with sex toys as a result of women's
masturbatory use of vibrating technology. Doctors have other
acknowledged medical uses, as well as ends of their own. Therefore,
the transformation of their historical role in treating sexually
frustrated (or "hysteric") women, by both new
understandings of women's reproductive and sexual health and
advancements in vibrator technology, does not contribute to the
oppression of doctors. Saul's discussion of the possible
equation of people and things, and the background circumstances that
may permit this, is useful for considering some new technological
developments in pornography. New digital imaging and personal computer
technologies enable users to interact and "have sex" with
playmate animations on one's computer screen. Computer-mediated
interactions with digitally-simulated but fictional people can
sometimes be difficult to distinguish from computer-mediated online
interactions with real people. Yet such pornographic possibilities do
not necessarily involve morally troubling objectification or
personification, as long as the social background conditions require
us to differentiate flesh and blood, non-virtual humans from passive
objects and treat the former as subjects, or as active and autonomous
agents.



Nancy Bauer appeals to Beauvoir's ideas regarding the social
construction of femininity, and suggests that women are to some degree
responsible for self-objectification, and are not mere passive agents
acted upon by men. Bauer critiques contemporary feminist philosophers,
such as Langton, for failing to illuminate contemporary sexual
cultures and practices in ways that might lead to genuine
self-criticism and self-awareness. Philosophical speech, like
pornographic speech, is a form of social action, and Bauer's
book urges feminist philosophers to consider what kinds of social
action they engage in when they offer technical linguistic analyses of
pornography's influence (Bauer 2015). Do their communicative
acts serve as action-guiding social commentary, or as theoretical
exegeses within the insular world of academic philosophy? Can an
analysis of pornography's causal properties tell us what to do
with it, or about it?



Ann Cahill argues that the notion of 'objectification' is
the wrong tool for analyzing different forms of sex work. Accounts
that rely on this concept construe respect for the subjectivity and
autonomy of persons as a moral duty, while treating a person as a
physical thing or a body is morally impermissible. In this way, such
accounts privilege the mind over the body, and treat the bodily
components of the self as less important or dignified. Feminists and
other moral theorists whose critiques of sex work build on the alleged
wrongs of objectifying persons cannot "explain how the
experience of being treated as a sexually appealing body can actually
enhance rather than undermine one's sense of self" (Cahill
2014: 842). Cahill proposes that we degrade others when we recognize
in another subject only those aspects of their subjectivity important
to ourselves. "Derivatized subjects" are often reduced to
the roles they fulfill for another subject (e.g., waiter, mother,
etc.), and are only valued for the traits suitable to these roles.
Derivatization degrades people not by treating them as a mere body,
but by treating people such that their subjective qualities and
identities are determined by the needs of others. Cahill contends that
sex work is problematic when it involves derivatizing sex workers
(defining them in terms of the demands of their clients), but that sex
work does not inherently involve this kind of degradation. She
suggests that derivatization is especially morally problematic when it
reflects and reproduces unjust social privileges.


### 1.4 Does Some Pornography Serve Feminist Ends?



Some feminist theorists argue that pornography is about voyeurism, and
that some women (and some men) take pleasure in looking at depictions
of sex. To explore women's use of pornography, feminist scholars
have studied soft-core pornographic genres that are marketed to women,
such as pulp romance fiction (Radway 1991). Some have studied lesbian
pornography to challenge the idea that pornography always involves men
subordinating women (Ross 2000). In 1986, a group of feminists
published *Caught Looking: Feminism, Pornography, and
Censorship*, which argues that feminists have targeted pornography
out of frustration with their lack of progress in reducing violence
against women. The book showcases a variety of pornographic imagery in
order to illustrate the types of materials that may be restricted
under feminist-supported legal regulations (Duggan, Hunter, &
Vance 1986). In the introduction, Kate Ellis, Barbara O'Dair and
Abby Tallmer argue that



> 
> 
> the feminist movement must not be drawn, in the name of protecting
> women, into the practice of censoring "deviant" sexual
> representation or expression ... Women had to learn, with the
> support of other women, to articulate experiences that lay outside the
> proper sphere of the "nice girl," to acknowledge our
> fantasies, and to be proud of our sexual choices ... We must
> speak out when we are victims, but also acknowledge what excites us,
> and support women who make their living providing that excitement to
> men and to ourselves. (Ellis et al. 1986: 6)
> 
> 
> 



Ann Snitow advocates recentering feminist sexuality discussions on
"the right to demand a sexuality more centered on female
pleasure", instead of focusing on controlling male sexuality
(Snitow 1986: 11).



In *Caught Looking*, Lisa Duggan, Nan Hunter, and Carole Vance
question the political strategies of anti-pornography feminists. They
ask "how can feminists be entrusting the patriarchal state with
the task of legally distinguishing between permissible and
impermissible sexual images?" (73). Any non-normative form of
sexual expression, such as consensual BDSM or lesbian erotica, could
be targeted by MacKinnon/Dworkin style ordinances. Gayle Rubin
elaborates



> 
> 
> The scapegoating of pornography will create new problems, new forms of
> legal and social abuse, and new modes of persecution. A responsible
> and progressive political movement has no business pursuing strategies
> that will result in witch-hunts. (Rubin 1993: 38)
> 
> 
> 



Duggan, Hunter, and Vance provide three further reasons for opposing
anti-pornography laws:



> 
> 
> first, the sexual images in question do not cause more harm than other
> aspects of misogynist culture; second, sexually explicit speech, even
> in male-dominated society, serves positive social functions for women;
> and third, the passage and enforcement of antipornography laws such as
> those supported in Minneapolis and Indiana are more likely to impede,
> rather than advance, feminist goals. (Duggan Hunter, & Vance 1986:
> 80-81)
> 
> 
> 



Drucilla Cornell criticizes MacKinnon and Dworkin's model
ordinance for its tendency to enshrine an old stereotype of woman in
the law--woman as vulnerable and in need of protection. She
alleges that the ordinance approach relies on the law to enforce
social norms and thus fails to struggle "beyond those symbolic
forms that have been deeply inscribed in and by the structures of
gender", as new forms of erotica sometimes do (Cornell 2000a:
554).



Judith Butler examines the role of fantasy in feminist politics and
argues for maintaining conditions that permit diverse representations
of women. Butler writes, "feminist theory relies on the capacity
to postulate through fantasy a future that is not yet" (Butler,
J. 2000: 487). According to Butler, antipornography feminists
uncritically assume a representational realist ontology in which
"depictions" imitate and can causally disrupt some
preexisting reality. Butler argues for a more complex understanding of
the relation between representations and their referents, focusing on
how representations can call into question the ontological status of
entities and on how "the real" is produced through social
action. Curtailing representations will produce new forms of social
action rather than protect some undisturbed, preferred version of
reality. In Butler's words



> 
> 
> certain kinds of efforts to restrict practices of representation in
> the hopes of reigning in the imaginary, controlling the phantasmatic,
> end up reproducing and proliferating the phantasmatic in inadvertent
> ways, indeed, in ways that contradict the intended purposes of the
> restrictions itself. (Butler, J. 2000: 490)
> 
> 
> 



Butler points out that efforts to censor homoerotic images have led to
their greater production and exposure. She concludes that



> 
> 
> Feminist theory and politics cannot regulate the representation of
> "women" without producing that very
> "representation": and if that is in some sense a
> discursive inevitability of representational politics, then the task
> must be to safeguard the open productivity of those categories,
> whatever the risk. (Butler, J. 2000: 503)
> 
> 
> 



Butler concurs with feminists who hold that noxious speech can, in
most instances, be addressed through action that involves critical and
thoughtful speech. For instance, disturbing depictions of "real
sex" can be contested by insightful commentary and by new kinds
of erotic imagery. Cornell develops this approach by arguing that
"Political action, not legal action, should be the main mode of
intervention in the *production* of pornography" (Cornell
2000a: 551). By political action, Cornell means that feminists should
form alliances with feminists in the pornography industry to create
representations of sexuality that will benefit women. Like Snitow,
Cornell argues that feminist activism should focus "on
unleashing the feminine imaginary, rather than on constraining
men" (Cornell 2000a: 553). Cornell examines the film and
performance work of Candida Royalle, Ona Zee, and Annie Sprinkle to
show how "femme" and feminist pornography challenges the
ways that conventional pornography captures women and sex. Like
Butler, Cornell emphasizes the importance of fantasy for realizing
transformative feminist projects. She writes "Without new images
and new words in which to express our sexuality, we will be unable to
create a new world for women" (Cornell 2000a: 564).



Anne Eaton explores the production and marketing of feminist
pornography and argues that, just as conventional pornography shapes
our erotic tastes in ways that reinforce patriarchal values, it can
and should be co-opted for feminist purposes. Pornography can be
produced so that it eroticizes sexual practices and relationships that
reflect egalitarian values (Eaton 2017; see also Stewart 2019). Robin
Zheng explores the work of women of color in the pornography industry,
and considers the capacity of pornography to both reinforce and resist
racist stereotypes and aesthetic values. Countering the arguments of
those who allege that risks of participating in the porn industry
outweigh the benefits, Zheng writes "if we must wait until the
patriarchy is ... dismantled for morally pure sexual pleasures, then
we will be allowed no pleasures at all. Moreover, we will not be
engaged in the sort of experimentation and play--which, to be
sure, may initially lead to more mistakes than successes--that
will ultimately lead to the transformative pornography that feminists
have so longed for. While we can certainly critique particular
elements and works of pornography, pornographies as market industries
and forms of cultural production will continue to play an important
role in facilitating the development and cultivation of the active
sexual selves that we wish to be..." (Zheng 2017).


## 2. Prostitution


### 2.1 Should Some Sex Markets Be Prohibited?



Markets that subvert or erode fundamental moral and political values
should be suppressed, according to Debra Satz. These markets tend to
exploit the social vulnerabilities of others, lack informational
transparency, pose unacceptably high risks for some participants, or
contribute to the social marginalization of some groups. For example,
markets in sexual services that (i) seek providers from stigmatized or
disempowered social classes, (ii) fail to create conditions for
informed consent, (iii) damage the health of participants, or (iv)
reinforce pernicious stereotypes about women or other groups, are of
questionable value. Although these features of markets are usually
contingent, when they persist, states are justified in restricting or
regulating such markets, especially if they can do so without
producing more harm than good (Satz 2010). Anne Phillips contends that
markets in sexual services arise only under conditions of social
inequality. She writes, "the inequality that attends such
markets is not just contingent; it is an intrinsic feature"
(Phillips 2011: 738). People offer sexual intimacy, or bodily organs
or substances, primarily as acts of compassion, and do not in ordinary
circumstances commoditize such bodily capacities. Phillips points out
that few customers in such markets would be willing to enter as
sellers. Those who do market their sexual, reproductive, or other
basic bodily capacities do so only when background circumstance compel
them to do so.



Carole Pateman argues that the work of a female prostitute is
different from other jobs, as it expresses the inferior social and
political status of women. Moreover, because people's bodies and
sexual capacities are an integral part of their identity as men and
women, the woman who works as a prostitute sells her womanhood and
therefore herself (Pateman 1988: 207). Christine Overall similarly
argues that prostitution is a transaction in which one person must be
defined as a social subordinate who caters to the desires of another.
She claims that the prostitute's work differs from that of other
low-status workers in that it is a form of labor that cannot be
reciprocated (Overall 1992: 718). Elizabeth Anderson develops this
idea and argues that the good of sex is



> 
> 
> realized only when each partner reciprocates the other's gift
> *in kind*, offering her own sexuality in the same spirit in
> which she received the other's--as a genuine offering of
> the self. The commodification of sexual "services"
> destroys the kind of reciprocity required to realize human sexuality
> as a shared good,
> 
> 
> 



and may corrupt non-market sexual relationships by promoting the
valuation of women in terms of their market worth (Anderson 1993:
154-55; see also Radin 1996: 133).



Although Phillips, Pateman, Overall, and Anderson regard marketing
one's sexual capacities as inherently degrading and oppressive,
other feminist theorists contend that these features of the work are
contingent. Shrage argues that sex markets, like other markets, often
exploit sexist ideas that relegate women to subservient roles, and
their existence in this form can perpetuate pernicious social myths
that stigmatize women. Yet, the background conditions of such markets
can change, especially as the norms of gender and sexuality evolve in
ways that are less sexist (Shrage 1989: 357). Debra Satz writes
that



> 
> 
> If prostitution is wrong it is because of its effects on how men
> perceive women and on how women perceive themselves. In our society,
> prostitution represents women as the sexual servants of men. (Satz
> 1995: 78)
> 
> 
> 



Satz suggests that the negative image of women promoted by
prostitution "shapes and influences the way women as a whole are
seen" (Satz 1995: 79). However, if the industry were
restructured to be less sexist, then its impact on society would be
different.



Martha Nussbaum questions whether the sale of sexual services
genuinely damages the persons who provide them or women as a whole.
Nussbaum points out that, two centuries ago, the use of one's
artistic talents for pay, such as singing or acting, was regarded as a
form of prostitution (Nussbaum 1999: 277). Nussbaum acknowledges that
sex workers are currently stigmatized for their profession, but
questions whether the stigma that attaches to their work is justified.
By tracing this stigma both to aristocratic prejudice toward waged
laborers and to moralistic attitudes and anxieties regarding female
sexual expression, Nussbaum challenges the rational basis of this
social stigma (Nussbaum 1999: 278-79, 286-88). She
concludes that feminists should oppose the stigmatization of sex work,
rather than oppose sex work for its contribution to the stigmatization
of women. Nussbaum also questions seven common claims against
prostitution: that it involves excessive risks, the prostitute has
little autonomy, it violates the prostitute's bodily integrity,
prostitution has a destructive effect on non-commercial intimate
relationships, prostitution violates a person's inalienable
right to her sexuality, it contributes to a male-dominated social
order, and it relies on the economic coercion of workers. Nussbaum
argues that the problems associated with prostitution are components
of many other kinds of work and social practices, and that these
problems are not inherent to the work but are often a function of the
prostitute's working conditions and treatment by others
(Nussbaum 1999: 288-97, see also Moen 2012).



Scott Anderson resists the move to treat prostitution like other forms
of work. He argues that normalizing prostitution undermines a
person's right to sexual autonomy, which is an important value
defended by radical feminists. Prostitutes waive their right to sexual
autonomy because their jobs place them under contractual obligations
to have sex, and thus diminish their control over when and with whom
they have sex. Anderson acknowledges that all jobs, to some degree,
diminish various forms of autonomy. He contends that sexual autonomy
should be valued differently from other forms, such as a
person's control over when and to whom they serve food, provide
a massage or dance, offer expert advice, or talk philosophy. He
writes



> 
> 
> a person's sexuality almost always figures prominently as an
> aspect of his or her self-conception, status in society, and economic
> and social prospects...It is because sex plays such a pivotal
> role in the lives of most adults...that it creates its own
> special...realm within which one can be more or less autonomous.
> (Anderson 2006: 386)
> 
> 
> 



Anderson here echoes Pateman's contention that our sexual
capacities and practices are an integral part of who we are as men and
women. For this reason, a person's sexual autonomy should be
non-alienable, because to alienate it is to destroy a person's
wholeness or integrity.



In response to Anderson, Hallie Liberto distinguishes three ways of
alienating a right or good. First, one can waive a right to *x* (in
a weak sense) by granting someone access to *x* with the
understanding that, at any moment, permission to use *x* can be
revoked. Second, one can waive a right to *x* (in a strong sense) by
granting someone access to *x* for a duration of time, with the
understanding that permission to use *x* cannot be revoked during
this period (presumably if other terms of the lease are met). Third,
one can relinquish a right to *x* by transferring that right, as
through a sale or gift. In this case, permission to use *x* is
granted permanently and cannot be revoked if other terms of the
transfer are met. Liberto points out that those who consider the
marketing of sexual services a legitimate form of work assume that the
sex worker, like other workers, will only be alienating her right of
control over her body and sexual labor in a weak sense (Liberto 2009:
141-43; see also Schwarzenbach 1991: 112). In a society in which
any form of forced labor is prohibited (e.g., slavery, indentured
servitude), workers are generally permitted to back out of labor
contracts, although in doing so they typically relinquish all expected
benefits (Shrage 2016).



Sex worker activists and advocates have long argued that they are not
permanently alienating (selling) their sexual capacities, but rather
are exchanging sexual labor for benefits (Schwarzenbach 1991:
112-14). A sex worker's right to sexual autonomy is not
undermined in contexts where she retains the right to withdraw from
her labor contracts at any time (Tuana and Shrage 2003: 33; Shrage
2016). Carol Leigh and Norma Jean Almodovar suggest that
anti-prostitution laws undermine sexual autonomy by not allowing
adults to enter mutually advantageous sexual agreements (Leigh 2004;
Almodovar 2002). Peter de Marneffe argues for limiting sex worker
contracts in ways similar to other forms of dangerous and potentially
harmful work. Restricting and regulating prostitution would balance
respect for the autonomy of service providers (and consumers of sexual
services) with society's interest in protecting its members from
harm (de Marneffe 2010).


### 2.2 Can We Distinguish Human Trafficking from Consensual Sex Work?



Some markets in sexual services exploit providers who manifest weak
agency (Satz 2010), such as people who are young, homeless, drug
addicts, poor, oppressed minorities, migrants, undocumented, and so
on. Gerda Lerna argues that to understand how prostitution evolved
historically, we need to understand "its relationship to the
sexual regulation of all women in archaic states and its relationship
to the enslavement of females" (Lerner 1986: 124). Lerner
writes



> 
> 
> It is likely that commercial prostitution derived directly from the
> enslavement of women and the consolidation and formation of classes.
> Military conquest led, in the third millennium B.C., to the
> enslavement and sexual abuse of captive women. As slavery became an
> established institution, slave-owners rented out their female slaves
> as prostitutes, and some masters set up commercial brothels staffed by
> slaves. (Lerner 1986: 133)
> 
> 
> 



Lerner speculates that prostitutes and concubines were used by rulers
as symbols of wealth and power, and this practice was then emulated by
other men of wealth and status (Lerner 1986: 133). Paupers were often
forced to sell children, adding to the supply of labor for this
purpose. Furthermore, as women's social respectability and
marriageability became tied to their chastity, "commercial
prostitution came to be seen as a social necessity for meeting the
sexual needs of men", (Lerner 1986: 134). In short, women who
became prostitutes in ancient societies were typically enslaved,
captive, or poor.



Gayle Rubin traces the origins of modern prostitution to the rise of
patriarchal kinship systems in which women are exchanged as gifts
among families to cement social bonds (Rubin 1975: 175). Rubin
writes



> 
> 
> If women are the gifts, then it is men who are the exchange partners.
> And it is the partners, not the presents, upon whom reciprocal
> exchange confers its quasi-mystical power of social linkage. The
> relations of such a system are such that women are in no position to
> realize the benefits of their own circulation. As long as the
> relations specify that men exchange women, it is men who are the
> beneficiaries of the product of such exchanges--social
> organization. (Rubin 1975: 174)
> 
> 
> 



In other words, in the very creation of society, women were allegedly
subordinated through ritual exchange in order to create bonds of
kinship among men as the foundation of the social order. Rubin
writes



> 
> 
> The "exchange of women" is a seductive and powerful
> concept. It is attractive in that it places the oppression of women
> within social systems, rather than biology. Moreover, it suggests that
> we look for the ultimate locus of women's oppression within the
> traffic in women, rather than within the traffic in merchandise.
> (Rubin 1975: 175)
> 
> 
> 



Trafficking in women to create social bonds among men, on
Rubin's account, explains women's social subordination as
wives and ultimately, and as nonfamilial sexual servants.



Both Lerner's and Rubin's accounts link the rise of
prostitution to the subordination of women, and overlook the
enslavement and prostitution of men, both in ancient and modern
societies. Lerner's account fails to explain why female slaves
were sexually exploited more than male slaves. Rubin does not explain
why women, rather than men or opposite-sex pairs, were exchanged or
"trafficked" in early kinship systems, and thus her
account begs the question in regard to the rise of patriarchal kinship
and political systems (Shrage 1994: 105, 131-32). While
consumers of commercial sexual services have been predominantly male
throughout history, factors other than gender subordination have
influenced whose sexual labor was bartered or sold, such as
colonialism and racial subordination (Kempadoo 1999). By trying to
explain contemporary sex commerce in terms of the subordination of
women, these accounts overlook important historical and cultural
discontinuities. For example, commercial sex providers have not always
been regarded as ineligible for marriage and have, in some places,
been integrated into their communities to a high degree (Shrage 1994:
109, 115; White 1990: 19; Rossiaud 1988: 70).



Carol Pateman deploys the concepts of liberal political theory to
explain the existence of prostitution in modern societies. She argues
that the social contract, which establishes the rights and freedoms of
men in a liberal political order, also establishes the terms of
women's subjection. In particular, the patriarchal social order
includes an implicit agreement among men that grants them sexual
access to women (Pateman 1988: 2). Men acquire sexual rights to
particular women through marriage and prostitution. In other words,
men have a class privilege--a right to sexual relief from
women--which they can exercise by asserting their rights as
husbands or johns. Like Lerner and Rubin, Pateman challenges the
notion that prostitution results from men's biologically driven
behavior, and instead explains prostitution as the incorporation of a
particular conception of masculinity into modern political and social
structures (Pateman 1988: 198-99). In this way, modern
prostitution represents the survival of some aspects of older
illiberal social orders within the modern liberal state. Both
traditional marriage and prostitution, for Pateman, Lerner, and Rubin,
give men access to and control over the sexual capacities of
women.



Kamala Kempadoo argues that "the global sex trade cannot be
simply reduced to one monolithic explanation of violence to
women" (Kempadoo 2001: 28). Kempadoo claims that older feminist
models, which see prostitution as reflection of male power backed up
by a monopoly on the use of physical force, are "inadequate to
capture the various histories, oppression, and experiences of women of
color" (Kempadoo 2001: 35, 37). Kempadoo examines how histories
of racism, colonialism, militarism, and globalization structure the
choices of first and third-world women of color. Although Kempadoo
urges feminists to understand prostitution in terms of a broader range
of social forces, she maintains that feminist theorizing about
prostitution should avoid overlooking the agency of women of color by
treating them as mere passive victims of oppression (Kempadoo 2001:
43). Kempadoo writes



> 
> 
> The agency of Brown and Black women in prostitution has been avoided
> or overlooked and the perspectives arising from these experiences
> marginalized in dominant theoretical discourse on the global sex trade
> and prostitution. Our insights, knowledges, and understanding of sex
> work have been largely obscured or dominated by white radical
> feminist, neo-Marxist or Western socialist feminist inspired analyses
> that have been either incapable or unwilling to address the
> complexities of the lives of women of color. (Kempadoo 2001: 40)
> 
> 
> 



Rather than conceptualize prostitution in terms of the sexual
exploitation and degradation of women, Kempadoo advocates
understanding prostitution as a kind of labor that is often performed
by marginalized people (Kempadoo 2001: 45; Kempadoo and Doezema 1998:
4-5; see also Leigh 1997). In this way, prostitution is similar
to labor performed in other industries, such as agriculture,
manufacturing, or transportation. By analyzing prostitution as a form
of labor, rather than a form of social decay or evil, feminists can
avoid unrealistic abolitionist approaches (Kempadoo and Doezema 1998;
White 1990; Shrage 1996).



A number of feminist theorists analyze prostitution and trafficking in
terms of neoliberal and neocolonial economic relationships, in which
women from poor countries in the global south are conscripted to
provide "comfort and recreation" for military personnel
and other men from rich nations in the global north. Sometimes social
elites in poor nations tolerate and promote their own "sex
tourism" enterprises, in which local women provide sexual labor
to attract foreign capital (Enloe 1989: 36, 86; O'Connell
Davidson 1998: 75; Bishop and Robinson 1998). Laura Agustin
cautions feminists not to conflate voluntary (though illegal) migrants
who are seeking more lucrative forms of sex work with trafficked women
(Agustin 2007). Although poor, third-world (and second-world)
women are often exploited by traffickers, some may be choosing to
migrate and work in sex businesses over other occupations available to
them (factory or domestic work) both in their home and target
countries. Harsh laws against trafficking often exacerbate the plight
of voluntary migrant sex workers who may be undocumented and working
illegally (Kotiswaran 2011; Rajan 2003; Kempadoo and Doezema 1998).
Anti-trafficking and anti-prostitution efforts should focus on
eliminating forced work and migration, child labor, exploitative
working conditions, and hostile legal environments for migrants and
sex workers (Kotiswaran 2011: 47-8).



Because sex workers often come from marginalized social groups, their
basic rights as workers and citizens are frequently violated (Butler,
C. 2015). Feminist theorists who recognize sex work as a legitimate
choice that some people make, among a constricted set of opportunities
in order to earn a living, also recognize that sex markets can take
many forms. In some cases those who supply the labor are relatively
free and empowered agents, and in other cases they are not. The
challenge is to devise policies that prevent the recruitment of
children and socially vulnerable people as providers, and that also
protect the rights of those who enter such markets even with informed
consent.


### 2.3 Can Markets in Sexual Services Be Effectively Regulated?



Trafficking in persons (human slavery) for any purpose, including sex
commerce, is universally condemned and rightly so. Feminists disagree
about whether all sex markets involve forced labor and sex. Those who
regard commerce in sex categorically as a form of involuntary
servitude and violence against women generally support laws that
punish people who exchange money for sex in all circumstances
(Jeffreys 1998; Barry 1996; Stark and Whisnant 2004). Feminists who
hold that some sex work is performed by people who exert autonomy and
moral agency generally support policies that permit exchanges of sex
for money among consenting adults (Shrage 1996; Nussbaum 1999; Ditmore
2005; Leigh 2004). Having such policies is consistent with vigorous
efforts to stop human trafficking.



Peter de Marneffe distinguishes four approaches to laws governing
prostitution. (1) *Prohibition* involves criminalizing both the
sale and purchase of sexual services, along with related activities,
such as soliciting or operating a brothel. (2) *Abolition*
involves criminalizing only the purchase of sexual services, along
with related activities such as curb ("kerb") crawling or
procuring. (3) *Regulation* (legalization) involves
governmental licensing and regulating of sex work businesses. (4)
*Decriminalization* involves removing criminal prohibitions for
acts of purchasing or selling sex among consenting adults (de Marneffe
2010: 28-30; see also Kotiswaran 2011: 16). According to de
Marneffe, one can defend decriminalization by appealing to the moral
right to self-sovereignty, without supporting legalization, especially
of large scale enterprises (de Marneffe 2013).



Most feminists who oppose all sex commerce support abolition rather
than prohibition, because the abolition approach treats the provider
of sexual services as a victim rather than a criminal. To prosecute
women for selling sex, some argue, just compounds their victimization
and oppression. Sweden was the first country to adopt this approach
(Watson 2019). Other feminists support regulation, because abolition
can endanger sex workers by forcing their work underground in order to
protect customers. The Netherlands and Germany have adopted some form
of regulation, which basically aims to reduce the harms of
prostitution rather than eliminate it. Some feminists support
decriminalization (the approach now taken in New Zealand) because most
regulatory approaches (e.g., mandatory registration and health checks
for providers, restricting work sites through zoning and brothels,
etc.) aim to protect customers and third parties, not sex workers, and
contribute to the stigmatization of prostitutes as diseased and sinful
(Nagle 1997; Kempadoo and Doezema 1998; Almodovar 2002; Leigh 2004).
By contrast, regulationists worry that a *laissez-faire*
approach leaves sex workers vulnerable to extreme exploitation, and
some explore how employment law and policy can protect sex workers, as
well as clients and third parties (Davis 2015; Shrage 1994 and
1996).



In the U.S., many sexual service providers work for escort agencies,
and thereby manage to get around anti-prostitution laws. Because the
client pays the agency for the escort's time and the provider
does not take money directly from the client but only from the agency,
sex between a professional escort and her client is often ignored by
law enforcers. When agencies become aggressive and brazen in their
advertising or business practices, they are sometimes prosecuted as
fronts for prostitution. Yet, the full force of anti-prostitution laws
tends to be felt by women who are destitute, drug-addicted, or just
amateurs, who solicit customers directly or in public places. Under
regimes of prohibition, anti-prostitution laws are often used against
people who engage in survival sex, such as homeless women or minors
who are not able to work in safer venues. Rarely are they used against
middle class women who serially date men in pursuit of expensive
gifts, college tuition, or living expenses (Shrage 2015).
Anti-prostitution laws are also used to prosecute men who sexually and
commercially exploit women (e.g., customers and pimps), but they are
sometimes used to prosecute the boyfriends and co-workers of
prostitutes with whom they have consensual and supportive
relationships (Almodovar 1993). Police practices in the U.S.,
historically, have focused on arresting and prosecuting prostitutes,
especially street workers, who may receive enhanced penalties if they
know they are HIV positive. Women make up the majority of prostitutes
and the majority of those arrested, and minority women are
overrepresented among those arrested (Marganski 2012).



Over the past few decades, a few countries have moved toward
toleration and regulation of the work activities of prostitutes, yet
the larger trend has been toward criminalization, often with increased
penalties for customers and pimps (see
 100 Countries and Their Prostitution Policies).
 Feminist campaigns against prostitution and trafficking have
mobilized to win approval for abolitionist policies. Essentially, the
feminist anti-pornography movement of the 1970s and 1980s has evolved
into the feminist anti-trafficking movement of the 21st
century. Both movements treat markets in sexually explicit materials
and services as a form of violence against women, and claim that
tolerating them perpetuates the social subordination of women. Like
the anti-pornography movement in the 1980s, the anti-trafficking
movement is finding common ground with social conservatives who have
religious objections to non-marital sex, and, more recently, with
political conservatives who want to keep economic migrants out of
their countries.



In response to these and earlier efforts to block sex markets, an
international sex workers' rights movement has formed to
advocate for decriminalizing consensual adult sex work. Sex worker
activists, many of whom are also feminists, have challenged scholarly
research about their lives and work, and argue that criminalization
renders them less able to protect their health and exercise their
rights (Almodovar 1993; Pendleton 1997; Highleyman 1997; Queen 1997;
Sprinkle 1998; Quan 2001; Bernstein 2000; Leigh 2004). Sex worker
organizations are forming alliances with queer activists, labor
unions, and human rights advocates to advance their political goals
(Beloso 2012). In 2015, an influential human rights organization,
Amnesty International, approved a resolution calling upon countries to
decriminalize adult consensual sex work, which represents a huge
victory for the sex workers rights movement.



Adrienne Davis argues that the abolitionist movement has had more
political victories because this side is more united in their aims. By
contrast, feminists supporting sex worker rights are deeply divided
over whether to support regulation or decriminalization. Davis shows
that advocates for regulation exaggerate the similarities of sex work
with other types of work, while advocates for decriminalization
exaggerate the differences. Davis proposes a "sexual
geographies" approach to sex work, which recognizes that the
potential harms depend on where and how the work is performed. Virtual
sex work, where providers are relatively anonymous and meet with
customers only online, is relatively safe. Outcall work, where sex
workers meet with customers in private spaces, such as hotel rooms,
and have physical contact with their customers is significantly more
risky. Exotic dancers, who perform in public venues, such as bars and
clubs, and have limited physical contact with customers, face an
intermediate level of risk. Health and safety regulations need to
encompass different kinds of work sites and risks, and include
appropriate measures for each.



Davis notes where current employment law in the U.S. is insufficient
to address some of the risks that sex workers face, such as assault by
customers and co-workers and invidious discrimination (Davis 2015).
Employment regulations typically offer greater protection for injuries
acquired in the course of doing one's job than for incidental
violence and attacks. Davis also points out that sexual harassment
will be more difficult to define in sex work contexts. Furthermore,
because preferences for race, like gender, may be built into
customers' sexual tastes and fantasies, employers and courts
might view generally irrelevant personal characteristics as *bona
fide* occupational qualifications. Nevertheless, Davis favors
decriminalization with regulation, and challenges feminists to improve
employment regulation so that there are better safeguards for sex
work, and other work performed in non-traditional and diverse work
sites.



In her theoretically nuanced and fair-minded overview of both radical
feminist opposition to prostitution and liberal feminist advocacy of
sex worker rights, Prabha Kotiswaran carves out a "middle
ground" feminist position. Middle ground feminism pays attention
to the empirical realities of various sex trades and the efforts of
sex worker organizations to protect the civil and economic rights of
their members. Middle ground feminists are aware of how the sex
industry is gendered and, at times, critically and respectfully engage
with the proposals of sex worker advocates. For example, they may be
skeptical of the alleged needs of men that the sex industry aims to
serve, while recognizing that sex workers are not passive dupes but
agents who exploit less than ideal background conditions. Middle
ground feminists do not treat sex commerce as monolithic, but pay
attention to the different ways that labor and capital are organized
in different trades. They recognize that much of sex work, like other
low status service work, is menial and sometimes unpleasant, but it is
not work that is inherently degrading or violent to those who
voluntarily perform it. They also recognize that sex work is
continuous with much of the caregiving work women perform, as wives,
mothers, nurses, teachers, nannies, and domestics, and do not single
out the sex industry for assigning to women a disproportionate share
of caregiving work in society. In this way, they do not treat sex work
as exceptional in terms of its risks, difficulty, and larger societal
effects. And finally, middle ground feminists are less likely to make
common cause with anti-feminist sexual moralists and anti-immigrant
conservatives, and are more likely to find common cause with unions of
sex workers that are grappling with challenging working conditions and
economic realities (Kotiswaran 2011).