Disembodied knowledge: law’s incapacity to provide justice for prostitutes in Western Australia

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Introduction

Set in 1940s America, Sartre’s (1965) play entitled The Respectable Prostitute recounts events following the unprovoked murder of an unnamed black man on a train. Lizzie, a prostitute, witnesses the murder. A day or so later, a senator and his son Fred, who by then is Lizzie’s client, set about manipulating Lizzie into lying about the murder to implicate another black man, referred to as the ‘negro’, in the murder. The senator and Fred want Lizzie to lie about the events to protect the senator’s nephew Thomas who is the murderer. Fred is at Lizzie’s flat when the ‘negro’ knocks on the door to beg Lizzie to save him by telling the truth in a court of law. Initially, Lizzie refuses to agree to lie to protect Thomas. However, the senator and Fred’s deceptive tactics eventually ‘crush’ Lizzie and she relents, agreeing to lie in court to save Thomas. As events unfold, we learn that Lizzie had been lied to, threatened with strangulation, and twice cheated out of an agreed sum of money, owed first for sex and then for lying.

As a sociologist, I see Lizzie the prostitute and the innocent black man as belonging to separate marginal social groups when prostitution was illegal and racism legitimate.1 Sartre (1965: 20) implies that Fred, Thomas, the senator and Lizzie are white from Fred’s line, ‘we don’t like niggers much here. Nor white girls who play around with them’ (Sartre, 1965: 20), a threat he uses when manipulating Lizzie to lie. Though their reactions and experiences of oppression and domination differ, these two ‘devils’ as they were called by Fred (see Sartre, 1965: 20) could not expect equality before the law or a fair hearing. Simply, legal protections were not available to prostitutes or people of colour at that time in the ‘Deep South’ of America.

If legal justice is taken to mean ‘fairness, desert and entitlements’, ‘what is due or owed to persons’ (Beauchamp and Childress, 2001: 226) then legal justice is pivotal to protecting individuals ascribed with minority group status. I take Foltz and Foltz’s (2006) point, however, that justice may have little to do with law, or at least, efficient legal practice is not synonymous with justice. For my purposes here, I treat law as ‘standard setting and legislation’ (Teubner, 2009: 3) that reconfigure and reproduce just and unjust social structures. Justice is taken to be not only a legal concept or principle. Instead, justice is entwined with multiple factors affected by legislative decisions.

Accepting the view that justice is multifactorial, where legislative decisions are but one aspect, this paper assesses how prostitutes in Western Australia (WA) will be affected by proposed legislation drafted in a green Bill. The legal situation for WA prostitutes as of April 2012 is stated by Premier Colin Barnett (2007: 1):

Prostitution in itself is not illegal. What is illegal under the Criminal Code is to live off the earnings of prostitutes; in other words, running a brothel, streetwalking and procuring a person to work as a prostitute.

However, in attempting to address anomalies in the current legislation, the Liberal government’s proposed legislation I argue is likely to contribute to reproducing discrimination and disadvantages for Western Australian prostitutes. This paper argues that the proposed Prostitution Act 2011 (WA) will reproduce injustices, including consigning prostitutes as a social group to the marginalised ‘Other’.

To do this, I rely on Iris Marion Young’s (1990: 37) classic work on injustice. For her, injustice is, ‘oppression, the institutional constraint on self-development, and domination, the institutional constraint on self-determination’. Young’s approach to conceptualising structural oppression takes into account relations among groups that ‘do not always fit the paradigm of conscious and intentional oppression of one group by another’, though acts of violence towards a particular racial group for example may well be intentional (Young, 1990: 41-42). Young’s insights guide my analysis, not only of the legitimate coercive criminal justice enforcement procedures that come into play, but also the everyday unjust social practices that the Prostitution Bill 2011 (WA) ) (the Bill) does not address. Nevertheless, the Bill promotes specific social norms in circumscribing prostitutes’ working arrangements. The paper analyses the paradoxical situation where the Bill, though attempting to remove old injustices, creates new injustices (see Teubner, 2008: 329).

As a caveat, I shirk from recommending amendments to the Bill to avoid adding to disembodied knowledge on prostitution. Instead, I expose how the proposed legislation subverts justice for prostitutes, as a stigmatised social group in WA. I raise questions as to whether the Bill grants prostitutes moral worth, which is the basis of a good life, according to Young (1990, 37). As prostitution is not and will not be criminalised, prostitutes deserve to work within structures providing a ‘good life’ that was denied to Lizzie. If justice enables ‘all to meet their needs and exercise their freedom’, then ‘justice requires that all be able to express their needs’ (Young 1990, 34). As Kennedy (1992: 12) argues, the law is unlikely to be ‘completely out of step with public feeling or it will be held in contempt’.

Introducing law as disembodied knowledge

The Bill’s provisions were founded on disinterested, objective, abstract, impartial and disembodied knowledges (see Grosz, 1994: 191). In another legal context, Foltz and Foltz (2006: 465) associate impartiality with a call for uniformity, order and certainty, thereby ruling out chance and ‘arbitrary and fortuitous human nature’. Impartiality requires justice to be blind (Foltz and Foltz, 2006: 456). In giving primacy to legal constructions of objective knowledge over lived experiences of prostitutes, the Bill reinforces the mind/body dichotomy or binary opposition.

Grosz (1994: 209) suggests that to avoid reductionist thinking that relies on binary oppositions, an alternative approach to understanding relations could be based on a model resembling the Möbius strip. For Grosz (1994: 209-210),

the Möbius strip model has the advantage of showing that there can be a relation between two “things” – mind and body – which presumes neither their identity nor their radical disjunction, a model which shows that while there are disparate “things” being related, they have the capacity to twist one into the other.

If such a model was considered as the Bill was drafted, the legislator would be required to take into account the interrelatedness of the effects of its provisions on all affected people. Legislative reform would take into account differing features and emphases expressed by those most heavily affected. Much more could have been made of processes taken in determining appropriate legal responses to regulating prostitution. Though public comment was invited and WA’s Attorney General responded selectively to the public’s recommendations, and the Bill revised and sections numbered differently from the draft copy issued for public comment, the overarching approach to legislative reform taken by the State Liberal Government remains largely unchanged to this point.

Unlike Lizzie, Australian sex workers are represented nationally by the Scarlet Alliance, the national Australian Sex Worker Association, which formed in 1989 to promote ‘the interests of sex workers and sex worker organisations, projects, groups and networks in Australia’ (Scarlet Alliance, 2011). The organisation seeks to advance sex workers’ human rights, limit discrimination and stigmatisation, provide information and training, and represent sex workers on international and national fora (see Scarlet Alliance Objectives). Thus, the Scarlet Alliance’s (2011) position represents the ‘lived experiences’ of prostitutes or their embodied knowledges. For Grosz (1994: 7), to focus on ‘either one of the binary terms at the expense of the other’ is to leave their interaction, ‘unexplained, explained away, impossible’. In January 2011, the Scarlet Alliance had presented its third formal request to meet with the Attorney General to discuss their position and concerns with the Bill as two earlier requests had been denied (see Scarlet Alliance, 2011). The Scarlet Alliance has denounced the draft Bill as ‘radical and hostile legislation for sex workers’ (2011: 2). Further, Scarlet Alliance’s chief executive officer, Janelle Fawkes, is reported as having said the Bill will criminalise, marginalise and endanger the lives of sex workers’ (Robertson 2011). As individual prostitutes are likely to be profoundly affected once the Bill is enacted, issues of social justice arise.

Giving voice to prostitutes’ concerns has rarely been on political agendas, not least because prostitution is a gendered social practice serviced predominantly by women. Thus, the Bill applies mostly to women prostitutes though it refers to male prostitutes. Prostitutes also occupy a range of occupations and statuses as there ‘is no single, universal practice of prostitution’ (Schotten, 2005: 237). Further, as women and men prostitutes do not comprise an homogeneous group, the lived experiences of individual prostitutes are likely to vary greatly.

Western Australia’s Prostitution Bill 2011 (WA)

Following their win in the 2008 State election, the Barnett government drafted the Bill, issuing it for public comment in July 2011. The proposed legislation will have relevance for an estimated 1700 prostitutes in WA and 38 known brothels; 30 in the Perth metropolitan area as of November 2010 (Porter, 2010: 1). Given, however, that prostitution is largely hidden work these figures are unlikely to represent the population of prostitutes in WA.

How best to regulate prostitution has challenged Labor and Liberal governments in WA, especially since the Prostitution Act 2000 (WA) (the Act) was found to be unenforceable. As noted above, managing a brothel is illegal in WA but brothel managers have not been convicted of an offence. The following example illustrates what happens when regulations are unworkable and reforms overdue. In 2003, the brothel owner, Ms Kenworthy, found herself caught up for the third time in the contradictions inherent in unsatisfactory regulations. Ms Kenworthy received much press attention following her arrest ‘after a police raid on her Burswood brothel’ (Adelaide Advertiser, 2003; Kwintowski, 2003). She was charged with keeping a brothel – a charge ‘laid under the 105-year-old Police Act’ and the ‘Containment Policy’, after 18 years in the brothel managing business (Adelaide Advertiser, 2003). In early 2004, the charges against Ms Kenworthy were dropped ‘after police chose to avoid a costly four-day trial by not presenting any evidence’ (ABC News, 2004). Ms Kenworthy had also been charged seven years previously ‘with the same offence’, but that matter was also dismissed because it was deemed not to be ‘in the public interest’ (Kwintowski, 2003). Further, in 2002, Ms Kenworthy had been charged under WA’s criminal code for keeping rooms in a brothel (Hickman, 2003). These charges were also withdrawn (Hickman, 2003; Magill, 2003). As the Kenworthy example illustrates, the Police Act, the ‘Containment Policy’ and Prostitution Act 2000 (WA) were unsatisfactory as a basis for regulating prostitution in WA. The necessary debates ensued to find a replacement regime.

Over the first decade of the twenty first century, various attempts were made to amend the regulatory framework for sex workers. In 2008, for example, the Carpenter Labor government came close to amending the Act comprehensively in its bid to legalise sex work, replace pejorative language with ‘neutral’ language, reduce police involvement and relegate regulatory responsibilities to local government departments. Sex work was to be managed without discrimination and regulated on a par with occupations such as hairdressing and catering. Labor’s approach to regulating sex work followed the minimalist decriminalised licensing model operating in New Zealand and some other Australian States (see Crofts and Summerfield 2008: 209; Crofts and Summerfield, 2007: 296). As the proposed amendments to the Act were not proclaimed before the Carpenter government lost the 2008 election, it’s now WA’s conservative Liberal government’s turn to repeal the Act and other relevant legislation, replacing it with the Prostitution Act 2011 (WA).

How the Liberal government proposes to regulate prostitution comes as no surprise. The key to its position can be found in Weitzer’s (2009) analysis of the ‘moral panic’ at State level promulgated by the Liberals while opposing Labor’s bid to legalise prostitution. Weitzer’s (2009, 103) insightful analysis of the position taken by the Liberals confirm that their claims are ‘derived from the oppression model’; whereas, the Labor government’s position at the time, feature the ‘sex work paradigm and the associated harm-reduction policy’. The perceived need for such considerations together with prostitution’s social and moral status marks it as different from other forms of wage labour. Nevertheless, formulating an appropriate regulatory regime for prostitution is complicated not least because commercial sex has historical, political, economic, criminal and moral legacies riddled with stereotypes (see Sanders, 2005).

Laite (2008: 110) warns further that prostitution law is ‘most sensitive to changes in public opinion, socio-political trends and police attitudes’; thus, the legislature is required to respond to competing and contradictory calls from all social directions including those from Scarlet Alliance and the anti-prostitution lobby. Law, however, is but one social practice influencing the social-cultural production of prostitution (Zatz, 1997: 303). Nevertheless, law makers’ task in drafting legislation is to impose some certainties or internal consistency according to their understandings of rational ‘norm-oriented decision making’ in setting standards via legislation (Teubner, 2009: 13, 3). This paper focuses now on the Liberal Government’s implied political/moral position in the Bill (and some supporting documents) and how this will affect the social or lived experiences of prostitutes in WA. Judgments about whether prostitution as an occupation enables women and men to exercise agency or whether they are victims of an unjust social system are not addressed here.

In general, abolishing prostitution or criminalising the conduct of consumers of prostitution services have never been seriously considered by either main political party in WA. From WA’s gold rush days, prostitution has been celebrated, with brothels in Kalgoorlie, a gold mining town, remaining a prime local tourist attraction (McKewon, 2005). Further, the former Liberal leader, Matt Birney, for example, ‘vowed to strongly resist any move from within his party to shut down brothels in Western Australia’ (ABC News, 2007). Mr Birney believes ‘shutting down all brothels would have a negative impact on the community’ and would happen over his ‘dead body’ (ABC News, 2007). Such pronouncements stifled the position held by Liberal’s police spokesman, Rob Johnson, who was reported to have said, ‘every brothel in the state should be closed down’ (ABC News, 2007). As a consequence, the Bill specifies legal and illegal forms of prostitution as well as requirements for managing the sex industry. Some forms of prostitution such as street walking (s9 (1)), trafficking or forcing women into prostitution (s 11) and child prostitution (s9 (2)) remain criminal offences. The Bill legalises prostitution between consenting adults, providing prostitution business managers and self-employed prostitutes are licensed. Thus, the Bill removes the legislative and policy anomaly mentioned above for managing a brothel. My focus though is on the position taken in the draft Bill and some amendments that appeared in November 2011 which, when enacted, will criminalise aspects of prostitutes’ working lives. The proposed legislation will also affect the daily lives of prostitutes who work legitimately within the proposed licensing scheme. Considered here is how the proposed law is likely to reproduce discriminatory social structures and social disadvantages for prostitutes.

Though the Bill 2011 seeks to remove ambiguities in the current legislation, its effects, which are likely to produce new injustices, require critical attention. To go some way to determining its effects, I explore how the new regulatory regime is likely to affect WA prostitutes. Young’s (1990) five faces of oppression and domination: marginalisation, exploitation, powerlessness, cultural imperialism and violence guide this analysis. Oppression is taken to designate ‘the disadvantage and injustice some people suffer not because of a tyrannical power coerces them, but because of the everyday practices of a well-intentional liberal society’ (Young, 1990: 41). Though Young (1990) does not refer directly to prostitutes, her general insights have relevance for analysing how the proposed legislation is likely to affect WA prostitutes.

1. Marginalisation

For my purposes here, marginalization ‘involves the deprivation of cultural, practical, and institutionalized conditions for exercising capacities in a context of recognition and interaction’ (Young, 1990: 55). Clearly, prostitutes’ marginalisation is not necessarily economic, unlike for example that of unemployed, homeless people. Instead, their marginalisation comes from social stigma attached to selling sex for a living. Prostitutes’ bodies are not respected bodies, despite the fact that sexualised bodies are used extensively in service industries and advertising (see Sanders, 2005). Tied in with their disrespected bodies is a prostitute’s marginalised social identity. These factors, lack of respect, exclusion, stigmatisation on the basis of differences, tend to drive the targeted social group underground (Gruskin and Ferguson, 2009: 110), whether the practice of prostitution is legal or not.

New injustices

The Bill reinforces prostitutes’ marginal social position as the Other in at least three ways. First, prostitutes, whether licensed to work in brothels or self-employed, will be required to work only in designated zones. Out of legal bounds to prostitutes at work are public places (s 8-10), licensed premises (s 22), the streets and residential or special use areas (s 74). Prostitutes at work will be geographically and physically separated from other residents. This suggests that their work should remain hidden from public view so that it is diminished as public culture. Prostitutes at work are considered a moral risk. The Liberal government’s moral order discourse aims to protect ‘ordinary Western Australians in residential areas’ (Porter, 2010: 6) and preserve ‘clean spaces for clean people’ (Sanders, 2005: 13). Implied here is that prostitutes are neither ‘ordinary’ nor residential. Yet, prostitutes return to their families in the suburbs at the end of each shift. Colin Barnett, when leader of Liberal opposition party in 2007 explains his position:

 I will oppose any brothel, legal or illegal, in my electorate. It is my duty as a member of parliament to protect my community to the best of my ability. I do not want to see young girls propositioned or taken for sex workers as they come out of clubs and pubs. I do not want to see women exploited or harassed. I do not want to see men who live in my electorate trying to find prostitutes in my electorate. If they must, they can go somewhere else. I do not want prostitution in my electorate and will do anything I can to stop it. As I said, I will not allow women and young girls in my electorate to be placed at risk. I will do anything I can to protect them, because they will be at risk.

Similarly, the Bill reinforces a view that prostitutes differ from ‘ordinary’ people.

Further, Barnett (2007: 1) had argued earlier that prostitution will increase under legislation proposed by the Carpenter Labor government. He explains,

 It will lead to increased prostitution and legal brothels, and a proliferation of illegal brothels. Inevitably, it will also lead to the abuse and exploitation of women. Let it be noted that the women and men of the Australian Labor Party are voting in favour of legal brothels and prostitution and are condoning the exploitation of women – perhaps even children – in our community. (Barnett, 2007: 6).

Implied here is that women (and children) are corruptible to the lure of prostitution depending on how prostitution is regulated. Relevant here is also Jeffreys’ point about the ways in which prostitution is perceived by the regulators, the standard setters, to affect the status of all women (1995: 542).

Second, Christian Porter (2010: 1), WA’s Attorney General, goes a step further in marking out prostitutes as the Other. He refers to WA residents who are not prostitutes as not only ‘ordinary’ but also as ‘law-abiding citizens’ in his speech outlining the benefits of the Bill. Porter (2010: 1) wrote, ‘prostitution is known to be a transaction or business type that is accompanied by significant negative externalities for law-abiding citizens’. Colin Barnett (2007: 2) also asks rhetorically, ‘How can a person of good character run a brothel?’ Such positions that imply and construct prostitutes and brothel managers as criminals, reinforce stereotypical views associating prostitution with organised crime and drugs, and justify relegating a heavy police presence to regulate prostitution. Mr Porter is reported as having said, ‘police would have the power to shut illegal brothels down and would have the responsibility of responding to complaints about unlawful prostitution’ (Robertson, 2011).

The third means used in drafting the Bill to reinforce prostitutes’ marginalised position is in retaining the Act’s pejorative language. In contrast, the 2008 Carpenter Labor Government sought to reduce prostitution to a market transaction, proposing to neutralise the language of prostitution by replacing the words prostitution with sex work, prostitutes with sex workers, and brothels with sex worker businesses. Pejorative language that reinforces social stigma is largely retained in the Bill and exemplified in its proposed title: Prostitution Act 2011 (WA) (See Prostitution Bill 2011, s1). To avoid confusion, I employ the Bill’s idiom here.

2. Exploitation

Injustices associated with exploitation encompass ideas that ‘some people exercise their capacities, ... for the benefit of other people’ and ‘systematically transfer the powers of some persons to others, thereby augmenting the power of the latter’ (Young, 1990: 49). Young (1990: 50) argues that ‘social rules about what work is, who does what for whom, how work is compensated, and the social process by which the results of the work are appropriated operate to enact relations of power and inequality’ (Young, 1990: 50). Thus, prostitutes who work in prostitution businesses are subject to power relations whereby benefits flow from their labour to prostitution business owners and clients.

WA prostitutes do have legal protections against some forms of exploitation at work, unlike Lizzie, Sartre’s fictional prostitute. For some time now, WA prostitutes have workers’ rights and access to legal protections as do all workers under the Workers’ Compensation and Injury Management Act 1981. The new legislation will protect these entitlements and a prostitute who refuses to do ‘that kind of work’ (s 26).

Exploitation also materialises when third parties such as managers of prostitution businesses live off the proceeds of prostitutes’ earnings (see Young, 1990: 49). Prostitutes who work in brothels as do other employees suffer ‘material deprivation’ and ‘a loss of control, and hence are deprived of important elements of self-respect’ (Young, 1990: 49). Women’s working life energies are ‘expended to maintain and augment the power, status, and wealth’ of prostitution business managers (see Young, 1990: 50). Not only do managers benefit; but legalised prostitution legitimises, in applying Young’s words, the ‘transfer of the fruits of material labor to men and transfer of nurturing and sexual energies to men’ (Young, 1990: 50), albeit within a specific social grouping. In situations fostering an unequal distribution of benefits (Young, 1990: 53), workers including prostitutes are exploited.

As noted above, until the Bill is enacted, managing a brothel was illegal under s 190 of the Criminal Code 1913 (WA); but, brothels have been ‘tacitly permitted to operate in predefined areas’ (Porter, 2010: 1). The Bill’s proposed licensing scheme will remove the ambiguity.

Reinforcing injustices

Though necessary, by legalising prostitution businesses, the current government, as did its Labor party predecessors, legitimises the exploitation of prostitutes and condones associated injustices. The Australian Christian Lobby, for example, complained that ‘a government that legitimised prostitution through legislation was legitimising the exploitation and abuse of women’ (Robertson, 2011). Similarly, the Swedish model criminalises the purchase of sexual services, while decriminalising the women involved as they are seen as victims of abuse (Jeffreys, 2009: 203). I empathise with this position. In an ideal world there’d be no need to supply sex services or participate in forms of demeaning work. However, given WA’s history and cultural milieu mentioned above, neither the WA legislature nor the Scarlet Alliance support criminalising the supply or purchase of sex services. Thus, I reluctantly support a form of legalised prostitution for fear that prostitutes will find themselves in Lizzie’s position: running from the law and without legal recourse where justice is due.

3. Powerlessness

Powerlessness is typically associated with the life of non-professionals who ‘lack autonomy in their working lives’ and ‘orientation toward the progressive development of capacities and avenues for recognition’ (Young, 1990: 57). Respectability is generally associated with professional culture (Young, 1990: 57), not occupations such as prostitution. Accompanying a prostitute’s powerlessness, in addition to social stigma, is disrespect. The lack of respectability that prostitutes encounter is likely to create obstacles, as it does for other non-professionals, in their dealings with services, public and private (see Young, 1990: 58).

Prostitutes working in prostitution businesses experience forms of powerlessness typical of all workers working in hierarchal arrangements. Similar to other feminised occupations, sexual labour is ‘menial labor’ as it involves service and is ‘servile’ in which a ‘person is subject to taking orders from many people’ (Young, 1990: 52), including clients.

The Bill grants some power to prostitutes in protecting their right at any time to refuse to take part in or to continue to take part in a commercial sex act and protections against inducing people into prostitution (s12, s11). The Bill was also amended in late 2011 to include a ‘special fund to finance services to assist individuals who wish to leave the prostitution industry who may need help in the areas of education, training, employment, accommodation, financial management, alcohol and drug addiction or other issues’ (Department of Attorney General, 2011). The ‘exit fund’ was devised in response to community reactions to the Bill (Robertson, 2011; Department of Attorney General, 2011). Under the Swedish model, prostitutes are also assisted to leave the occupation (See Jeffreys, 2009: 203). Though this position has merit, the assumption here is that prostitutes want and need help to leave their occupation, and to gain respect.

New Injustices

Consider the requirement for prostitutes and auxiliary staff to be licensed under a scheme administered by the State’s Department of Racing, Gaming and Liquor and to operate from a ‘permitted zone after planning approval’ (Porter, 2010: 3). Strict requirements will apply. Individuals will have reached 18 years of age (s 52 (2) (b), be an Australian citizen or a permanent resident of Australia (s 52 (2) (c)), not holders of student or other visas (Porter, 2010: 3), permit fingerprints and palm prints for criminal record checks (s 49) and checks for criminal associations (Porter, 2010: 3). This means increased requirements, surveillance and criminal penalties for non compliance. The Bill consequently grants power to the police to assume responsibility for investigating or closing ‘inappropriately located unlawful premises’ (Porter, 2010:4). Why should this matter if prostitutes conform to regulatory requirements? It matters because police/prostitute relations are complicated, which makes granting police greater powers problematic. Because prostitution is a marginalised and stigmatised occupation, prostitutes generally prefer to remain below police radar. Their social position makes it difficult for prostitutes to seek protection from the police who are also enforcers of laws affecting them. The more contact prostitutes have with the police, the more likely they are to be exposed to police harassment (Babach and Metzenrath, 2000: 8). New injustices flow from tighter regulation coupled with increased police powers and penalties for non-compliance. A prostitute is further stigmatised once their information about having worked as a prostitute appears on the public records. Future employment prospects are likely to be affected adversely.

WA prostitutes have an alternative to working in a prostitution business, to having more power over their working lives. To avoid exploitation by a prostitution business owner, a prostitute may choose to be self employed (s23). That choice however brings further injustices as self employed prostitutes must be licensed (s13) and conduct their business from a lawful place (s44). Not only are added expenses involved, but given the stigmatised position of prostitutes, privacy concerns, and confidentiality and information protections are elevated to a new level of concern.

Self-employed prostitutes and collectives of two will be permitted (s23), providing they are licensed and work in designated areas. This arrangement would incur considerable expenses for ‘a private sex worker’ (Scarlet Alliance, 2011: 10). Mobile telephone numbers must not appear on advertisements for prostitution businesses (Department of Attorney General, 2011). Escorts and escort agencies are prohibited (Department of Attorney General, 2011). This situation encourages two systems to operate; one that is legal, the other illegal. Those involved in the illegal system are unlikely to seek police protections. Therefore they are especially vulnerable to exploitation and violence.

Health laws aimed specifically at prostitutes discursively position them as diseased and irresponsible (Banach and Metzenrath, 2000: 10), despite the fact that prostitutes’ disease levels are less than the general population (Banach and Metzenrath, 2000: 9). As Wilson et al. (2010: 117) found in Victoria, ‘the incidence and prevalence of STIs in sex workers are very low, especially since there is almost universal condom use at work’. Mandatory health checks undermine prostitutes’ power by encouraging clients to assume prostitutes are healthy and not a health risk to them, and may be reluctant to use prophylactics (Banach and Metzenrath, 2000: 11).

4. Cultural imperialism

Cultural imperialism involves attempts to universalise a dominant group’s perspective, experiences and culture as the norm (see Young, 1990: 59). The dominant group’s meanings inform decisions rendering the dominated group invisible at the same time as the culturally dominated group is stereotyped as the Other (see Young, 1990: 59). The Other is ‘reconstructed largely as deviance and inferiority’ (Young, 1990: 59) and different (Young, 1990: 60). The legislature is unconcerned about responding to prostitutes’ lived experiences, their embodied knowledges. The dominant cultural group via legislation in this case imposes its cultural understandings of prostitution on prostitutes and prostitution business owners’ working lives.

New injustices

Typical business practices will be denied. Restrictions include: the number of businesses one person may legally operate initially (s 18), a manager must be present (s19), licensing requirements (s20), a manager must not act as a prostitute on the same shift (s 21), the number of prostitution businesses to be conducted from a place (s23), and advertising and signage requirements (s 24). Amended provisions include the number of staff present at any time in a prostitution business and the number of rooms though ‘not specified in the Bill but may be restricted through conditions attached to the licence’ (The Department of Attorney General, 2011). Serious penalties are attached to violations of these restrictions. A prostitute found to be working illegally in her or his home may be charged with an offence and fined $6000 (s44). In this sense, the ‘reality of prostitutes’ daily lives’ (see Miller, 2004: 145) is largely ignored.

5. Violence

Some social groups are more vulnerable to violent attacks than others. As Young (1990: 61) writes, ‘Members of some groups live with the knowledge that they must fear random, unprovoked attacks on their persons or property, which have no motive but to damage, humiliate, or destroy the person’. Prostitutes are one such group. A murdered Perth prostitute in 1998 (Gibson, 1999), an illegally run brothel (Kwintowski, 2003), a under-age girl (13 years) employed as a prostitute (Lam, 2003: 13), prostitutes with criminal associations (Moore, 2008) and two sex workers raped and ‘feared for their lives’ (Gibson, 2008) are reasons among many as to why WA prostitutes must have access to legal protections.

Prostitution is considered a form of violence against women (Jeffreys, 2009: 203). Jeffreys (2009: 185-186) identifies two forms of physical violence: unpaid violence including rape, beatings and murder identified above, and paid for violence associated with unwanted and painful penetration of any or all orifices that affects prostitutes’ psychological and physical health. A prostitute who works in a prostitution business may have nominal protections (such as access to an alarm system) that a sole self-employed prostitute may not have access to. An alarm system, however, may provide limited protections when violence is unexpected and imminent, as Kate Holden’s (2007) memoir attests. Prostitutes who are especially vulnerable to violence are those known not to comply with strict regulations as they are unlikely to report an attack. In any event, prostitutes must manage encounters so as to avoid costs to their physical and emotional selves (see Brewis and Linstead, 1998: 240).

New injustices

The Bill stamps approval on prostitution and its exploitative practices. Legalised prostitution condones prostitution. The embodiment of physical pain and suffering of prostitutes has not and cannot feature in the Bill. If prostitutes’ pain was considered relevant the only approach would be to criminalise the purchase of prostitution services and provide alternative employment opportunities. This will not happen as long as the demand for prostitution remains unquestioned. The demand side of the prostitution transaction, males’ buying habits and habits of sexual consumption’ (Schotten, 2005: 233), is largely overlooked, except that clients are to report suspected illegal prostitution (see s 14 covering instances of sexual servitude). Operators and managers, however, are obligated to display information about a prostitute’s right of refusal (s 25). Section 12 (1) of the Bill protects individual prostitutes in that despite having a contract to act as a prostitute, they may refuse to take part in an act of prostitution. Under s 12 (2), a contract does not constitute consent. The practicality of these provisions for a prostitute at the moment when they refuse to work requires consideration of their embodiment, their powerlessness, lack of respectability and potential for violence. These protections are likely to be minimal if Gruskin and Ferguson (2011: 111) are correct in suggesting that ‘sex workers the world over routinely face violence from their clients as well as the police, and are rarely able to use the legal system to their benefit’. Legalising prostitution is a level up though from no protections at all for prostitutes.

Conclusion

The Prostitution Bill 2011 (WA) addresses some anomalies with the ineffective Prostitution Act 2000 (WA) and other legislation. It awards prostitutes avenues for legal justice and legal rights that were denied Lizzie. However, it is mistaken to assume that legalising prostitution will eliminate illegal prostitution or that prostitutes will access legal protections for all violations. Moreover, the Bill reproduces and produces new injustices associated with oppression and domination that for example the 2008 Carpenter Labor government’s proposed legislation may have reduced. Once enacted, the legislation will regulate prostitution intensely, increasing penalties for non-compliance and boosting police involvement. It constructs prostitutes as the Other; thereby, reproducing social stigma and disrespect. The Bill also reinforces institutional constraints on prostitutes’ self-development and self-determination, and consequently opportunities for a ‘good life’. For as long as the prostitution industry is regulated through the lens of disembodied knowledge, imposed legislative reforms will reproduce oppressive social structures and discriminatory practices. Legal justice will remain blind to the consequences of legislative reforms. Further, the demand side, clients’ lives and constructions of masculinity remain unquestioned and unattended. Instead, there is a place for legislative reforms to be informed by embodied knowledges and public opinion, Australia’s international human rights commitments focusing specifically on gendered discriminatory practices, and a sociologically informed agenda. A genuine commitment to including prostitutes and their representatives in the processes of developing an appropriate regulatory regime may assist in avoiding reinforcing injustices. The political will to address gendered injustices associated with sex work in Western Australia is found wanting in the Bill.

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Endnotes

1. The ‘separate but equal’ doctrine was stuck down in 1954 see Brown v Board of Education decision.

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Acknowledgements

It was with Dr Julie Manville’s encouragement and inspiration that Ann-Claire Larsen become interested in how sex work is regulated. Julie was far too young to die in August 2009.

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References

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