Get your money for nothing
And your chicks for free (Dire Straits)

My previous contribution on Assange and the Swedish sex scandal drew some ire from feminist bloggers who mostly raised Catherine MacKinnon’s domination politics to refute my arguments relating to sexual consent and the withdrawal of consent. According to some schools of thought, women are so fragile, so vulnerable and so disempowered that they should be (legally) protected from predatory men, and even themselves, it seems. I have a problem with this reasoning, as it presents a totalising logic that denies in absolute terms women’s spaces of resistance, agency and autonomy (even) within the networks and capillaries of power.

Returning to Sweden then, another sexual offence law serves to illustrate the harm caused by attempting to regulate sexual encounters. Again, I shall refer to Foucault’s warnings about normalisation, knowing full well that he is not, considered a friend of the ‘feminist movement’ (if there is indeed such a thing).

The control of prostitution became a national responsibility in Sweden under two laws, the Lex Veneris (1918) and the Vagrancy law (1885), dealing with disease and unemployment respectfully. The approach was one of coercive care and social control. Prostitution was depicted as a dangerous predisposition requiring detention and correction, one of the central concerns being the prevention of spreading venereal diseases. The legislative framework clearly defined citizenship in terms of desired normative behaviour which promoted the goals of public hygiene. Until the 1940’s the social hygiene concept of sterilising and isolating the unfit was popular, whereafter the contagion argument shifted to one of morality.

Currently sexual offence law in Sweden still contain seeds of the contagion argument, and with the threat of HIV/AIDS exposure and transmission, condom use has become another matter of ‘public policy’ in Sweden, as is illustrated in the Assange matter.

The purchase of sex is illegal in Sweden, but the selling is not. Sex workers are not charged or prosecuted, and the selling of sex is not criminalised. But, the legal presumption is that sex workers cannot consent to sex – that they are incapable of consenting to sexual intercourse in exchange for money as sex work is inherently degrading to the dignity of all women and is a form of gender-based violence. Once again, a country which is admired for its advances in securing gender equality, secures such equality by paternalistic and moralistic means, and by attempting to exercise political and legal control over the ‘docile [but dangerous] bodies’ of sex workers.

As with the laws relating to rape and sexual assault, the sexual conduct of prostitutes becomes a national problem, a concern of the state that must be dealt with in terms of the law. Sweden’s Prohibition of Purchase of Sexual Services Act 147 of 1999 renders it illegal to purchase sexual services, but not to sell them. The rationale for criminalising the purchaser but not the seller is contained in government proposition (1997): “…it is unreasonable to also criminalize the one who, at least in most cases, is the weaker party who is exploited by others who want to satisfy their own sexual desires” (my emphasis).

The Act was amended in 2005 to become part of Chapter 6 of the Swedish Penal Code. Section 11 provides that

A person who, otherwise than as previously provided in this Chapter [on Sexual Crimes], obtains a casual sexual relation in return for payment, shall be sentenced for purchase of a sexual service to a fine or imprisonment for at most six months.

The provision of the first paragraph also applies if the payment was promised or given by another person.

Pimping, facilitating and benefiting from sex work has also been criminalised. The predominant view is that prostitution is incompatible with a social order embracing gender equality and dignity, and that women cannot voluntarily become sex workers as prostitution is patriarchal and oppressive and harmful to women-and-children. Thus, there is no distinction drawn in Sweden between voluntary and coerced sex work. The view is that even adult women cannot choose sex work as a way of earning a living, and that such women should be encouraged to exit the profession, whereupon they would receive social support from the state.

(Let me state explicitly here that I am not endorsing the child sex trade or human trafficking. My concern is once more focussed on the control of what is considered to be ‘deviant’ consensual adult sexuality. As a friend of mine says, no sexual act between consenting adults lasting for longer than five seconds or less than five days should be considered illegal.)

Returning to Foucault, his concern was centred as to why an ‘unspeakable subject’ such as sex and sexuality became so widely discussed, and what this meant. Despite the prohibition of open sexuality in Victorian society, there was another tendency that became apparent:

… there emerged a political, economic and technical incitement to talk about sex. And not so much in the form of a general theory of sexuality as in the form of analysis, stocktaking, classification and specification, of quantitative or causal studies. (The History of Sexuality Vol 1 p 11)

The questions that were posed by Foucault in the first volume of The History of Sexuality were related to why sexuality became a matter of observation, surveillance and public interest, and how it became a measure of our “truth” and value as human subjects. Western society, via Christianity, in fact created an entire machinery for producing discourses about sex and sexuality as it endeavoured to create the homogeneous truth concerning ‘decent’ sex. Such a homogeneous truth can be deadly (RIP David Kato).

Foucault’s observations about this movement towards ‘normalisation’ are not only useful to queer theory. His thoughts regarding knowledge and power and resistance relate also to other marginalised groups, such as sex workers in this case.

Foucault can be read in such a way as to contribute to a feminist agenda that recognises the complexity of human life and the multiplicities of human experiences, positing none as the non-negotiable truth. Along these lines, Drucilla Cornell, as an ethical feminist, focuses on the ability for all individuals to pursue happiness in their own way, especially in matters of love and sex, which is a Foucauldian position, although she relies on Kant for much of her thinking about ideals.

Cornell argues that the achievement of formal legal equality with men does not offer the kind of relational freedom that she writes about, in part because men themselves are not fully free. Instead, women must focus on ensuring that they face minimal interference from the state and from oppressive cultural norms. Included in the feminist agenda, according to Cornell, should be respect for controversial individual choices. This position allows Cornell to support both stay-at-home mothers and women engaging in sex work if these women are pursuing their own pleasure.

Rather than dictating from ivory towers as to what marginalised women or men need, it would be far more productive to lend support to workers, including sex workers, while at the same time listening to their concerns. This approach can be illustrated by recent developments in South African law.

Although prostitution is still illegal in South Africa after a failed constitutional challenge to section 20 of the Sexual Offences Act 23 of 1957 in the case of S v Jordan and Others 2002 (2) SACR 499 (CC), and remains illegal after more than ten years of research and public debate, a new development in labour law jurisprudence illustrates how sex work can be ‘dealt with’ in such a manner as to protect the human rights of sex workers without moralising or obsessing about the nature of the work.

“Kylie” was employed as a full-time employee at Brigitte’s massage parlour in Cape Town.  She provided personal services to clients for reward, including “massage, intercourse, pelvic massage, foot fetishes, and dominance”. She worked for 14 hours a day from 8 am to 10 pm and lived on the parlour premises. There was no dispute that her work was in contravention of the Sexual Offences Act at the time. After working at the massage parlour for 13 years, (from 1993 to 2006) Kylie was summarily dismissed from her employment for not obeying the rules of the brothel, including refusing to perform fellatio on clients.

In an unprecedented move, “Kylie” decided to sue her employer for unfair dismissal based on the above-mentioned facts. Having failed in the Labour Court for the predictable reason that the courts “ought not to sanction or encourage illegal activity”, she lodged an appeal with the Labour Appeal Court.

The latter court held In Kylie v CCMA 2010 (10) BCLR 1029 (LAC) that although the contract between the parties was unlawful, an employment relationship existed between them which fell within the protective scope of the Labour Relations Act 66 of 1995 (the LRA as amended). The issue was then purely whether “Kylie” (the appellant) could seek a remedy for unfair labour practice, as provided for by the 1996 Constitution and enacted in South African labour legislation. In an unexpected and watermark judgment the court held that the purpose of the Labour Relations Act was to ensure that the dignity of workers is respected. In addition, section 23 of the 1996 Constitution provides for the rights to fair labour practice and decent working conditions. As such, courts must safeguard vulnerable employees who are exploited by employers, including “sex workers”:

In the circumstances, where a sex worker forms part of a vulnerable class by the nature of the work that she performs and the position that she holds and she is subject to potential exploitation, abuse and assaults on her dignity, there is, on the basis of the finding in this judgment, no principled reason by which she should not be entitled to some constitutional protection designed to protect her dignity and which protection by extension has now been operationalised in the LRA. (Kylie para. 44).

The court thus upheld the appeal and ordered that the Commission for Conciliation, Mediation and Arbitration (CCMA) had jurisdiction to hear the matter.

Some feminist literature endorses a depressing and essentialist picture of sexuality whilst optimistically relying on the law to transform social and sexual relations. As Andrea Dworkin has proclaimed,

[p]rostitution is not an idea. It is the mouth, the vagina, the rectum, penetrated usually by a penis, sometimes hands, sometimes objects, by one man and then another and then another and then another and then another. That’s what it is. (my emphasis).

Dworkin depicts all prostitutes as passive victims: The Penetrated. This is not the only truth or the only story. It is a perspective based upon a valid personal experience of a sexed body. However, her voice – as passionate and concerned as it was – cannot speak for all sexed bodies. There is no doubt that sexuality matters. But, as Foucault and Cornell argue, it is not a matter for the state and its institutions.

Sweden wishes to ‘export’ its method of social control, and the United Kingdom is considering the adoption of this abolitionist model. I would suggest rather looking to the Southern tip of Africa for guidance.