Lessons Learned at Harvard Law School

Elizabeth's picture

Last night's panel discussion of sex work and civil liberties at Harvard Law School, hosted by the HLS ACLU, the American Constitution Society and the Women's Law Association (?) was a learning experience. I learned that some formats, which sound helpful in theory, are very limiting in practice. I learned that one should never make assumptions about an audience. And I learned that when you've had the last word and the panel is officially over, letting it be reopened is a very bad idea. 

The panel was extremely well moderated. Professor Glen Cohen promised at the beginning to keep a tight rein on the discussion and he did. That made me feel confident and safe going into the discussion that it would not become a shouting match nor be derailed by questions that are not really questions. Unfortunately that limited the opportunities for panelists to respond to each other. It meant that if we were to play by the rules (where did I learn to be such a good girl?) we could not easily challenge each other's evidence, or revisit questions once the discussion had moved on. For example, if an audience member had a question specifically for Melissa Farley, and Farley answered using anecdotal or unreliable evidence, as soon the question was answered a new question was invited. There were only a few questions that were posed to the whole panel and it was hard to get back to earlier questions without deviating from the format. So, lesson number one: advocate for format change or break the rules if necessary to get important information out.

I expected an audience that wanted to focus on the civil liberties-related questions surrounding prostitution. I expected a conversation that explored nuances of sexual freedom and the complexities of discerning where personal freedoms intrude on the rights of others, and where labor rights, human rights and civil rights overlap. Both Sam Majic and I prepared remarks that were centered on that discussion. Sam and I even had a fortuitously good division of labor in that she addressed questions of government, nonprofits, and civil liberties and I addressed questions of sexuality, labor, and civil liberties.

Unfortunately with few exceptions the audience wanted to talk about the awfulness of some kinds of prostitution while taking as gospel that involuntary servitude and rape are by definition aspects of all prostitution. I was not prepared for an audience that accepted that all prostitution was akin to slavery and that was not going to be swayed by evidence.

Given the format and the audience there were many things I wanted to talk about that we did not have time to discuss. I'd like to identify a few of them here. I encourage discussion in the comments. 

The politics of fear and emotion threaten civil liberties

Civil liberties are at risk when policy is made based on moral judgment rather than systematic, reliable evidence and reason. Discussions of sex work, like the one last night, illustrate the willingness of many to accept anecdotal and unreliable evidence and emotion as guiding principles for policy. The politics of fear that gave us the USA Patriot Act, overly broad use of sex offender registries and residency restrictions that create greater risk of recidivism are just two very different examples of the politics of fear restricting civil liberties in ways that hurt individuals, families and communities.

Assumptions about sexuality are a big part of the problem with conversations about sex work

The discussion we had at the panel made it clear to me that it is not only assumptions about women's sexuality that are problematic in feminist discourse about prostitution but also assumptions about men's sexuality. The antiprostitution discourse assumes the worst of men's sexuality and the most limited of women's. Several questioners, and both Farley and Carter asserted that men who purchase sex are always looking for disconnected, anonymous, violent and objectifying sex. A questioner in the audience asserted that men seek out prostitutes to have the kinds of sex that women will not have for free. The audience generally accepted these statements judging from the nods, and nobody challenged them in follow up questions. 

Inability to focus on points of agreement

There were points of agreement we each clearly acknowledged. We all agreed that slavery, rape, and violence were serious human rights violations, that they were social problems that exist beyond the sex industry, and that they require serious responses. We all agreed that misogyny, patriarchy, sexism, racism, homophobia, heterosexism and economic inequality are root problems and that dramatic social change is necessary to create a society that is truly just. A conversation focused on strategies for fostering the social changes necessary to create a just society that would have been interesting. When that important conversation is subverted by a debate over whether or not all or most prostitution is the same as rape and sexual assault then a productive conversation is impossible.

An unexpected and unpursued line of discussion: antiprostitution and antimarriage

I raised in my opening comments and in answer to a question the fact that marriage is also seen by some as an institution that exposes women to violence and exploitation but I claimed that you rarely hear people talk about criminalizing it. Several women in the audience indicated by speaking out or nodding that they think marriage should be eliminated. That conversation would have been a fabulous one to continue and yet there was not really a way to do that. I have argued in terms of the same sex marriage debate that marriage should not be the goal but that equal rights under the law should be the goal and that rights and relationship recognition should not hinge on marriage. (See the recent Woodhull Freedom Foundation statement in support of the DC domestic partner registry for more on why marriage should not be the only form of recognized relationship and why privileging marriage over other kinds of relationships is unjust.)

Connections between Prostitution and Legal Sex Work

A questioner asked Melissa Farley if, given her antiprostitution stance, she also would support a ban on pornography since that was also paid sex. His question, essentially, boiled down to whether having a camera in the room made the paying of someone to have sex a somehow more acceptable. Farley evaded the question by referring to her definition of prostitution and saying that if the pornography in question fit that definition then, well, her answer would be clear. It was frustrating because again there was an opening for an interesting discussion that there was no room to pursue.

I don’t want to make it sound like it was all missed opportunities and waylaid conversation. One of the most important things that came out of the discussion was the identification of organizations like the St. James Infirmary and HIPS, which provide services to sex workers without judgment about their work, the identification of publications like $pread Magazine which is published by and for sex workers, and of research and advocacy centers like the Sex Workers Project of the Urban Justice Center which provides methodologically sound and ethical research. Vednita Carter spoke about the important work her organization – Breaking Free - does in providing housing and much needed services to sex workers who want to get out and are willing to buy into the antiprostitution message of her agency. While I would prefer a housing-first model where services are provided and decisions to leave can be made later I am glad she is serving the population she is serving. Sam Majic noted that none of these organizations get the funding they deserve and when asked what could be done immediately to help sex workers argued for money to be poured into nonprofits that are serving disadvantaged populations so that they can focus on providing services rather than on groveling for grant money. (I’ll include a list of organizations and resources, with links, in the comments on this post.)

All in all it was a valuable learning experience and I am grateful to the Harvard Law School ACLU chapter for hosting the discussion. It was a good faith attempt to present a range of academic positions and host an intellectual discussion of the issues surrounding civil liberties and sex work. That it didn't work that way is unfortunate. I wonder if it was also inevitable.