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While the media has been strident and hysterical about rising levels of street violence, the continuing issue of violence towards street sex workers has been all but ignored. ('Is it ok to bash women if they are selling sex' The Age Chris Middendorp 16/3/2010)
How are social and criminal justice responses to sex work influenced by normative ideas about appropriate gendered behaviour for women? Discuss, using the material that you have studied this semester.
Society sets appropriate standards by which each individual, whether male or female should behave. Men are expected to embody strength and physicality, while women are seen to be exemplars of sympathy, and sociability (West & Zimmerman, 1987: 141). Yet, what happens when one doesn't act according to society's gendered rules? These ideas are manifest in both criminal justice and social responses towards sex work. An issue most people would prefer to ignore altogether is sex work which refers to the offering of sexual services in return for financial reward (Pickering, Maher & Gerard, 2009: p.ii) and can include brothel work, private work, street soliciting, bondage and discipline services, escort services, and stripping (Quadara, 2008: 3). For the purposes of this essay, I will focus predominantly on brothel and private work. What is more, popular discourses about the way women are expected to behave portends that sex workers are deviants from societal and cultural norms which advocate sympathy and sociability and compassion as acceptable feminine qualities.
Subsequently, these ideals pervade the way the criminal justice system responds to violence against sex workers and how the media portrays sex work. Key examples of this include past legislation that deemed prostitutes 'unrapeable,' legislation that terms prostitution 'organised crime', lighter sentencing for offenders and the sensationalised denigration of the sex industry in the media. Moreover, this essay will predominantly examine criminal justice responses to violence against female sex workers. It will provide discussion about how society's norms and expectations of appropriate gendered behaviour for women influence both the criminal justice system and the media, and will touch on the implications such responses have on the sex industry at large.
Normative ideas about appropriate gendered behaviour
Gender norms form a complex dichotomy that resonates in popular literature, and is acted out by men and women throughout society. In fact, examining gender differences seems to be a question of causality. It is universally accepted that men and women are biologically different and therefore must possess different character traits which are triggered by their biological sex. However, this is a limiting concept and we must analyse gender in terms of popular discourses about femininity and masculinity and how we are socialised into our gender roles. That is, women are expected to possess qualities of "emphasised femininity" such as sociability, domesticity and sympathy; while men are supposed to embody physicality, authority and aggression (Cavender, Bond-Maupin & Jurik, 1999: 644). In this regard, our society views the attainment of these gendered norms as an accomplishment; and, by correctly embodying the ideals of femininity or masculinity we are successfully doing gender (West & Zimmerman, 1987: 127). However, as sex work is perceived to not conform to these expectations, sex workers are deemed non-conformist, as not exhibiting feminine behaviour and therefore, are considered as lesser human beings. These notions of femininity and masculinity link closely to the way the criminal justice system responds to cases of violence against sex workers.
Criminal Justice responses to the violence experienced by sex workers
The idea violence is an inevitable outcome of sex work
Popular rhetoric about sex workers suggests that violence is an inevitable and accepted part of the sex industry. This rhetoric is expressed by police and other agencies in the criminal justice system, both of which habitually and often unconsciously assess the worthiness of women according to the shared social expectations and discourses about what behaviour is appropriate for women (Quadara, 2008). Indeed, 1.9% of women experienced sexual violence in 1996; and of these only 9.8% reported violence to the police (ABS, 1996). With this in mind, sex workers who are victims of sexual violence are generally rendered less plausible, less worthy and less deserving of a fair trial.
For example, in the R v. Heros Hakopian case of 1992 involving an Australian sex worker, the offender was given a lighter than normal sentence purely because his crime was directed at a prostitute. According to Sullivan (2007), the judge argued Hakopian's behaviour was justified because the victim was a prostitute, and as her job doesn't adhere to normative expectations about womanhood, she must accept violence and rape as inevitable consequences of her work. By giving lighter sentences to men who assault sex workers, the criminal justice system makes the victim somehow responsible for the crime and reduces the chance of gaining redress for the assault. Preconceived ideas about sex workers promiscuity and openness to engage in sexual activities play a key role in the way the law deals with offenders.
Reduction of victim status
As previously stated, the criminal justice system has deemed sex workers as "unrapeable" because their perceived promiscuity does not adhere to normative expectations and discourses about appropriate feminine behaviour. This type of response is a symptom of the norms and values generated by and experienced within society, which subsequently make it difficult for sex workers to achieve redress for sexual assault. Pheterson (1996) supports this notion, arguing that sex workers' complaints of rape or assault will never be taken seriously by the police, and in the rare case they do lodge a complaint, they only risk being charged with prostitution offences. The idea that a prostitute doesn't have the right to say no is entrenched within many legal responses to assaults against sex workers. An example of this is the R v. Krausz case, where evidence of prostitution was grounds for nullifying the case because the complainant was "a woman of loose morals" (Sullivan, 2003: 6). Here, we see that social ideas about prostitutes enter the criminal justice system with ease and influence the way the courts respond to cases of violence against sex workers. Therefore, we come to a difficult paradox: prostitution is considered illegal, and so too is rape and assault; yet, when a prostitute complains of assault, she cannot be taken seriously, because she too, is a criminal and a deviant against societal norms.
Use of evidentiary rules
Criminal justice responses to sex work envisage sex workers as less worthy of victim status, and there are often undertones of prejudice in court proceedings. An example of this is the R v. Greatbanks case, 1959. Here, we see how easily social beliefs about sex work can enter the criminal justice system via evidentiary rules, making it possible to use even vague evidence of a woman's activity in prostitution against her in court (Sullivan, 2003: 2), and subsequently dismiss her contest of sexual assault. In this instance, the judge allowed evidence of behaviour that simply approximated to, and seemed like prostitution to be presented by the defence. However, in doing so, he merely affirmed social beliefs about appropriate behaviour for women, stating that: "there is a difference between the woman who has acts of sexual intercourse with men and a prostitute who regularly sells her body" (Sullivan, 2003: 5). Here, the defence has utilised common stereotypes and perceptions of sex work in an attempt to undermine the complainant's credibility by deeming her 'unrapeable' because her job entails regularly selling her body. This response is a manifestation of common stereotypes about prostitutes, and merely serves to perpetuate the stigmas attached to sex work, and in turn, promote normative, yet often inaccurate assumptions about the 'proper' behaviour for women. Temkin supports this idea, contending that this approach and mind-set employed by the courts serves only to discredit the complainant and constitutes "one of the most distasteful features of rape trials" (2002: 196). In this way, undertones of prejudice emerge in many trials, serving only to impair the complainant's chances of attaining redress.
Legal frameworks have a significant impact on sex worker safety in several ways. Most obvious is the classification of certain aspects of sex work as legal or illegal activity. However, this results in a vicious cycle, where sex workers are partly criminalised and half-heartedly protected. Legislation in the ACT is no exception to this. Its sex industry is partially-legalised and concurrently partially-decriminalised. According to the Prostitution Act, 1992, sex workers are required to register, there is pseudo licensing for brothels and strict criminal controls for certain brothels; and both private workers and brothels are legal while street soliciting is illegal. Similarly, prostitution laws in the Northern Territory require all sex workers to be registered under "organised crime" according to the Scarlet Alliance, a support group that promotes the rights of sex workers. Furthermore, sex workers in both the Northern Territory and Queensland can only work solo (Quadara, 2008: 15), further compromising their safety. In Western Australia, unlike every other citizen, sex workers do not have the right to remain silent and refusal to answer questions or produce documents could result in a jail sentence (Quadara, 2008: 17). Through these examples, the way in which ideas about gendered norms are in play is obvious: stigmas about sex workers permeate legal responses, and make sex workers separate and discrete to the rest of the community. Such responses are the result of society's general inability to accept things that contradict their long-held beliefs about how women should behave, and subsequently prove inadequate and inappropriate in dealing with the complex issues surrounding victimised workers.
Laws that make sex workers more vulnerable
Many of the laws about sex work tend to push and contain sex work to 'elsewheres' and according to Quadara (2008), these 'elsewheres' are usually geographically and spatially isolated locations, which leave workers even more vulnerable to violence as well as with limited means of escaping a violent situation. For example, Victorian laws for private sex workers mean that they may be working in areas that have low levels of pedestrian traffic and if they work from home, they are operating in an illegal sector and are thus unlikely to go to the police following an assault. Moreover, laws that criminalise aspects of sex work mean that workers will not disclose being a sex worker for fear of incriminating themselves and making themselves targets of discrimination. The ambiguous laws that surround sex work make women who have experienced violence triple victims: that is, they are victims of the perpetrators, victims of the police who won't protect them and victims of the idea they somehow deserved it. Therefore, the lack of understanding about safe ways to regulate sex work coupled with shared social stereotypes about the 'correct' behaviour for women result in legal responses that are ambiguous, confused and unjust.
High attrition rates
Sullivan (2003) underpins this idea, arguing that under-reporting coupled with the attitudes of some police and health workers remains a significant obstacle to sex workers receiving equal treatment before the law. Moreover, as there is a high attrition rate before trial as police and defenders make decisions about the credibility of witnesses and evidence, the likelihood of a conviction and lack of public interest in pursuing the case means the trial is less likely to end in a conviction. This is because stereotypical beliefs about women and their sexuality are mobilised in court rooms to cast needless doubt about the complainant's credibility as a victim. This occurs in a way that doesn't happen with other crimes. This is a major problem that disadvantages victims of assault as juries make decisions about the guilt of the perpetrator based on inherited beliefs about rape, sex and violence rather than the objective evidence presented (Quadara, 2008: 24). Here, the social stigma against sex workers is perpetuated by the law and is likely to exacerbate negative legal responses that diminish the victim's credibility because she is engaged in work that is seen as unworthy.
The media responds to sex work by conveying gender stereotypes as natural, when they are actually social constructions. A central vehicle for disseminating and constructing popular images about appropriate gendered behaviour, especially for women, the media is largely influenced by popular discourses which place sex work in a negative light. Newspaper articles such as "Illegal Brothels Booming across Sydney" and "Sex Out of Control", both published by Adam Walters in the Daily Telegraph in 2009, are fundamentally influenced by these social discourses about gendered norms. They generate a sense of moral panic amongst the general community, and perpetuate unshakeable and deep-rooted stigmas about sex work. Even the use of the words "booming" and "out of control" in the titles conjure up negative images of the sex industry, and the readers revel in this, as it supports preconceived ideas about brothels and sex workers. For example, the first article states that brothels are "a danger to public health" (Walters, 2009a) suggesting that brothels place the whole community in jeopardy, when in actual fact, other than reducing the perceived amenity of the neighbourhood, they pose little actual danger to the community. Social stigmas about sex workers are therefore "used to control, judge and segregate all women into worthy and unworthy victims" (Quadara, 2008: 28) and manifest in extreme media coverage of the sex industry.
Moreover, the media responds to sex work by promoting the idea that sex work is separate and discrete to the rest of the community, while simultaneously placing women who embody domesticity and possess gentle qualities at the forefront of its promotion of the 'ideal' woman.
Generally, media responses to sex work tend to frame discourse about legislation as feminist movements and there is rarely any coverage on the violence experienced by sex workers. For example, a newspaper article titled, "prostitute raped by client" will not garner sympathy in the same way as an article titled, "working mother violently assaulted". Here, the way the media is influenced by popular discourses about femininity and appropriate gendered behaviour is explicitly shown. Sex workers are not viewed as equals in society, and the general consensus is that if a sex worker is subject to violence, then she should accept it as part of her job. The close proximity of a Catholic girl's school to Mystiques brothel in Potts Point, Sydney is juxtaposed as 'right' and 'wrong' in the editorial, "Sydney brothel operator loses appeal" published in The Age. Through newspaper articles such as this, we see the way in which ideas about appropriate gendered behaviour permeate the media, and simultaneously, the way the media perpetuates the stigmas attached to sex work and subsequently renders a sense of moral panic and disgust throughout the community.
In conclusion, the criminal justice system responds to sex work in a way that is influenced by and supports normative ideas about appropriate gendered behaviour for women. The violence experienced by sex workers is ubiquitous, yet because it does not conform to popular ideas about how women should behave, the issue remains on the fringes of society's concerns. In trials such as Heros Hakopian and Greatbanks, the way the courts labels sex workers as 'unrapeable' and violence as an inevitable product of their work, explicitly demonstrates how gendered norms influence the criminal justice system. Similarly, the ambiguous and varied laws that surround sex work reveal a lack of understanding about women whose work fails to fit with society's images about the 'ideal' woman. Preconceived ideas about gendered norms are conveyed as natural in the popular media. And moreover, the media promotes the view that sex workers are a discrete and separate group of human beings.
It is also important to acknowledge that while these responses were once common place, there is now much active sentiment towards creating a fairer legal system that does not favour or segregate individuals based on their social standing or occupation. To do otherwise is to provide selective justice.
'becoming a heart surgeon is not proof of the nobility of spirit of a white middle-class man, and becoming a university professor does not demonstrate the personal integrity of a white middle-class woman. A person's human, civil, and labour rights, and their right to respect and social value as a human being, cannot be contingent upon whether or not they perform labour that is socially value.'p.93 Each person is entitled to rights and protection as players in the economic arena. They deserve respect and recognition as human beings part of a collective, all inclusive community that does not distinguish prostitution as a 'morally wrong' profession. Therefore criminal and social responses fail to allow sex workers "to claim legal recognition, dignity and respect" (93)