Male Sex Work and Society (36 page)
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Tags: #Psychology/Human Sexuality, #Social Science/Gay Studies, #SOC012000, #PSY016000
| Regulation of the Male Sex Industry | |
THOMAS CROFTS |
The issue of how to regulate the sex industry most effectively has been much debated throughout history and across jurisdictions. The one constant in this discourse has been a focus on regulating female sex work, while the issue of male sex work has been largely neglected. When men are viewed in connection with sex work, it tends to relate to their status as clients of female sex workers (FSWs). Although male sex work is receiving increased attention in the social sciences, it is clear that broader policy shifts in recent years, which increasingly view FSWs as victims and male clients as exploiters of women (Whowell & Gaffney, 2009), largely bypass male sex workers (MSWs). This chapter first explores why male sex work has received relatively little attention in the legal, academic, and policy literature and been largely overlooked by sex work regulation. Second, it demonstrates how the connection between the conceptualization of male homosexuality and male sex work has had an impact on the regulation of male sex work. Finally, it discusses some of the forms and spaces of male sex work and examines how they are shaped by regulation. While the themes identified in this chapter will resonate in other jurisdictions, the focus here is primarily on the legal situation in Australia and the United Kingdom.
Why Has Male Sex Work Received So Little Attention?
Much of the discourse around male sex work (and female sex work) is, as Whowell and Gaffney (2009) comment, “historically, politically, legally specific and shaped by other social contexts such as knowledge producing systems—including academic research” (p. 103). However, comparatively little academic, social, or policy attention has traditionally been paid to male sex work. This scarcity of academic research can be attributed to a range of factors, including the combination of two marginalities (homosexuality and sex work), a lack of funding, the difficulty of studying clandestine communities, the difficulty of finding a compelling theoretical framework on which to base research into male sex work, and the perception among some scholars that the topic is sensationalist and that research would only serve to conceal social activism or some other agenda (see Browne & Minichiello, 1996; Davies & Feldman, 1997; Morrison & Whitehead, 2007). When research has been conducted on the practice of male sex work, it has tended to focus on street-based work that examines “sexual health, life histories and methods of entry into the sex industry” (Whowell & Gaffney, 2009, p. 99), largely disregarding other forms of sex work and how the law regulates and influences these forms and spaces.
Indeed, while male sex work for male clients (i.e., homosexual sex work) has received little attention, it should be noted that male sex work for female clients (i.e., heterosexual sex work) has been even more marginalized in academic and policy terms (Browne & Minichiello, 1996; Lee-Gonyea, Castle, & Gonyea, 2009). This is largely because it does not accord with traditional views about female sexuality and women’s position in society (Wiltfang, 1985, pp. 24-30), and because of this it generally has been perceived as not very common or problematic. Male sex work for female clients also takes place primarily through private arrangements rather than in public spaces, and therefore is much less visible and considered less of a nuisance or social concern, which allows it to be largely bypassed by laws framing sex work.
Male-to-male sex work has not been regarded as a distinct regulatory issue because historically it has been fundamentally intertwined with the regulation and legal framing of male homosexuality (Weeks, 1981). As Scott (2003a) has noted, “male prostitution has been problematized in a unique manner … [and is ] understood as a moral problem, typically associated with gender deviation” (p. 179). “Problematizing deviant sexual behaviors in this way was only made possible by the increased understanding of gender and expected gender behavior during the 19
th
century” (p. 180). As a result, the intertwining of male sex work with male homosexuality meant that the regulatory discourse surrounding male sex work was tied to the criminalization of homosexual conduct as a whole.
1
As Scott has argued, “such behaviour was often not recognised as prostitution. No distinction emerged during this period to distinguish same-sex desire from commercial sexual activity involving males, both being conflated and assumed indistinguishable” (p. 181). The regulation of male sex work throughout history has been fundamentally linked to changes in how male homosexuality has been perceived and regulated.
th
century” (p. 180). As a result, the intertwining of male sex work with male homosexuality meant that the regulatory discourse surrounding male sex work was tied to the criminalization of homosexual conduct as a whole.
1
As Scott has argued, “such behaviour was often not recognised as prostitution. No distinction emerged during this period to distinguish same-sex desire from commercial sexual activity involving males, both being conflated and assumed indistinguishable” (p. 181). The regulation of male sex work throughout history has been fundamentally linked to changes in how male homosexuality has been perceived and regulated.
Historically, laws that frame sex work have not been the primary mechanism relied upon to regulate male sex work.
2
While the sexual acts involved in female sex work were not subject to criminal sanctions,
3
sexual acts between males amounted to criminal offenses whether paid for or not. Thus, instead of using sex work laws to regulate male sex work activities, criminal laws prohibiting behavior such as sodomy and indecency in public or private could be, and frequently were, used. The criminalization and stigmatization of homosexual conduct also meant that male sex work to a large degree remained relatively untouched by sex work regulation in comparison to female sex work, due to the self-regulation exercised by male workers and their clients.
2
While the sexual acts involved in female sex work were not subject to criminal sanctions,
3
sexual acts between males amounted to criminal offenses whether paid for or not. Thus, instead of using sex work laws to regulate male sex work activities, criminal laws prohibiting behavior such as sodomy and indecency in public or private could be, and frequently were, used. The criminalization and stigmatization of homosexual conduct also meant that male sex work to a large degree remained relatively untouched by sex work regulation in comparison to female sex work, due to the self-regulation exercised by male workers and their clients.
The criminalization of male homosexual activity forced it to become clandestine and less visible in public (see Hubbard, 2001; Weeks, 1981). As certain urban spaces became known among homosexual men as places to meet, whether as public sex environments or commercial areas with bars and other services, MSWs could blend into this scene, which was less visible to mainstream society (Whowell, 2010). Thus the nuisance aspects of sex work were less pressing and could be addressed in other ways. Moreover, feminist concerns that sex work represents the exploitation of women also largely bypassed male sex work because “the great majority of it takes place between men within a world and a context that resist feminist analysis of patriarchal domination, the theoretical structure most often used to explain the imposition of sexuality, or even sexual slavery, upon women and children” (Dorais, 2005, p. vii). The combined effect of all these factors is that male sex work has always, and continues to be, relatively unheeded by sex work policies and laws.
The Criminalization of Male Homosexual Sex
A stark contrast between female and male sex work lies in the social attitude toward participants and legal responses to the sexual act at the core of the work. While FSWs have been stigmatized, their male clients traditionally have not. Heterosexual sex is not generally stigmatized by law or society, and the selling of sexual services by a woman to a man has traditionally not been subject to criminalization in Australia and the UK (although it has in the U.S.). Criminal law has instead focused on the nuisance or exploitive aspects of heterosexual sex work and targeted related behavior, such as soliciting clients, running a brothel, involving minors in sex work, encouraging a person to engage in sex work, and living off the earnings of another’s sex work, etc. In contrast, both the male sex worker and his male clients have been stigmatized as deviant (Scott, 2003a), and the regulation of their activities is conflated with the regulation of homosexuality, whether a worker identifies as homosexual or heterosexual. There has been, therefore, less need to specifically criminalize male sex work because, if provided man to man, the behavior forming the basis of the work was itself subject to criminalization.
Sexual activity between males in private or in public has long been subject to criminal law. Blackstone, who between 1765 and 1769 wrote the Commentaries on the Laws of England, which were influential in the future development of common law, found “the infamous crime against nature, committed either with man or beast” to be so malignant that he did not wish “to dwell any longer upon a subject, the very mention of which is a disgrace to human nature” and “a crime not fit to be named” (Blackstone, 1769, pp. 215-216). Turning to the question of punishment for this crime, Blackstone notes that “the voice of nature and of reason, and the express law of God determine [it] to be capital,” making this “an universal, not merely a provincial, precept” (p. 216). As Kirby (2011) notes, “the English law criminalising sodomy, and other variations of ‘impure’ sexual conduct, was well-placed to undergo its export to the colonies of England as the British Empire burst forth on the world between the seventeenth and twentieth centuries” (p. 25). These laws prohibiting sodomy and indecent acts found their way to Australia following colonization in 1788 and were included in the criminal statutes and codes enacted by the state and territory parliaments after federation. Such prohibitions on homosexual conduct, including the criminalization of sodomy, acts of indecency between males in public or private, and soliciting a person to engage in homosexual conduct, continued to exist in England and in Australian jurisdictions in various forms until they were gradually repealed between 1967 and 1997.
The growing scientific research into sexuality, particularly homosexuality, around the mid-20
th
century changed the understanding of homosexuality and thus also male sex work, which up to that point had not been fully regarded as distinct issues. Scientific research began to challenge the understanding that same-sex attraction, and indeed sexual acts associated only with homosexuals, was confined to a small group of willful deviants (Kirby, 2011). A number of high-profile cases involving the prosecution of well-known figures for homosexual offenses also sparked debate in the UK about the appropriateness of criminalizing homosexual conduct. This led to a Royal Commission of Inquiry in 1954 into homosexuality and prostitution, chaired by Sir John Wolfenden. The resulting “Wolfenden Report,” published in 1957, set the tone for reform of the law regarding homosexuality and female sex work in England and Australia.
4
The commission was influenced by the changing understanding of homosexuality, in particular Kinsey’s study, which found that sexuality existed on a continuum. Accordingly, the report stated that “homosexuals cannot reasonably be regarded as quite separate from the rest of mankind” (Home Office, 1957, para. 22). The starting point of the commission’s finding was, therefore, that “it is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined” (para. 14). Those purposes were “to preserve public order and decency, to protect the citizen from what is offensive or injurious and to provide sufficient safeguards against exploitation and corruption of others” (para. 13). The commission therefore recommended that private adult consensual acts should not be subject to criminalization. In terms of sex work, this meant not aiming to abolish female sex work but rather addressing the “offensive and injurious” visible aspects of street-based work (para. 285).
th
century changed the understanding of homosexuality and thus also male sex work, which up to that point had not been fully regarded as distinct issues. Scientific research began to challenge the understanding that same-sex attraction, and indeed sexual acts associated only with homosexuals, was confined to a small group of willful deviants (Kirby, 2011). A number of high-profile cases involving the prosecution of well-known figures for homosexual offenses also sparked debate in the UK about the appropriateness of criminalizing homosexual conduct. This led to a Royal Commission of Inquiry in 1954 into homosexuality and prostitution, chaired by Sir John Wolfenden. The resulting “Wolfenden Report,” published in 1957, set the tone for reform of the law regarding homosexuality and female sex work in England and Australia.
4
The commission was influenced by the changing understanding of homosexuality, in particular Kinsey’s study, which found that sexuality existed on a continuum. Accordingly, the report stated that “homosexuals cannot reasonably be regarded as quite separate from the rest of mankind” (Home Office, 1957, para. 22). The starting point of the commission’s finding was, therefore, that “it is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined” (para. 14). Those purposes were “to preserve public order and decency, to protect the citizen from what is offensive or injurious and to provide sufficient safeguards against exploitation and corruption of others” (para. 13). The commission therefore recommended that private adult consensual acts should not be subject to criminalization. In terms of sex work, this meant not aiming to abolish female sex work but rather addressing the “offensive and injurious” visible aspects of street-based work (para. 285).
The initial range of decriminalizing acts in England and Australia did not, however, end the discriminatory treatment of male homosexuals. For instance, the UK’s 1967 Sexual Offences Act only decriminalized homosexual acts in private, provided that both parties were age 21 or over. The act further limited the meaning of the term “private” by providing that an act was not private if it involved more than two people or took place in a lavatory to which the public had access. It was not until the Sexual Offences (Amendment) Act 2000 that the age of consent was equalized at 16 in England and Wales. Australia undertook similar steps between 1972 and 1997 to decriminalize homosexual sexual acts (see Carbery, 2010; Kirby, 2011). The first state to decriminalize some male homosexual acts was South Australia in 1972, with further reforms in 1975 and 1976, followed by the Australian Capital Territory in 1976. Most other jurisdictions enacted reforms during the 1980s, with the exception of Tasmania, where reform occurred in 1997, only after the Commonwealth government passed the Human Rights (Sexual Conduct) Act 1994, which provided in Section 4 that “sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.” The age of consent varies throughout Australian jurisdictions, and, as in England, some jurisdictions had different ages of consent for male homosexual sexual behavior until the early 21
st
century.
5
st
century.
5
The general criminalization of all homosexual practices meant that the specific regulation of male sex work only became a real issue when homosexuality was decriminalized. However, even as homosexual practices in private were decriminalized, criminal law was and is still used to control homosexual activities in public spaces in a way that heterosexual sexual activities have not been (see Ashford, 2012; Dalton, 2007, 2012; Johnson, 2012). Johnson (2012) suggests that police are more likely to prosecute homosexual men than heterosexuals. Therefore, mechanisms other than sex work laws continue to be used to regulate and control male sex work.
The panic around the HIV/AIDS epidemic in the 1980s led to male and female sex workers being seen as a public health problem and the transmitters of HIV, which reflected earlier narratives of FSWs as the vectors of disease (see Jeffreys, 2009; Scott, 2003a, 2003b; Sullivan, 1997). As a result, some jurisdictions enacted laws, such as the Prostitution Act 1992 (ACT) and the Sex Work Act 1994 (Vic), which prohibit a person from operating as a sex worker when they know or could reasonably be expected to know that they are infected with a sexually transmitted disease, including HIV. These provisions do not actually require transmission to occur, and in 2008 the Australian Capital Territory provision was used to prosecute a man who was HIV positive for working as a sex worker (see Jenkins, 2008; Jeffreys, 2009), even though there was no evidence that he had practiced unsafe sex or transmitted HIV. Added to this are general provisions of criminal law that make it an offense to intentionally or recklessly transmit HIV (or other serious disease), as well as coercive powers under health laws that can be and are used to control sex workers. For instance, the Public Health Act 1902 (NSW), as amended by the Public Health (Proclaimed Diseases) Amendment Act 1989 (now Public Health Act 2010, NSW), allows an authorized medical practitioner to issue a public health order to people infected with a proclaimed disease, including HIV, where there are reasonable grounds to believe the person is behaving in a way that he or she may pose a risk to public health. Such orders can require a person to refrain from specified conduct, or to undergo specified treatment or counseling. The same act also allows for such a person to be detained, which makes sex workers, particularly those operating in public spaces, “extremely vulnerable under the Act, as their behaviour could incite the prejudices of medical officers who were accorded significant discretionary powers” (Scott, 2003b, p. 284).
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