(this paper was originally written for Dr. Jack Jackson’s “Feminist and Queer Legal Theory (POL/GNDS 333)” course, in April of 2017. In the time since this paper was written, former Oklahoma state senator Ralph Shortey has reached a plea deal with federal prosecutors for a charge of child sex trafficking. Click here to read more about this development. Click here to read more broadly about the fraught nature of plea deals in the American criminal justice system,)
The law, and politics itself, always consists in a kind of violence. As apparently sweeping and indicting as this statement may seem, its truth is in fact somewhat banal. Insofar as the law functions negatively, to prohibit and regulate human action, it already places boundaries and restrictions on the immense plurality of humanity, coercing behavior into a range of permissible possibilities. Politics, understood as a practice of advocating for a particular arrangement of laws, does not — and cannot — escape this regulative constricting of possibilities, this political violence. This, of course, is not to say that violence could be avoided or eliminated by the abolition of laws, or the state apparatus in general. Anarchy, and the radical disintegration of a regulative and normative legal system, by no means offers us some silver bullet which could eliminate violence as a persistent element of human life. In the words of Thomas Hobbes, anarchy would mean that every human lives in “continual fear and danger of violent death; and the life of man [sic] solitary, poor, nasty, brutish, and short” (Hobbes 78). So it seems that human existence necessarily entails a certain kind of violence: the regulative and prescriptive narrowing-down accomplished by the state, or the radically undetermined, nihilistic chaos of a humanity not bound together by such a set of norms and prescriptions.
Within the field of politics generally, and within the fields of feminist and queer theory specifically, this problematic of violence can be said to play out as a tension between normative and anti-normative approaches. To put it broadly and inadequately, some feminist approaches to politics often seek to establish new regulatory and normative apparatuses for reducing violence (e.g. anti-pornography ordinances), while some queer approaches seek to deregulate and subvert normative apparatuses, also working towards the end of reducing violence, but through alternative strategies (e.g. affirming pornography insofar as it constitutes an expression or mode of human sexuality, or works to subvert norms which govern sexuality). To characterize feminist and queer projects in this way, as I have just done, already performs a particular kind of discursive violence: it glosses over and elides the tremendous diversity of thought that abounds in these intellectual arenas, and posits an antipathy between feminist and queer approaches which does more harm than good. The tension I am interested in does not emerge between feminist and queer approaches per se so much as it does between approaches that seek to shape and impose norms through regulation, and approaches that remain skeptical of regulatory projects and see them as bringing about more harm than good.
In this paper, I will work to map out this tension as it relates to the case of former Oklahoma Republican state senator Ralph Shortey. Shortey was charged with child prostitution, transporting a minor for prostitution, and engaging in prostitution within 1,000 feet of a church on March 16, 2017 after allegedly accepting an offer to exchange sex for money from a 17-year-old boy, who used the messaging app Kik to arrange the transaction (Murphy). The particulars of this case (and the particulars of most cases) present a number of hurdles to the straightforward application of a single feminist or queer legal theoretical framework, and raise a number of difficult questions. To name just a few, should prostitution be illegal? If the age of consent in Oklahoma is 16, should a 17-year-old be covered under child prostitution laws? If the 17-year-old boy initiated the transaction, did coercion, or the failure of either public or private support apparatuses lead him to do so? By no means will my analysis seek to provide final or totalizing answers to these questions. However, because the law necessarily (within the current paradigm) speaks and commands in precisely this final and totalizing voice, and because this paper offers legal prescriptions, my approach will necessarily address these questions in the always already violent voice of the law.
Through examining a range of feminist and queer thought, I will argue that prostitution ought to be a legal sexual practice for individuals living under a state that successfully facilitates autonomy, understood as the ability to make decisions for oneself which are relatively unconstrained by inadequate material, social, and emotional circumstances. Furthermore, the legality of sex-work ought to be contingent on the state’s continued willingness to accept responsibility for and be radically responsive to the vulnerability of its subjects, providing them with the resources necessary in order to make these autonomous decisions. I offer these prescriptions hesitantly, and openly invite others to subvert, deconstruct, and critique my claims. In other words, I invite others to engage in what I see as perhaps the single most important role a legal theorist (feminist, queer, or otherwise) can play. In the words of Adam Romero, “We can, I suspect, always think up situations and circumstances that in one way or another challenge, disjoint, undermine, reverse, or operate without reference to any purportedly perfect theory” (Romero 184). Insofar as the law itself claims this status of ‘perfect theory,’ and operates to make this theory manifest in very real, material, and cultural ways, our task becomes to locate and identify these challenging situations, or blind spots within the law, in order to bring them to light. Through critique, and through an expansion and adjustment of what counts as permissible practice, we can make corrections and adjustments in the legal trajectory of the polis; we can move towards a world where violence casts a smaller shadow, a world which is more forgiving, and more prepared to accept and provide support for human fallibility, plurality, and vulnerability.
Prostitution: Oppression or Profession?
Should prostitution be legal? It depends who you ask. Many theorists, writing in the vein of ‘dominance feminism,’ argue that prostitution necessarily subordinates women, that it represents yet another instantiation and mechanism of male dominance and patriarchy. Catharine MacKinnon, a paradigmatic example of this strain of thought, argues that because “what is degrading to women is compelling to the consumer” within a patriarchal culture and system, prostitution simply “sell[s] the unilaterality that pornography advertises” (MacKinnon 532). In other words, because sex is “something that men do to women,” prostitution constitutes the overlaying of market forces onto a pre-existing system of sexual subordination. Rather than an economic abuse, prostitution is instead, at its root, an “abuse[] of sex” (MacKinnon 533). By boldly positing “sexuality [as] the lynchpin of gender inequality,” MacKinnon renders her account of the feminist struggle as one inextricably bound up in the regulation of sexuality, in the prohibition of prostitution insofar as it functions to sustain patriarchal structures (ibid.).
Although MacKinnon’s approach offers a compelling argument against prostitution, it has also served as the site for numerous critiques of dominance feminism and its totalizing and regulative logics. Wendy Brown, for one, charges MacKinnon with crafting a “‘metaphysically nearly perfect’ and utterly static” account of sexism which offers little room for hope or change, and suggests that MacKinnon evacuates all positive possibilities for women’s sexuality by defining it as precisely the absence onto which men project their own sexual desire (Brown, 89-93). Moreover — and importantly in the context of the Shortey case — Brown points out that MacKinnon utterly fails to think homosexuality within the circular, entrapping confines of her theory: “in MacKinnon’s theory…heterosexuality is the past, present, and eternal future of gender” (ibid.). This begs the question: in the Shortey case, in which no women are involved, does MacKinnon’s criticism of prostitution hold?
Insofar as MacKinnon seeks to uphold a prohibition on prostitution through law, she posits this prohibition as a universal. But does all sex-work necessarily demean and subordinate women? Michael Warner argues that in fact, a large aspect of our cultural aversion to prostitution is predicated on a moralistic, Christian politics of sexual shame that purveys itself by masquerading as patriotic or humanistic concern. Citing Gayle Rubin’s 1984 essay “Thinking Sex,” Warner writes,
Hierarchies of sex…create victimless crimes, imaginary threats, and moralities of cruelty. Rubin notes: ‘The criminalization of innocuous behaviors such as homosexuality, prostitution, obscenity, or recreational drug use is rationalized by portraying them as menaces to health and safety, women and children, national security, the family, or civilization itself.’ These rationalizations obscure the intent to shut down sexual variance. (Warner 25)
These attempts to police deviant sexual practices through appeals to widely-held ideologies serve to uphold a conservative, heteropatriarchal norm, in which ‘good’ sex is heterosexual, married, monogamous, procreative, noncommercial, and/or missionary, while ‘bad’ sex is homosexual, casual, polygamous, for pleasure, commercial, and/or sadomasochistic (Warner, 25-26). Brown points out the ways in which MacKinnon’s theoretical project tends to reify rather than subvert these sexual norms, writing, “[MacKinnon] insist[s] on the need to insulate us from the worst abuses of [masculinist] domination not through emancipatory strategies but by curtailing and regulating sexuality, speech, and so forth…. Not freedom but censorship…more police, more regulation, better dead-bolt locks on the doors” (Brown, 94). MacKinnon’s insistence on regulation, in other words, advocates for a kind of violence insofar as it seeks to control and limit human sexuality in pursuit of its particular feminist ends.
Here again we have located the tension between the two forms of violence identified earlier: the regulative and normative, and the deregulative and anti-normative. Can we quantify and calculate which approach does more harm? Will this kind of moral calculus produce a satisfactory result? Are there rights to sexual expression and freedom to be asserted here? Are there rights to equality of treatment and freedom from domination to be asserted as well? Where do these rights end, and where do they collide with each other? When do these rights impinge upon the rights of others and when are these rights impinged upon themselves? It may well be the case that MacKinnon, Brown, and Warner are all correct, in a manner of speaking: attempts to regulate prostitution do serve to police deviant sexuality, even as prostitution frequently produces and sustains the subordination of women. However, to return for a moment to the specific context of the Shortey case, wherein a 17-year-old boy — above the age of consent under Oklahoma law — initiated the transaction, it seems a stretch to assert that this particular instance of prostitution necessarily perpetuated the subordination of women, or resulted in a harm worth regulating. Still, some important questions bear asking: is 17 old enough to make the decision to perform sex-work? Is age determinative of one’s ability to consent to sex?
Consent: Decideable? Autonomous?
In seeking answers to these questions, Janet Halley offers us a provocative and unsettling analysis of sexual consent, developed by (re)reading Oncale v. Sundowner Offshore Services, Inc. through dominance feminist and queer lenses. The case, which concerned Joseph Oncale’s subjection to sexual harassment and assault from other male coworkers on an oil rig, came before the Supreme Court, which ruled in favor of Oncale. Halley problematizes this decision, suggesting that the court’s ruling makes a mistake by relying on a dominance feminist approach which “simultaneously evacuat[es] sexual orientation of any distinct components and flood[s] it with gender understood as male superordination and female subordination” (Halley 92). This is to say, the ontological “lynchpin” status that MacKinnon ascribes to sexuality as the site of gender inequality can only produce readings of what transpired on the oil rig along a single axis: Oncale performs the feminine role of subordination, while his coworkers perform the masculine role of superordination, resulting in Oncale’s harassment. Setting this reading aside because of its profoundly flawed concept of gender as both binary and unflinchingly ontological, Halley instead asserts that “a queer approach would make the case outright undecidable” because of the vast number of potential performances and configurations of desire, bodies, genders, and homo/heterosexual identifications (Halley 94). If all identity categories are taken as fleeting and dynamic products of interpretation, and all performances of these categories become simply “a means of transmitting desire,” then for Halley, this vast and expressive matrix of desire means that “the wantedness of the sex that happens will be undecidable” (ibid. 96-97).
If we are to take Halley’s claims seriously, then any notion of consent becomes an incredibly slippery and difficult thing to handle. For Halley, this ‘undecidability’ does not constitute a loss, but is instead “beautiful….brave….complicated and fleeting and elaborate and human.” Halley goes on to assert, “I think most of us experience sex…as an alarming mix of desire and fear, delight and disgust, power and surrender, surrender and power, attachment and alienation, ecstasy…and enmired embodiedness” (ibid. 98). Though this description may ring true, it does very little (as is Halley’s intention) to help us establish a ground from which we might pronounce a judgment about the acceptability of the dynamic between Shortey and the 17-year-old boy. It seems that Halley’s response to the Shortey case might be to simply affirm what transpired in the name of “the weirdness of sex,” for the sake of sex as a whole, “‘dark side’ and all” (ibid. 82).
If Halley has been useful here, it is to demonstrate that the tremendous number of conditions which govern the wantedness of sex render a state-produced, arbitrary and final ‘age of consent’ a mere juridical fiction, dreamt up in order to give stability and accountability to a process which otherwise unfolds complexly, indeterminately, and spontaneously. However, Halley’s articulation hardly constitutes the whole picture. Martha Fineman’s account of the vulnerable subject, while not explicitly a heuristic for thinking consent, nevertheless offers us additional possibilities for understanding the kind of subject that might be capable of (somewhat safely) undergoing Halley’s “problematic of wantedness,” and offers us a framework which lends itself more readily to the mandates of the legal system (ibid. 98). For Fineman, vulnerability describes an “undeniably universal” human condition, arising from our embodiment within the world and consequent susceptibility and exposure to disease, violence, and catastrophe (Fineman 10). Though we can mitigate our vulnerability, it can never be completely eliminated, and this reality can remind us of our necessary interdependence upon each other on a societal level. Fineman’s notion of the vulnerable subject emerges as an alternative to the dominant liberal conception of the subject as an autonomous, self-sufficient, personally responsible, and self-interested individual (ibid. 10). Inevitably, this liberal subject “can only be presented as an adult….stand[ing] outside of the passage of time, but also outside of human experience” insofar as our experience constantly reminds us of the networks of others that we rely on and that rely on us as our lives unfold (ibid. 11).
Arguably, the liberal conception of the subject is precisely the theoretical construct that permits us to understand sexual consent in its current broad, culturally codified form: as a static and straightforward contractual agreement between rational, autonomous agents. To try to think consent — as it pertains specifically to the 17-year-old in the Shortey case — through Fineman’s notion of the vulnerable subject would to be recognize “that individuals are anchored at each end of their lives by dependency and the absence of capacity,” and that autonomy, understood as an ability to self-govern or to make relatively unconstrained choices for ourselves, arises as a series of temporary stages between these ends and is always contingent upon our material, social, and emotional well-being in any given moment (ibid. 12). In this sense, consent becomes something given during these brief moments of autonomy, in which we are equipped by this nexus of circumstantial well-being to make these relatively unconstrained decisions for ourselves. In characterizing and interpreting autonomy in this way, I do not mean to suggest that this kind of consent evades Halley’s problematic of wantedness: the indeterminate matrix of desire, gender, sex, and sexuality performance at play in this problematic no doubt also impacts us even in those moments when we are best equipped to make our own choices. Rather, this additional way of conceptualizing consent through vulnerable autonomy may offer us the ability to formulate a set of legal criteria with which to evaluate specific instances, such as the Shortey case, in concrete and empirical ways that avoid the pitfalls of the arbitrary ‘age of consent’ framework.
A lot remains unknown about the Shortey case. Because the case is currently making its way through court, and because of privacy laws, information about the 17-year-old that might help us answer questions about his material, social, and emotional circumstances, and his ability to give consent, has not been made public. Nevertheless, we can consider the stories of other sex-workers in order to evaluate the effectiveness of a vulnerable autonomy approach. In 2015, a New York Times Magazine article by Emily Bazelon chronicled the stories of Amy Muñoz and other current and former sex-workers, and demonstrated the range of circumstances and reasons which might lead someone to sex-work. Muñoz stated that she began sex-work when she was 18. Although she had another job as a restaurant hostess, she liked feeling desired, and “really, really did love the work” (Bazelon). Sex-work gave Muñoz an opportunity to earn additional spending money, and, from the information presented in the article, it seems that Muñoz had the resources necessary to be autonomous: to make the unconstrained choice to do sex-work because it was something she enjoyed and wanted to do, rather than something she needed to do in order to meet her basic needs as a vulnerable subject.
However, Muñoz ran into a problem a few years later: her boyfriend at the time began to use the illegality of her work to extort and manipulate her. Bazelon writes,
At first, [Muñoz] told me, he asked her to pay to get his car back after it was towed. Then he started demanding more money and dictating when she worked and which clients she saw. Muñoz didn’t exactly seem like a trafficking victim; she was driving her own car, going to school and paying her expenses. But looking back, she says that’s the way she sees herself. (Bazelon)
Here, we can see, in explicit ways, that Muñoz was no longer free to make unconstrained choices. Her boyfriend blackmailed and controlled her through domestic violence and by threatening to out her as a sex-worker (Bazelon). Ultimately, with help from a friend, she was able to extricate herself from the relationship, yet it is important to note that this problem seems to have been brought about, not by a deficiency in material circumstances, but by the way that the illegality of prostitution enabled Muñoz’s boyfriend to extort and manipulate her. Had sex-work been legal, the leverage her boyfriend exercised would have been significantly reduced, and Muñoz could have appealed to the state, rather than to a friend, to protect her from domestic violence and abuse.
Muñoz also recognized that her experiences with sex-work do not represent the conditions faced by a majority of sex-workers. Many individuals end up working as prostitutes because they are constrained by fiscal or social circumstances; they need to make ends meet, put food on the table, or pay rent, or they are forced into sex-work by abusive and coercive relationships with family members, intimate partners, or human traffickers. It is also certainly the case that women make up the vast majority of sex-workers. In the United States alone, Bazelon notes, “55,000 arrests [occur] annually, more than two-thirds of which involve women. Women of color are at a higher risk of arrest. (In New York City, they make up 85 percent of people who get arrested.) So are trans women, who are more likely to do sex work because of employment discrimination” (Bazelon). The potential for and reality of serious harm and abuse under the current configuration of prostitution laws in the United States is enormous, and certainly calls for legal reform. It seems, however, that perhaps the most effective approach would not be one that bans prostitution, regulating sexuality and forcing the harms caused by the current system further into the underground and away from the public eye. Instead, we need a system in which the state provides vulnerable subjects with the array of resources that they need, enabling sex-workers to choose to sell their services because they want to, and not because they have to. Furthermore, we need a system that allows the state to intervene on behalf of sex-workers, combatting the exploitation and harm that is so often inflicted under the current paradigm.
Vulnerability and the Responsive State: Facilitating Autonomy by Cultivating Resilience
The advantages of an approach that affirms, rather than prohibits, sex-work and sex-workers are myriad. To name just a few, it would make prostitution and the choice to solicit sex from a prostitute more culturally intelligible as legitimate professional and sexual choices. Insofar as the law and culture operate reciprocally to both produce and enforce norms, by codifying and legalizing prostitution, the state can take the first step in the process of reducing shame and stigma for a sexual practice currently considered deviant and ‘bad.’ Furthermore, if prostitution becomes legal, it might increasingly begin to appear as a valid professional choice men can make as well. If more men were to work as prostitutes, the gendered meanings and impacts that are attributed to and flow from sex-work might begin to shift or erode, alleviating some of the concerns raised by MacKinnon regarding the unilaterality of sex as something men do to women.
This said, it is profoundly important to emphasize the contingency of these positive changes — and the legalization of prostitution in general — on the ability of individuals to choose to be sex-workers, rather than to have sex-work forced upon an individual by material need, or social and physical coercion. In order to imagine a polis which facilitates the autonomy necessary to make this kind of choice, Fineman — parsing the ideas of Peadar Kirby — provides us with a vision of the state to accompany her notion of the vulnerable subject. “The vulnerable society,” for Fineman, would be one in which state-facilitated institutions can be counted on to provide subjects with “‘assets’ — advantages, coping mechanisms, or resources that cushion us when we are facing misfortune, disaster, and violence. Cumulatively these assets provide individuals with ‘resilience’ in the face of vulnerability” (Fineman 12-13). Fineman identifies a number of forms these assets ought to take: physical assets (i.e. distribution of wealth and property), human assets (i.e. health, education, and employment), and social assets (i.e. networks of relationships, including family, friends, groups, and other forms of community) (Fineman 14-15). It should be the state’s responsibility, as the institution charged with governing and providing for its subjects, to ensure that all individuals within society have access to these assets in equal measure, and that no institution produces privileges for some and disadvantages for others (Fineman 20).
This vision of a responsive state, and an equality predicated on our universal vulnerability, offers a promising goal to strive towards in our politics, as well as a compromise between the regulative and deregulative violences of the law. It offers us a way to understand what conditions must be met in order for a kind of vulnerable autonomy to be attained and for prostitution to become legal, and it remains sensitive to the injustices of the laissez-faire, deregulative impulses of neoliberal cultural logics while nevertheless avoiding the “potentially fascistic” over-regulation of sexuality that anti-prostitution positions often entail (Brown 95). To be sure, this vision still effects a kind of violence: it treads on the so-called ‘right’ of the wealthy to be free from heavy taxation in order to provide support to populations without the same resources, and, in the time before cultural norms catch up to the law, the legalization of prostitution will likely continue to produce the subordination of women along the axes described by MacKinnon. But all the same, it is my belief — at this particular moment — that this arrangement of laws will cast a smaller shadow of violence, and that it will ameliorate a portion of the problems associated with sex-work and the stigma that surrounds it caused by the current cultural and legal paradigm.
Conclusion
To return again to the specifics of the Shortey case, now with our framework fully filled in, it would seem that we can assert that — contingent on the boy’s capacity to have acted autonomously, as determined by his material, social, and emotional well-being — Ralph Shortey should not face any criminal charges for either what transpired online over the year leading up to his encounter with the 17-year-old boy in the Super 8 motel room, or anything that transpired in the motel room itself. Because Shortey’s actions seem not to have harmed anyone in a direct or unmediated way (although his wife, children, constituents, and more were likely harmed in a more mediated way), it would make sense not to charge Shortey. In fact, under her vulnerability approach, Fineman might even suggest that the state provide Shortey with a therapist (rather than a jail cell) in order to work through what one can only imagine to be massive cognitive dissonance, shame, and self-hatred: as a Republican state senator, Shortey himself consistently backed anti-LGBTQ legislation. I have not mentioned this factoid until now because it is by and large irrelevant to the law and to our analysis. Hypocrisy is not — and should not be — criminal, even if it may often seem despicable.
All the same, proclaiming that Shortey should not be charged is not the same as saying that prostitution should — overnight — become the law of the land. As we have seen, many elements of the way the state currently supports its subjects need to be radically adjusted before sex-work can become widely legal in a way that does not produce severe harms. What can, and should happen immediately, is a change to the law which allows sex-workers (but not necessarily their clients) total amnesty as regards their profession: this will allow the state to begin functioning to protect sex-workers from exploitation and harms from clients, pimps, human traffickers and the like, rather than to continue punishing a group of individuals who often already face difficult, coercive, and dire circumstances. By recognizing vulnerability in everyone, working to ameliorate conditions, fostering resilience, and offering constructive rather than carceral solutions for those who break the law, we can works towards a world with more unconstrained choices, and a world which is more forgiving. If we can do all of these things, while nonetheless recognizing the incredible range of expressions for human sex, gender, sexuality, and desire, we can even hope to find a way out between the regulative and deregulative violences of the law, and move forward with an approach that remains far from perfect, but offers more hope and less violence than the one we have now.
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Collected Writings of Nolan Bishop 