Consent is non-binary
A response to "a Socialist, Feminist, and Transgender Analysis of 'Sex Work'”
The most recent Maybe, Baby newsletter (which I’ve been enjoying) recommended A Socialist, Feminist, and Transgender Analysis of “Sex Work.” I’m guessing this post is why Twitter Discourse included “would sex work exist under socialism?” the week before last.
Author Esperanza Fonseca argues that all wage labor under scarcity and capitalism is morally and practically literal slavery and that, therefore, all sex work under scarcity and capitalism is morally and practically literal rape.
Fonseca’s essay advocates for criminalizing and stigmatizing demand for sex work, aka the clients or johns. While it’s true that sex work isn’t entirely consensual, this cure is objectively worse than the disease. Stigmatization and criminalization do nothing to make sex work more consensual and have never in any place or time they’ve been tried ended the sale of sex for money. What criminalizing and stigmatizing demand for sex work does accomplish is it exacerbates human trafficking and increases violence against sex workers.
At the end of the post we’ll talk more about “end demand.” But I’m going to spend the bulk of the post addressing her obfuscating oversimplification of consent vs coercion, which she presents as a binary when in reality they’re ends of a spectrum. I see this particular misrepresentation in a lot of writing and thinking about politics and sex, coming from the left and the right.
When it comes to sex and work, the right and left both think in terms of voluntary vs non-voluntary. In my opinion, neither side has a sufficiently nuanced understanding of consent.
Work isn’t slavery. Consent isn’t binary
You might reasonably assume “all wage labor under scarcity and capitalism is morally and practically literal slavery” is straw-man of Fonseca’s argument. But she does in fact argue exactly this, writing that broader social structures “make ‘choice’ impossible.”
You often see a similar sentiment on the right, but from the opposite perspective. Conservatives ignore subtler pressures and describe any choice that doesn’t involve a literal gun to anyone’s head as totally voluntary.
Both Fonseca and many right-wing thinkers really want there to be a bright line between consent and coercion. Unfortunately for both, this bright line doesn’t exist. And talking about consent and coercion as if they’re a binary obfuscates more than it clarifies.
Before we talk about the consent spectrum, let’s define our terms.
A theory of consent
For a choice to to be completely consensual, it must meet the following conditions:
The chooser has access to every possible other option
The chooser has complete and accurate knowledge of all information relevant to the decision
The chooser doesn’t have to worry about any of his options causing them or anyone else harm
In other words, a completely voluntary choice has no hint of “force or fraud.” A choice made in any other circumstance is in some way, to some extent, constrained or coerced.
Let’s say you’re in the last year of your PhD program. You and your academic advisor know that a mediocre recommendation from him will make it very difficult for you to get a job after graduation. One day, he makes it clear he wants to have sex with you.
You have a choice. Have sex with him even though you’re not attracted to him or turn him down and risk a mediocre recommendation. Sure, you can choose to have sex with him in the sense that no one is literally forcing you to do it. But you’re not choosing to have sex with him the same way you would be if your only consideration were the pleasure you’d get from the sex. But you’re also not being forced in the same way you would be if he were literally forcing himself on you. (BTW, this isn’t hypothetical.)
It’s not rape, exactly. But it’s not really fully consensual either.
I’d argue this is where most of our choices in life lie. They’re not straightforwardly coercive or cooperative, but somewhere in-between. Take the choice to exercise or sit on the couch. When you extrapolate to the consequences of each, it’s a choice between short-term pain and an early death.
This leads me to the inevitable conclusion that consent vs coercion isn’t a binary. It’s a spectrum. All exchanges exist on this spectrum, from more consenting to more coerced.
On one end of the spectrum you have slavery and rape. On the opposite end you have enthusiastic consent. But most choices fall somewhere in the middle. These choices aren’t forced, exactly. But they're not exactly free either.
One way for a choice to be completely consensual is if it doesn’t have any hint of “force or fraud.” But I’d argue that force and fraud are simply flavors or subtypes of coercion.
When we say we are “forced” to make a choice, we mean that there’s no acceptable alternative. We say we’ve been forced to do something if the alternative is death or jail. When we say we’re “pressured” to make a choice, what we mean is there’s no appealing alternative. We say we’ve been pressured to do something if the alternative is unpleasant or inconvenient. The difference then between force and pressure is a difference of scope, not kind. They’re both coercion, but are different levels of coercion.
Another place you can see consent on a spectrum are the sex parties I used to go to here in SF. OH! parties used to begin with a “consent speech” where speakers reiterated that the standard for consent is “enthusiastic consent.” Ask before touching, give a clear yes or no. Interpret everything other than a “fuck yes” as a no. Take no for an answer and don’t pester or badger anyone for sex.
The fact that we qualified consent at all speaks to the fact that consent is a spectrum, and we wanted to make sure all the sex at these parties was on the far right side of it.
Therefore, I don’t think it clarifies anything for Fonseca to write “Forced or coerced sex is rape.” That’s like saying “forced or pressured sex is rape,” since pressure is a kind of coercion.
Given the definition above, I think we can agree that forced sex is definitely rape.
But I’m not ready to say that creating a situation where there’s no appealing alternative to sex is rape. As the OH! rules point out, sex with someone who’s pressuring or badgering you for it isn’t completely voluntary. Then the likely alternative to acquiescing to sex is more badgering, and that’s unappealing. And that’s why it’s definitely loathesome to pressure or badger someone for sex. But to say a man who successfully pressures or badgers his wife into sex is raping her is going apiece, in my mind. He’s a jerk who should act differently. The fact is that the real difference between badgering someone for sex and holding them down and forcing yourself on them is scope and not kind. But when it comes to coercion, scope matters a lot.
But at no point does Fonseca define her terms or differentiate between force and coercion. She then applies this confusing frame to sex work. “Prostitution under wage-slavery is in every instance either forced or coerced and therefore qualifies as rape.”
Consent is contextual
“Consent does not exist in a vacuum, sealed off from the other conditions of society,” Fonseca writes. “To decontextualize consent from the broader structures of the economy and society, which both create the options we are able to choose from and apply pressure for us to choose certain options over others, is to only understand consent in its most superficial meaning.” This is a very true and important point!
Fonseca quotes Michael Parenti: “There is no such thing as a freedom detached from socioeconomic reality.”
Absolutely. The socioeconomic reality in America in 2020 is that if you don’t work and you can’t figure out our hole-ridden, extremely hard-to-access social safety net and no one takes pity on you, you don’t eat. We’ve created a system where we’re all forced to do things we don’t want to do to avoid starving. Right-wingers describe this system as “voluntary” and socialists describe it as “wage slavery” but in reality it just seems kinda unnecessarily shitty. Especially considering that we give billions of taxpayer dollars to corporations every year.
Here are some examples of consent contextualized in the broader structures of the economy and society:
Imagine the only job you’re qualified for in your city is at a religious institution that fires employees who are unwed and visibly pregnant. You accidentally get pregnant. You can’t move for some reason. Maybe you’re caring for a relative who’s too sick to move. So you get an abortion you absolutely do not want because and you can’t afford to lose this job. Did you choose to have an abortion? No one held a literal gun to your head and forced you to get an abortion. You do have some level of choice in the matter. But it also can’t be said to be a completely consensual choice. Circumstances forced you to stay put geographically and the school forced you to choose between employment and continuing the pregnancy. Interestingly, most women in America who get abortions already have kids and want more but can’t afford them.
Stigma is an even subtler form of coercion. Let’s say you’re a sex worker who’s saving money to get certified to work at a daycare. You choose to keep your job a secret because you know most day care centers won’t hire you if they know you ever did sex work. That’s a choice, yes. But the stigma against sex work forced you to choose between being open and honest and getting a job in your desired field. This stigma is self-reinforcing, as most people never realize how many of the seemingly happy, well-adjusted men and women they know in civilian careers including social justice, music, comedy, and acting have done sex work at one time. So they think every sex worker is a drug-addled streetwalker.
Ironically, Fonseca gets super close to understanding consent as a spectrum when she writes, “In previous modes of production, the force of the sword is what disciplined the masses into submission to the desires of the ruling class. Under capitalism, however, the sword has largely been replaced by money.”
Yet she never acknowledges or grapples with the fact that money and swords are on very different ends of the coercion spectrum.
When it comes to sex work and the coercion spectrum, I like this graphic from Decriminalizing Survival: Policy Platform and Polling on the Decriminalization of Sex Work, a report from Data for Progress:
Sex isn’t magic
Fonseca makes a ton of claims about sex work that apply absolutely equally well to all forms of wage labor under scarcity and capitalism. At no point in the entire extremely long essay does Fonseca even attempt to write a critique of sex work that you can’t apply equally to all forms of wage labor under scarcity and capitalism.
To make the point clear, I’ve replaced all mentions of “sex work” and related concepts with “work” and related concepts so you can see just how well the criticisms transfer.
Here are some examples:
“The ‘̶s̶e̶s̶s̶i̶o̶n̶’̶ ̶b̶e̶t̶w̶e̶e̶n̶ ̶a̶ ̶p̶r̶o̶s̶t̶i̶t̶u̶t̶e̶ ̶a̶n̶d̶ ̶h̶e̶r̶ ̶b̶u̶y̶e̶r̶ workday is always a power struggle between the m̶a̶n̶ boss and the w̶o̶m̶a̶n̶ worker, the buyer and the bought. Any p̶r̶o̶s̶t̶i̶t̶u̶t̶e̶ worker knows this intuitively: c̶l̶i̶e̶n̶t̶s̶ bosses want us to do more for less money, we want to do less for more money.”
“If t̶h̶e̶ ̶s̶e̶x̶ ̶t̶r̶a̶d̶e̶ labor under capitalism was truly a free choice then those who have the most freedom in society (the rich) would not be the least likely to engage in it.”
Quoting Rosemary Tong:
“When a poor, illiterate, unskilled woman chooses to sell her s̶e̶x̶u̶a̶l̶ ̶o̶r̶ ̶r̶e̶p̶r̶o̶d̶u̶c̶t̶i̶v̶e̶ services, chances are her choice is more coerced than free.”
So if every one of her critiques of sex work applies equally well to every other kind of work under scarcity, how does Fonseca justify criticizing sex work in particular?
“The difference is that when the power struggle is enacted in such a tangible way during s̶e̶x̶ work, a s̶e̶x̶ job that most in the trade were coerced into by material conditions, s̶e̶x̶u̶a̶l̶ violence is a necessary component of the equation.”
Abolition isn’t a real thing
The last point I want to make is that Fonseca advocates for something she calls “abolition” of sex work. “Socialist feminists should attempt to smash the sex trade,” Fonseca writes. But you can’t “smash” or “abolish” a market. You can only stigmatize and criminalize it. And in her seven-point plan, that’s exactly what she calls for.
Decriminalizing and de-stigmatizing prostituted people.
Repressing global sex trade markets through containing demand.
Creating accountability for buyers and pimps outside of the bourgeois state judicial system.
Ensuring the universal right to exit and right to not be prostituted.
Focusing specifically on the most vulnerable proletarian women in the sex trade, including women who are indigenous, Asian, Pacific Islander, Black, Latin American, transgender, and especially children.
Pursuing an ambitious plan for women’s liberation alongside increasing opportunities for women at the bottom including good jobs, housing, education, etc.
Organizing towards complete abolition on the road to social revolution.
While the wording is slightly obfuscatory, there’s simply no way to contain demand or create accountability without stigmatization, criminalization, or both. We know prohibition and stigma kill sex workers and exacerbate human trafficking. According to Amnesty International, “The criminalisation of clients has not reduced trafficking or sex work, but has increased sex workers’ vulnerability to violence, harmed HIV responses, and infringed on sex workers’ rights.”
“I have been raped by police officers in every city except for Indianapolis,” sex worker Tamika Spellman said. “It’s not consent for me to have to give you a sexual favor so that I don’t go to jail.”
Those are all my major points. But before you go, here are a few minor quibbles I had with the essay.
First, I shit you not, Fonseca writes that socialist nations got rid of sex work after they “provided women with property rights…”
Isn’t the whole point of socialis… forget it.
She also claims that “under global capitalism” prostitution is more widespread than at any point in history. Citation very much needed.
But the weirdest part of the whole thing is how badly Fonseca seems to understand sex work. She claims to have done sex work for years. “I know that stories like mine, and of the many women I worked with, are not being told by the dominant, liberal, and unprincipled supporters of the sex trade who mask themselves as ‘pro sex worker,’” Fonseca writes. Fair enough.
But then Fonseca goes on to erase old and disabled women from sex work, writing that women “always age out” of sex work and that sex work “glorifies the able-bodied woman as the perfect form while fetishing or rejecting the disabled woman.” I personally know a full-time, full-service sex worker who qualifies for Social Security and a visibly disabled former full-service sex worker who would like a word.
Fonseca’s essay is a classic case of advocating for a cure that’s objectively worse than the disease. Yes, scarcity and power differentials make work and sex work not entirely consensual. But stigmatization and criminalization have been tried, extensively, and have never in any place or time ended the sale of sex for money. Not only do they not achieve their stated purpose, but they also do nothing to ameliorate scarcity and power differentials. Lastly, prohibition of sex work and stigmatizing sex work kills sex workers, makes it harder for sex workers to stop doing sex work, and exacerbates human trafficking. Criminalizing just the demand side also doesn’t stop trafficking or sex work and increases violence against sex workers. It’s bad thinking that leads to bad conclusions and worse recommendations.