Mama Amon
JF-Expert Member
- Mar 30, 2018
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On 31 October 2023, the Dar es Salaam Regional Commissioner, Mwalimu Albert Chalamila, while Speaking to all Dar es Salaam District Commissioners in a meeting which he convened, he instructed his subordinates to de-register massage service providers who are operating as sex trade centers.
Mwalimu Chalamila strongly condemned some of these business centers, on the ground that, although they are legally licensed, they were operating contrary to the requirements of public moral norms.
To substantiate his claims, the RC talked about one video that went viral in the social media showing some women who wore hemmed clothes, which are sexually revealing and provocative and who were engaged in a hip-shaking dance while submerged in foam-generating water.
Four days later, on 04 November 2023, Mwalimu Chalamila made an Anti-Prostitution Operation in Kinondoni District, at Mwananyamala. The exercise was conducted as a para-military operation. He ordered the demolition of what he called "brothels."
These recent utterances and orders, between 31 October 2023 and 04 November 2023, as made by the Dar es Salaam RC, Mwalimu Albert Chalamila, appear to be a threat to the principles of good governance.
When discussing the morality of prostitution, as when discussing any other moral issue, our political leaders are expected to distinguish between positive laws and moral laws.
The former is a mandatory standard of behavior prevalent in a nation as expressed in national statutes, rules and regulations as regularly formulated by the government ministers and reflected in the public opinion and the lives of the majority of its members.
And the latter is a prescriptive standard of behavior prevalent in a given community, which is a segment of a nation, as expressed in sectarian scriptures, canons, or customs together with the reasoning behind them, that an individual may adopt as a yardstick of behavior within the limits of one's community.
While we understand that, our RC was talking about public morality as expressed in our positive laws, he did not cite any legal provisions to back up his utterances, and properly guide his subordinates on what is to be done and what not to be done.
The RC was only heard complaining about the violation of "public moral norms," the phrase which is not identical to "public legal norms," where the latter provide administrative and regulative parameters for all state actors.
And in fact, there is no one-to-one correspondence between "public moral norms" and "public legal norms." While there is an overlap between the two, some moral evils are not legal evils, and some legal evils are not moral evils.
This is to say that not all sins are crimes just as not all crimes are sins.
For example, on one hand, while fornication is a sin, it is not a crime since it legally permitted under section 160 of the Marriage Act (1971).
And on the other hand, while prostitution is a sin, it is not a crime under any legal provision in our legal system. Under sections 145, 146 and 148 of our Penal Code (Cap 16 RE 2002) only keeping brothels, living wholly or in part on the earnings of prostitution, and causing a person to participate in prostitution with any other person, are criminalized.
Furthermore, while driving through a red traffic light is a crime, it is not a sin under any moral code.
These elementary facts, as known by every legally literate citizen, mean that the RC has given ambiguous instructions to his subordinates, and such an ambiguity can create social chaos at an implementation stage.
The level of civic awareness that prevails in Tanzania is big enough to allow many to know and enjoy their constitutionally protected sexual rights which are beyond police patrols and other unwarranted government interventions.
Thus, this ambiguity constitutes a wake up call to all lovers of critical thinking on matters of public policy in a republican constitutional state, to systematically address the following key question: What should our civil and criminal laws say about sex as reciprocal self-donation, sex-for-gift exchange and sex-for-payment exchange?
While we fully support the good intentions shown by Mwalimu Albert Chalamila, we differ on the strategy he chose in addressing the alleged social problem at hand. The reasons for differences between us and Mwalimu Chalamila are many, as will become evidence soon.
Specifically, we write this "civics lecture" to cast some light on these sensitive issues as we offer some prudent limits which must be observed by our politicians and their supportive law enforcement organs when it comes to the regulation of human sexual behavior in democratic states like Tanzania, as opposed to many other theocratic states, where non-marital sex is crime whose punishment is death penalty. We shall provide answers to the following questions:
- What is hetero-affective prostitution and which human activity counts as one?
- If prostitution is a hetero-affective sexual activity, what counts as sexual activity and what does not count as one?
- Why do some persons decide to perform hetero-affective sexual activities?
- Why are there laws for regulating hetero-affective sexual activities?
- What are the possible hetero-affective Universal Sexual Rights in a sexually plural world?
- What different kinds of hetero-affective sex laws that are needed in a plural society?
- Are there harmless, Private, Consensual Sexual Behavior between adult hetero-affective persons?
- What is the nature and scope of the hetero-affective prostitution as a social problem?
- What is wrong with sex trade as long as it involves a valid contract between sex traders and their customers?
- And apart from criminal enforcement and police patrols, what are the alternative public policy interventions that can be used by the government to mitigate hetero-affective sex trade?
I. What is prostitution and which human activity counts as one?
Before we consider what ‘prostitution’ means in law, it will be useful to consider what it means in ordinary layperson's language.
In current layperson's usage, ‘prostitution’ is understood to refer to the practice of providing sexual services for payment; and ‘prostitute’ refers to the person who offers or agrees to sell such services.
At its heart, then, prostitution seems to involve a commercial transaction between persons who are neither spouses nor friends.
This is to say that, in the eyes of layperson, prostitution is the act of engaging in sexual activity with people who are not one's spouse or one's friend in exchange for immediate monetary or other valuable payment.
In addition to people who ‘prostitute themselves’, we can also talk about people who ‘are prostituted’. This sense clearly includes sex workers who are coerced into selling sex by a sex trafficker or pimp.
The most commonly offered alternatives to ‘prostitute’ and ‘prostitution’ are ‘sex worker’ and ‘sex work’ or ‘commercial sex work’ and ‘commercial sex worker’ or 'sex trade' and 'sex traders.'
As a rule the layperson’s language is always vague. For example we have seen that, sex trade is the sale of sexual service. This definition can be expanded to capture the emotions, of the commercial sexual provider, as well as the remuneration aspects of the sexual transaction.
Consequently, sex trade can be defined in terms of emotionally neutral, indiscriminate, specifically remunerated sexual services. However, such a definition exclusively relates to sexual-monetary exchanges, where a person sells her bodily service for financial gain.
But, what about a worker who sleeps with his/her boss for non-monetary favors? And what about a student sleeping with his/her teacher for marls, resulting in what is known as sexually transmitted grades?
There are school girls who offer themselves for few treats; the university student sleeps with his/her lecturer for a few more points; the employee becomes the boss’s mistress/concubine to keep her job; the saleswoman compensates for mediocre sales by going out with some of her clients; and the wife takes other lovers to make up for her husband’s insufficient or non-existent income. Are not such persons also prostituting? These ambiguities need systematization of the definition of sex trade, and this is done through legal definitions.
Thus, having considered how ‘prostitution’ is used in ordinary language, we now turn to the main subject of the inquiry—namely, how it is defined in our laws which define the perimeter of our politicians and administrators such as Ministers, RC's, DC's and their subordinates.
So, what counts, or should count, as prostitution in our laws? In the Penal Code (Chapter 16, Revised Edition of 2002), the statutory definition of prostitution insinuates that prostitution involves the provision of sexual services in exchange for money or other gains.
Specifically, It is an offence contrary to sections 145, 146 and 148 of the Penal Code to "knowingly live wholly or in part on the earnings of prostitution" or "keep a house, room, set of rooms or place of any kind whatsoever for the purposes of prostitution." The Penal code does not define the term ptostitution.
Section 3 of the Anti-trafficking in Persons Act No. 6/2008 defined prostitution as any "transaction, scheme or design involving the use of a person by another for sexual intercourse or lascivious conduct in exchange for money, profit or any other consideration.” However, it does not define the phrase "sexual intercourse" and is silent on the meaning of "lascivious conduct."
Thus, it is logical to conclude that the term prostitution has never been defined in statutes. Its meaning therefore is derived from common law. It is judges who have decided and continue to decide precisely what activities amount to prostitution and who can be regarded as a prostitute.
In general, the essence of the offence of prostitution appears to be knowingly receiving money from the acts of prostitution or knowingly being supported by the prostitute from the proceeds of that prostitution.
But, simply receiving money from a prostitute, for example as payment for food or accommodation supplied, is insufficient for a conviction under the penal code.
The circumstances of the defendant’s relationship with the prostitute and the circumstances in which the payment was received from the prostitute must be considered. The prosecution must prove the defendant knew that he or she was living wholly or partly on the earnings of prostitution.
According to the the Sexual Offences Special Provisions Act (1998), which complements the Penal code, "prohibited sexual intercourse" means sexual intercourse between persons who are not spouses to each other; "sexual intercourse" whether natural or unnatural, shall, for the purpose of proof of a sexual offence, be deemed to be complete upon proof of penetration only not the completion of the intercourse by the omission of seed.
In short, a quick reflection on the way "prostitution" is statutorily defined, shows that it remains ambiguous in specific contexts where it is not possible to draw a clear line between what counts as a "sexual activity" and what counts as a "non-sexual activity."
This ambiguity arises from the lack of statutory definitions of such terms as "earnings of prostitution," "sexual activity," "lascivious acts," and "carnal knowledge."
So, the Dar-es-Salaam anti-prostitution operation (DAPO) raises more questions than answers, and these question must be asked and answered now. Specifically we have to ask and answer the following questions:
Is it prostitution to receive a fee in return for sexual conduct that does not involve genital penetration or other touching of the genitals such as lap dancing?
Is it prostitution if there is no physical contact at all between the seller and another person (as when the buyer pays to watch the seller strip or masturbate), or if the only physical contact is between the seller and a third party (as when the buyer pays others to perform in a sex show or the filming of a pornographic movie)?
And what exactly is the nature of the required ‘exchange’? Is it prostitution if, in return for sex, a person gives money to his spouse or other steady sexual partner?
Is it prostitution if sex is provided in return for money in the context of a ‘therapeutic genital massage’ relationship?
Is it prostitution if, in return for orgasmic massage (also known as happy ending), a person pays a previously agreed amount of money to the massage service provider?
Would it be prostitution if a person agreed to exchange sex in return for non-propertised benefits such as a job promotion or political favor?
Would it be prostitution if a person accepted money as ‘thanks’ for having sex, or for her incidental ‘expenses’, rather than pursuant to a quid pro quo agreement?
Despite these ambiguities, our Regional Governor, Mwalimu Chalamila, provides general and superficial comments which portray him as being content with a "we-know-prostitution-when-we-see-it" approach.
But in the absence of a statutory definition of such terms as "prostitution", "earnings of prostitution", "sexual intercourse," "carnal knowledge," lascivious conduct" and the like the "Dar es Salaam Anti-Prostitution Operation (DAPO)", and other similar operations in the future will remain comedian shows orchestrated by our politicians for some ulterior motives.
If so, how is the basic transaction that constitutes the offense of selling or buying sex defined? Globally, we can identify three basic approaches the statutes have taken.
One group of (mostly older) offense provisions makes it a crime simply to ‘be a prostitute,’ ‘engage in an act of prostitution,’ or (in Iceland11) ‘pay for prostitution,’ but without any additional explanation of what it means to be such a person or engage in such an act.
Defining the offense of prostitution in this way is both circular and vague. It gives potential offenders, law enforcement, and courts essentially no instruction about which acts are prohibited. Moreover, it is potentially both under- and over inclusive.
It is under inclusive in the sense that it might be understood to exclude the buying of sex, as well as the selling of sexual acts other than intercourse. It is over inclusive in the sense that it could conceivably be understood to include prostitution in its non-commercial, merely ‘promiscuous’, sense.
A more modern approach to defining prostitution is to specify what it is that must be bought or sold. In a majority of U.S. states, as well as in England and Wales, Norway, and Sweden, this is done by referring to the sale or purchase of ‘sexual activity’, ‘sexual services’, or ‘sexual contact’, sometimes with further specification of acts, but often without.
A few other jurisdictions prohibit the sale or purchase of conduct that is ‘lewd,’ a notoriously vague term that in this context seems to mean something like ‘tending to incite sensual desire or imagination’.
Defining prostitution as ‘sexual’ or ‘lewd’ conduct for hire may be a bit better than referring simply to ‘being a prostitute,’ but it hardly solves the problem of vagueness.
By itself, the term gives us almost no direction on how to decide puzzling cases involving conduct such as oral sex, manual-genital stimulation, lap dancing, or stripping.
The final means of defining prostitution is to enumerate exactly which sexual acts for hire are prohibited. While this approach would seem to solve the problem of vagueness and overbreadth, it nevertheless raises questions of policy.
Which acts should be included here? It is probably no surprise that every U.S. state that follows the enumeration approach includes on its list of prohibited acts that of ‘sexual intercourse’.
But beyond that, it is striking how little consensus there is. Other specific acts that are listed in one or more, but by no means all, statutes include fellatio, cunnilingus, anal intercourse, manual genital touching, sadomasochistic abuse, and fagellation.
On our view, such vague and circular reasoning related to an offense definition of "prostitution" is sufficient reason for legal reforms in Tanzania. These reforms should be informed by other related issues which we briefly discuss below.
II. If prostitution is a hetero-affective sexual activity, what counts as a sexual activity and what does not count as one?
Admittedly, there are many types of sexual activities: casual sex, promiscuity, sex with prostitutes, sex between friends, adultery, rape, cyber-sex, masturbation, sex between two people who love each other, orgiastic sex, sex with animals, sex with corpses, sex involving fetish objects, and so on.
Some cut across each other: casual sex can be had with a friend or a stranger; it can be promiscuous but it need not be; it can be orgiastic but need not be. Someone can have sex with a prostitute he loves. Sex between two people can be “merely” masturbatory. Adultery can be committed with a friend. And so on.
We cannot attempt to define each item on this non-exhaustive list of sexual activities, but attempting to define some items may highlight the controversial issues involved in arriving at such definitions. But, before defining any of them, we need a general definition of a "sexual activity," which is a genus that unites them all.
Let us start with an example of adultery. In order for us to know whether person X committed adultery with person Z, we need to know with certainty that person X committed a human act Y with person Z, and that human act Y is a sexual act.
So, if we don’t know what a sexual act is, we might not know whether x committed adultery or not. Similar reasoning applies to such acts as coitus, fellatio, cunnilingus, rape, incest, fornication, prostitution, and masturbation.
So, in this part we want to define the question, "what is a sexual act?" We are not after a rough idea of what a sexual act is, but a necessary and sufficient definition that tells us the necessary and jointly sufficient conditions that capture all and only sexual acts. This is important for two main reasons.
First, it is an interesting philosophical question in itself, as it allows us to formulate the definitions of different sexual acts by using the "genus-species approach," which can teach us something about the common attributes of different types of sexual categories such as rape, incest, marital sex, non-marital sex, fornication, prostitution, and masturbation.
Second, knowing whether an act is sexual helps, among others, with (1) legal issues (settling disputes among participants to the act); (2) social issues (understanding how to relate to each other and to society in general); and (3) personal issues (knowing whether what happened between me and Jim last night was sex).
At a general level, there are a number of possible criteria for defining a sexual activity including physical behavior, contact with sexual body parts, sexual pleasure, intentions, sexual desire, etc. Let us look at each briefly.
Physical behavior: Suppose that we define “sexual act” by saying that any act that has sexual behavior in it is sexual. So, for example, if penile–vaginal intercourse is sexual behavior, any act that has that in it is sexual.
This won’t do, because we don’t always know what counts as sexual behavior. The same behavior is sometimes sexual, sometimes not. Whether two men kissing each other on the cheek, close to the lips, is sexual depends on, for example, their culture. If they come from a culture where it is customary for men to greet each other this way (e.g., the Middle East and Eastern Europe), chances are that the kiss is not sexual.
Consider another example: inserting one finger into a vagina is a behavior often found in sexual activity, but by itself it does not tell us whether the act is sexual.
If the man or the woman doing the inserting is a doctor, chances are that the act is not sexual. If the person doing the inserting is the woman’s sexual partner, chances are the act is sexual.
But, alternatively, it can be a genital sanitation act, and therefore, not a sexual act. If a woman inserts a finger in her own vagina, this, too, might or might not be sexual. If she is doing it because she is masturbating, it is sexual.
Or consider a simple, yet firm, handshake: whether it is sexual depends again on the context, the history of the two people shaking each other’s hand, and the two people themselves. Thus, mere behavior is not going to always tell us whether an act is sexual. Of course, sometimes it does.
Now consider the most controversial scenario. A husband inserts his erect penis into the vaginal of his wife while they are in a bathroom taking a shower by using liquid soap which has been poured in water. Is this a sexual act or a genital sanitation act? Their intention will provide us with an answer, and not the behavior. This example shows that there is a difference between a sexual act and a genital sanitation act.
Further still, consider a scenario where husband inserts his erect penis into the vaginal of his wife while they are on a bed while using coconut oil to massage several parts of the wife's body, including the vagina. Is this a sexual act or a genital massage act? Their intention will provide us with an answer, and not the behavior. This example shows that there is a difference between a sexual act and a genital massage act.
Contact with sexual body parts: Suppose an act is sexual if it involves contact with a sexual body part, one’s own or another’s. If Juma puts his finger in the vagina of Jane, he makes contact with a sexual body part of Jane, and by this criterion their act is sexual. But some of the above examples show that this criterion also won’t do.
The vagina is a standard sexual body part, but whether contact with it is sexual depends on factors other than the contact itself. This means that contact with a sexual body part is not enough (sufficient) to classify an act as sexual.
The second criterion won’t do for another reason: like “sexual behavior,” we don’t know what a sexual body part is independently of knowing whether the act is sexual. That is, whether a body part is sexual depends on what it is doing or what is being done to it.
Sexual pleasure: Perhaps an act is sexual if it involves or produces sexual pleasure. If two people who, without taking off their clothes, kiss, rub, and tug at each other, all the while feeling sexual pleasure, their act is sexual. This sounds correct. But it won’t do if it means that producing sexual pleasure is necessary for an act to be sexual. First, many acts that are clearly sexual do not produce sexual pleasure though they may produce other types of pleasure.
Suppose that Christopher and Marissa, both young, sexually inexperienced high school students, badly want to have intercourse with each other, but neither really knows what to do. They engage in intercourse, but it is painful, awkward, and blundering, and the experience frustrates both. Their act is sexual, but it does not produce pleasure of any kind.
Consider a couple who have been having the same old, tired, routine sex. Another Friday night comes by and once again they go to bed to do their thing “Let’s go honey; it’s nine o’clock”. Neither is stimulated enough and neither reaches orgasm. They have sex, as always, but there is no pleasure in it.
As a final example, consider a female prostitutes who performs coitus with her male customers many of whom are not sexually desirable, and she feel no pleasure in doing so. Have they not, then, engaged in sexual acts? Clearly they have, so this criterion won’t do if it means that producing or involving sexual pleasure is necessary for an act to be sexual.
Intentions: Perhaps we can use the concept of intention as a criterion by which to decide whether an act is sexual. If physical behavior, body parts, and sexual pleasure fail to provide necessary and sufficient conditions to define “sexual act,” we are left with intentions, though we still need to figure out what the intention is for.
It won’t do to say, “the intention to have sex” or “the intention to engage in a sex act,” because we want to define “sex” or “sex act,” and relying on the concept of “having sex” or “sex act” is to use the very same terms to define what we set out to define (this would be a circular definition). We need to define “having sex” or “sex act” if we are to understand what it is to intend to do these things.
So suppose that instead we say, “the intention to physically touch or interact with someone else.” This also won’t do because not all physical interactions are sexual (e.g., boxing, hugging a sibling), and not all sexual acts involve physical contact with another person (e.g., phone sex, watching pornography).
One reasonable candidate is “the intention to produce sexual pleasure in oneself or in another.” This accounts for some cases. A doctor’s inserting his finger into a woman’s vagina is a sexual act if he intends to produce sexual pleasure for himself or the woman, but it is not sexual if he intends to examine the woman.
The man feeling sexual pleasure by glancing briefly at a good-looking person does not have a sexual act because he did not intend to derive sexual pleasure from looking. But the man who continues to look at the good-looking person does undergo a sexual act because he intends to (continue to) derive pleasure.
However, the intention to produce sexual pleasure gets many cases wrong. If two people have sexual intercourse intending to procreate, they engage in a sexual act. Although they experience or may experience sexual pleasure, this is a by-product of the action. So this criterion does not give us a necessary condition for an act to be sexual. It is also not sufficient.
Sexual desire: One other criterion by which to define sexual acts is sexual desire. Here is a popular definition offered by one philosopher: “sexual desire is desire for contact with another person’s body and for the pleasure which such contact produces; sexual activity is activity which tends to fulfill such desire of the agent”.
“Eating activity” is activity that satisfies desires for food (which could, but need not, include hunger), so we should expect something similar for sexual activity. But, the definition faces two difficulties. The first is that we need to know what sexual desire is if the definition is to be helpful or informative.
The second is that the definition faces obvious counter-examples. As worded, the definition gives the wrong results.
Suppose that after I have an angry argument with one of my colleagues, I say to him, “You know what? It’ll give me great pleasure to punch you in the face right now!” I desire contact with my colleague’s body, since I want to punch him, and the pleasure the contact will give me.
But unless I’m a complete pervert, the pleasure I derive from punching him is not sexual. So wanting to punch my colleague fulfills the left-hand side of the definition but not the right-hand side. As worded, then, the definition is off-track.
Another counter example: Two people can have sex to reproduce without the desire to have sex. A prostitute performing fellatio on a man does it typically not to satisfy or fulfill her sexual desire, but to make money.
She engages in sexual activity yet without a sexual desire to be fulfilled. Thus satisfying sexual desire is not necessary for an activity to be sexual.
Whether fulfilling sexual desire is sufficient for an activity to be sexual depends on what we mean by “satisfaction” or “fulfillment.” If we mean something like “the desire is no longer felt for the time being” or “the desire is gone,” satisfying sexual desire would not be sufficient.
Consider: There are types of sexual desire that do not involve the desire for contact with another person’s body. Indeed, any such contact deflates the desire entirely, as if the desirer has cold water poured over him. Voyeurism and exhibitionism are two such desires.
While there are voyeurs who peep because the opportunity to see someone stripping or having sex is just too good to ignore, “real” voyeurs enjoy their sexual acts precisely because they are able to look without touching (whether the voyeur minds that the person being looked at knows or does not know she or he is being looked at depends on the voyeur).
The exhibitionist “gets off” on being watched by others getting naked, having sex, masturbating, and so on; he does not desire to be touched by or to touch those to whom he exhibits himself (not initially, at least). Like voyeurism, the definition renders this type of desire non-sexual.
Again consider: popping one of those “food” pills is enough to quench the desire for hunger, but popping these pills is not an eating activity. Similarly for sex: injecting myself with a medicine designed to quell sexual desires, taking a cold shower, taking a powerful sleeping pill, or even just focusing on something other than sex might be sufficient to get rid of the sexual desire, yet none of these activities is sexual.
If by “satisfying sexual desire” we mean something like, “the desire achieves its goal” (which is sexual fulfillment), then satisfying a sexual desire by a particular activity would be sufficient for that activity to be sexual.
But then the problem of circularity arises again: “sexual activity is that activity which satisfies sexual desire by means of a sexual activity.” This is circular reasoning and is not going to take us anywhere. The criterion of sexual desire, then, does not succeed in defining sexual activity.
Stock-taking: It seems that all the plausible criteria, taken individually, fail. What if we combine them? Right off the bat, however, two criteria – sexual behavior and sexual body parts – cannot be included in such a combination-definition, because, as we have seen, they get things back to front.
Whether a behavior or a body part is sexual depends on whether the act is sexual, not the other way around. This means that we are left with the two other criteria. They can be combined in at least one of two ways.
- Either: An act is sexual if, and only if, it produces pleasure, is intended to produce pleasure, and satisfies sexual desire;
- Or: An act is sexual if, and only if, it produces pleasure, is intended to produce pleasure, or satisfies sexual desire.
The first requires that for an act to be sexual it satisfy all three criteria, the second that it satisfy only one of the three. Therefore, if we find an example of a sexual act that satisfies none of the three criteria, it would show that neither formulation succeeds in defining what a sexual act is.
Not surprisingly, there are sexual acts that do not produce pleasure, are not intended to, and that do not satisfy a (pre-existing) sexual desire.
Suppose that a couple have sexual intercourse with the intention of procreating, not to experience pleasure. Suppose that they are both also tired, under pressure to have children, and do not, at that moment at least, really feel like having sex with each other.
The sex ends up being boring, awkward, and painful, with neither of them achieving orgasm. This would be a sex act but one that does not produce pleasure, that is not intended to, and that does not satisfy sexual desire.
Another example: two people perform sexual intercourse on stage, at a sex club, or as an artistic performance. The act does not produce pleasure, is not intended to produce pleasure, and the performers have no sexual desires to do it.
Thus, both types of the above combinations won’t do. Indeed, they fail in the face of common examples.
Then, by the above criteria, a definition of “sex act” is not forthcoming. The reason has to do with the fact that what we commonly think is a sexual act does not depend on one criterion. Sometimes we rely on behavior, sometimes on intentions, sometimes on contact with body parts, and so forth.
The problem we faced when trying to define a "sexual act" is also encountered when we try to define such acts as "prostitution," "adultery," "fornication," "incest," and the like. For example:
Casual sex: Basically, casual sex is sex for the sake of sexual pleasure. However, no definition of “casual sex” that states, “sex for the sake of sexual pleasure” can succeed.
First, couples that are in love often have sex for the sake of pleasure (and for other purposes as well, such as to procreate or to make up after a fight), but it is not casual sex.
Second, sex with prostitutes is a type of casual sex, but prostitutes (typically) don’t do it for the sake of pleasure at all, but for money.
So even if the definition states, “sex merely for the sake of sexual pleasure,” it still won’t do, because it would run afoul of prostitution (although it may be that one and the same sexual activity can be done for pleasure for one party and for other purposes for the other party), and it would run afoul of loving couples: they often also have sex merely for pleasure, but it is not casual.
Adultery: We take the following, seemingly obvious, definition as our starting point: “adultery can be defined as extramarital sex: sex a married person has with someone other than his or her spouse.” Although it sounds sensible, it glosses over issues that make defining “adultery” a complicated task. Let us use the example of Ken and Laurie, a married couple.
Suppose that Ken engages in solitary masturbation. This is adultery according to the above definition, because Ken, a married man, has sex with himself; and because he is not married to himself, he has sex with someone other than his spouse.
Again, the “other than his or her spouse” also raises issues. Suppose that Laurie and Ken have a threesome with their neighbor Drew. Both Ken and Laurie would be having sex with someone other than their spouse.
According to our definition, both commit adultery. But it is not obvious that they do, one reason being that “adultery” is often understood to involve cheating, and threesomes that include both spouses do not.
There is another reason. Suppose that Ken and Laurie have an open marriage. One day, Ken leaves the house, telling Laurie, “Okay dear. I’m off to have sex with Lisette. Be back by six for dinner. Love ya!” Not only does Laurie know about this, she also doesn’t mind.
Again, according to the definition, Ken commits adultery. But if Ken does not commit adultery in his threesome with Laurie and Drew, why does he when he has sex with Lisette if Laurie knows and agrees to it?
Perhaps the reason has nothing to do with whether Laurie knows, but with whether she is present during or partaking in the sex act. This might work.
But suppose that Laurie watches Ken having sex with Lisette without her own participation (say she videotapes them having sex). Does Ken still commit adultery? If we say yes, the answer sounds contrived.
After all, Laurie knew about it and was present, filming the whole thing. If we say no, why would he commit adultery if Laurie is not present but knows about it?
Perhaps the answer to all three cases – the threesome, the mere knowledge on Laurie’s part, and Laurie’s knowledge, presence, but non-participation – is that Ken commits adultery in all three, but his adultery is morally permissible given Laurie’s consent. This might do the trick, though we suspect that many would disagree.
These few points indicate that a number of hurdles need to be overcome for a successful definition of “adultery.” We have failed to define “adultery,” but at least we have a good idea of the hurdles that need to be overcome in future attempts.
Prostitution: In defining “prostitution,” one thing that should be obvious by now is that no merely behavioral criterion will do. Handing money over to someone before or after a sex act does not show that the person receiving the money is a prostitute or that the transaction is one of prostitution.
It could be an artistic representation of prostitution or just a mere coincidence of events (a boyfriend giving his girlfriend, just before they have sex, the money he owes her for paying his ticket to the movies the night before).
Suppose instead that we define “prostitution” broadly as “sex for money” or “the provision of sexual services in return for money.” Whether this definition succeeds depends partly on what we have in mind when we think of prostitutes.
It covers those sex workers who receive payments for direct, physical, sexual interactions with a client, such as oral sex, intercourse, and hand jobs.
But if we wish to exclude, because we don’t think of them as prostitutes, phone-sex workers, strippers who do not engage in sex with their customers, and men and women who perform at peep shows, for example, the definition won’t succeed because all these people provide sexual services for money.
One option is to accept that the above are indeed prostitutes and to be happy with the definition. Another option is to amend the definition to exclude them. The first option won’t yield a true definition.
Young, beautiful women who marry older husbands for their money, and young, beautiful men who marry older women for their money provide sex and sexual pleasure to their older spouses (among other things, including, we suppose, some sort of prestige in having them be seen with such pretty young things) in return for money and other goods for which money is usually needed (food, shelter, clothing) or that can be easily converted into money (jewelry, an apartment in Manhattan, or a villa in Tuscany).
Those women, who out of financial and other needs, marry and stay with men for economic reasons provide (among other things) sexual services for money. Are they all prostitutes? They are not – at least we don’t think of them as such – so we need to amend the definition to prevent this implication.
This brings us to the second option. In addition to fixing the definition to block the implication that many spouses are prostitutes, we also need to fix it to exclude sex workers we don’t regard as prostitutes (e.g., strippers, phone-sex workers, porn actors).
We can define prostitution as “the provision of sexual services usually involving physical contact and catering indiscriminately to those willing to pay the price”. By this definition we may intend “usually involving physical contact” to rule out sex workers who we don’t consider as prostitutes, but “physical contact” is too vague to do this.
Many strippers, for example, allow the client to insert money in their G-string; they often allow the client to feel their buttocks, thighs, and so on. And many female strippers perform lap dances, often to the point when the client orgasms. This is not just any physical contact, but one involving actual orgasm on the part of one person in the transaction. This is physical contact.
Perhaps not, but it is hard to see then why strippers should be allowed into the category of prostitution but not other types of sex workers. Is it only on account of the physical contact?
It is not clear that actual physical contact is necessary for someone to be a prostitute as the case of phone-sex workers who count as prostitutes shows. Again we can not frame a necessary and sufficient definition of prostitution.
Thus, our final point here is that, if we cannot provide a necessary and sufficient definition of a human conduct we are talking about, then we are not different from persons engaging in disinformation and malinformation.
A public leader who has six million persons behind him/her, as the case of Mwalimu Albert Chalamila shows, should always be guided by this principle. Disinformation and malinformation are social poisons which are violative of human dignity.
III. Why are there laws for regulating sexual activities?
The zealousness of “moral entrepreneurs” has provided our society with an enormous amount of sexual legislation against sexual behaviors such as rape, exhibitionism, Voyeurism, Prostitution, incest, and obscenity.
Exhibitionism refers o showing one’s genitals in a public place, to passersby; indecent exposure. Voyeurism refers to secretly watching people who are nude or having sex.
Prostitution refers to the exchange of sexual behaviors such as coitus, fellatio, manual masturbation and exhibitionism for money and/or goods. And obscenity refers to that which is offensive to decency or modesty, or calculated to arouse sexual excitement or lust.
But Why are there these laws for regulating sexual conducts? generally, the universal reason is to prevent harm to others. And specifically, the reasons include: the right to freedom from sexual assault, the right to freedom from sexual coercion, and children's right to freedom from sexual exploitation.
Other reasons include, the right of the family, as the principal unit of the social order, to freedom from acts which threaten its integrity, where adultery and desertion of a spouse, are typical threats.
Still, there is the right of the society to freedom from out-of-wedlock children's who are not born in a supportive family, where fornication is a typical threat.
There is yet another realm of motivation behind sex laws, namely, the right of the society to freedom from non-procreative sex acts, which threaten the transmission of human life from one generation to another, where, tribadism, bestiality, and contraception, are typical threats.
Most of these laws originated from some religious traditions which defined what sexual acts are “unnatural,” “immoral,” or “sinful.”
Their religious origin was based on the belief that, the government had a duty to uphold religion as a pillar of civilized society by using the law to make people good.
To the extent that some of sex laws were derived from the Judeo–Christian, or any other, religious tradition, they seemed to violate the principle of religious liberty, according to which, every citizen has a right to voluntarily choose membership in one religious community, which means simultaneously rejecting the remaining religious beliefs.
It is for this reason that, the constitutions of modern plural, liberal and democratic states, have separated religious and state functions. They seek to prevent one religious group from imposing its tradition on others.
If so, what should be the Universal Sexual Rights in a sexually plural world? And, given these sexual rights, What kinds of sex laws can make sense in a pluralistic liberal society? We respond to these questions next.
IV. What are the possible Universal Sexual Rights in a sexually plural world?
According to the World Association of Sexual Health in 2014, in order to ensure that human beings and societies develop healthy sexuality, the following rights must be recognized, promoted, respected, and defended by all societies through all means.
1. The right to equality and non-discrimination. Everyone is entitled to enjoy all sexual rights set forth in this Declaration without distinction of any kind such as race, ethnicity, color, sex, language, religion, political or other opinion, national or social origin, place of residence, property, birth, disability, age, nationality, marital and family status, sexual orientation, gender identity and expression, health status, economic and social situation, and other status.
2. The right to life, liberty, and security of the person. Everyone has the right to life, liberty, and security that cannot be arbitrarily threatened, limited, or taken away for reasons related to sexuality. These include: sexual orientation, consensual sexual behavior and practices, gender identity and expression, or because of accessing or providing services related to sexual and reproductive health.
3. The right to autonomy and bodily integrity. Everyone has the right to control and decide freely on matters related to their sexuality and their body. This includes the choice of sexual behaviors, practices, partners, and relationships with due regard to the rights of others. Free and informed decision making requires free and informed consent prior to any sexually related testing, interventions, therapies, surgeries, or research.
4. The right to be free from torture and cruel, inhuman, or degrading treatment or punishment. Everyone shall be free from torture and cruel, inhuman, or degrading treatment or punishment related to sexuality, including: harmful traditional practices; forced sterilization, contraception, or abortion; and other forms of torture, cruel, inhuman, or degrading treatment perpetrated for reasons related to someone’s sex, gender, sexual orientation, gender identity and expression, and bodily diversity.
5. The right to be free from all forms of violence and coercion. Everyone shall be free from sexuality related violence and coercion, including: rape, sexual abuse, sexual harassment, bullying, sexual exploitation and slavery, trafficking for purposes of sexual exploitation, virginity testing, and violence committed because of real or perceived sexual practices, sexual orientation, gender identity and expression, and bodily diversity.
6. The right to privacy. Everyone has the right to privacy related to sexuality, sexual life, and choices regarding their own body and consensual sexual relations and practices without arbitrary interference and intrusion. This includes the right to control the disclosure of sexuality-related personal information to others.
7. The right to the highest attainable standard of health, including sexual health; with the possibility of pleasurable, satisfying, and safe sexual experiences. Everyone has the right to the highest attainable level of health and well-being in relation to sexuality, including the possibility of pleasurable, satisfying, and safe sexual experiences. This requires the availability, accessibility, acceptability of quality health services, and access to the conditions that influence and determine health including sexual health.
8. The right to enjoy the benefits of scientific progress and its application. Everyone has the right to enjoy the benefits of scientific progress and its applications in relation to sexuality and sexual health.
9. The right to information. Everyone shall have access to scientifically accurate and understandable information related to sexuality, sexual health, and sexual rights through diverse sources. Such information should not be arbitrarily censored, withheld, or intentionally misrepresented.
10. The right to education and the right to comprehensive sexuality education. Everyone has the right to education and comprehensive sexuality education. Comprehensive sexuality education must be age appropriate, scientifically accurate, culturally competent, and grounded in human rights, gender equality, and a positive approach to sexuality and pleasure.
11. The right to enter, form, and dissolve marriage and other similar types of relationships based on equality and full and free consent. Everyone has the right to choose whether or not to marry and to enter freely and with full and free consent into marriage, partnership, or other similar relationships. All persons are entitled to equal rights entering into, during, and at dissolution of marriage, partnership and other similar relationships, without discrimination and exclusion of any kind. This right includes equal entitlements to social welfare and other benefits regardless of the form of such relationships.
12. The right to decide whether to have children, the number and spacing of children, and to have the information and the means to do so. Everyone has the right to decide whether to have children and the number and spacing of children. To exercise this right requires access to the conditions that influence and determine health and well-being, including sexual and reproductive health services related to pregnancy, contraception, fertility, pregnancy termination, and adoption.
13. The right to the freedom of thought, opinion, and expression. Everyone has the right to freedom of thought, opinion, and expression regarding sexuality and has the right to express their own sexuality through, for example, appearance, communication, and behavior, with due respect to the rights of others.
14. The right to freedom of association and peaceful assembly. Everyone has the right to peacefully organize, associate, assemble, demonstrate, and advocate including about sexuality, sexual health, and sexual rights.
15. The right to participation in public and political life. Everyone is entitled to an environment that enables active, free, and meaningful participation in and contribution to the civil, economic, social, cultural, political, and other aspects of human life at local, national, regional, and international levels. In particular, all persons are entitled to participate in the development and implementation of policies that determine their welfare, including their sexuality and sexual health.
16. The right to access to justice, remedies, and redress. Everyone has the right to access to justice, remedies, and redress for violations of their sexual rights. This requires effective, adequate, accessible, and appropriate educative, legislative, judicial, and other measures. Remedies include redress through restitution, compensation, rehabilitation, satisfaction, and guarantee of non-repetition.
V. What different kinds of sex laws that are needed in a plural society?
Criminal coercive sex acts:
These are laws seeking to prevent the use of force or exploitation in sexual relations—chiefly laws against rape and sex with children. In the past several decades, there has been a movement toward seeing such crimes not so much as sex crimes but as crimes of violence and victimization, with laws being revised to accommodate this different understanding and to protect the victims.
On this view, "rape" is often defined as “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by the sex organ of another person, without the consent of the victim.”
Laws that seek to prevent the sexual exploitation of children and adolescents are complicated by the issues of consent, coercion, and immaturity.
Many countries have laws against statutory rape, or carnal knowledge of a juvenile. Finally, every country includes laws against incest in its penal code.
These laws prohibit sexual relations between children and “biological parents, ancestors, or other siblings”; and some also prohibit activity involving step- and adoptive parents.
The nearly universal taboo against incest seems to have as its purpose the guarantee to children that the home will be a place where they can be free from sexual pressure. Incest laws also seek to prevent the genetic problems of inbreeding.
Criminal Consensual Sex Acts:
Although it is not difficult to see the logic of laws against force and exploitation of children and adolescents, many people are amazed to discover the number of sexual acts that are legally forbidden to consenting adults.
These laws have been justified on the grounds of the prevention of illegitimacy, the preservation of the family, the promotion of public health, and the enforcement of morality. In some countries there are criminal laws against fornication, cohabitation, and adultery.
Adultery, intercourse involving at least one person who is married to someone else. Cohabitation refers to unmarried people living together with sexual relations assumed. And Sodomy, originally defined as “crime against nature,” is defined to refer to oral and anal intercourse in contemporary laws.
Criminal Acts against Good Taste:
Another broad category of sex offenses includes crimes against community standards of good taste and decency. In this area we find laws against exhibitionism (public nudity), voyeurism , solicitation, disorderly conduct, being a public nuisance, and “general lewdness.” These statutes are by and large vague and punish acts that are offensive, or likely to be offensive, to someone.
For example, some countries have laws prohibiting exhibitionism, intentional display of sexual parts of the body, especially genitals and female nipples. Some countries exempt breast-feeding mothers from prosecution.
In some jurisdictions simple nudity (e.g. skinny dipping) is legal but nudity coupled with evidence of intent to shock or offend is prohibited.
Criminal acts against Reproduction:
The Judeo–Christian tradition considered sexual behaviors that interfered with reproduction to be sins. Thus, English common law criminalized these behaviors, including homosexuality, sodomy, birth control, and abortion, as conception was impossible with these behaviors.
These laws arose from an understanding of reproduction as the only legitimate purpose of sex and a belief in the necessity of vigorous propagation of the species. In many countries, such laws have been overturned by Courts.
Criminal Commercial Sex:
The law has deemed it illegal to make money from sex, at least in certain circumstances. It is not illegal to sell products with subtle promises of sexual fulfillment, but it is illegal to provide such fulfillment, either in direct form (i.e., prostitution) or on paper or electronically, as in pornography.
Prostitution is the exchange of sex for money or other items which have monetary value. Obscenity refers to materials such as plays, films, or other live performance that is “obscene.” That much is fairly simple. The real problem comes in deciding what exactly is obscene and how that will be determined without doing violence to the constitutional guarantee of freedom of speech.
Obscenity laws seem to have two goals. First, they attempt to prevent the corruption of morals by materials that incite sexual thoughts and desires. Second, they attempt to ensure that no one will profit by the production and distribution of such materials. Whether either can be done, or is worth doing, is a question that requires careful reflection.
VI. Are there harmless, Private, Consensual Sexual Behavior between adult hetero-affective persons?
Laws related to various aspects of human sexuality, such as HIV/AIDS, child sexual abuse, prostitution, and hate crimes based on sexual orientation and gender identity, have been discussed above. In this section we discuss laws related to the legality of private, voluntary sexual behavior between hetero-affective adults.
Historically, many states have enacted laws that criminalize certain sex-related behaviors, such as rape, incest, sexual assault, public indecency, and prostitution.
For the most part, there has been a strong consensus among citizens as to the need for and value of such laws. However, one area of the debate relating to the the legality of harmless /victimless, private, voluntary sexual behavior between hetero-affective adults has provoked considerable debate.
VII. Voluntary, non-commercial and hetero-affective adult fornication is legal
We have said that, the above para-military operation against prostitution misleads the society into falsely believing that apart from matrimonial sex and criminal commercial sex there is no intermediate zone under which there is legitimate sex which is both non-criminal and non-marital.
So, our first argument is premised on section 160 of the Law of Marriage Act (1971). Subsection (1) of the section enacts a statutory presumption of marriage in favor of reputed de facto unions that have existed for a minimum of two years.
And section (2) states that once the presumption is rebutted, the woman cohabitant and the children born of that union become legally entitled to apply to the court for economic support from the male partner. Here is our simple argument:
1. Fornication is an act of private, voluntary, hetero-affective sexual intercourse between two adult persons who are neither married to each other nor is any of them married to any other other third person. If any of the two is married to a third person, such an act is referred to as adultery.
2. Traditional hetero-affective marriage is understood as a union, based on mutual and binding promise ,between two persons, made before the public, to enter into a coital society which is specified by its ability to bring about a parental society, by reason of the inherent sexual activity which is restrictively, reproductively, rehabilitatively, residentially, resourcefully and relationally unitive in type, hence the "6R's of hetero-affective sexual activity."
This is to say that: marriage between two hetero-affective persons is a basic and transient human good since it, first, enables those who participate in it, the wife and husband, to flourish as individuals, second, it enables them to flourish as a couple, and third, it enables them to bring into existence a third new person as conceptus, which they gradually assist to flourish as an embryo, child, and eventually an adult, fully capable of participating in human society as an independent agent.
3. Under section 160(1) of the Marriage Act (1971), "Where it is proved that a man and woman have lived together for two years or more, in such circumstances as to have acquired the reputation of being husband and wife, there shall be a rebuttable presumption that they were duly married."
4. From section 160(1) it follows that, a man and woman can live together for two years and more while performing hetero-affective coital fornication, without violating any legal norm regulating human sexual relations.
5. Only rape, commercial sex, homo-affective pedication and homo-affective tribadism are criminalized under the Penal Code (Cap 16 RE 2002).
6. Thus, under the Tanzanian Criminal and Civil Law System hetero-affective, private, coital fornication, performed between two consenting adults is legally permitted under section 160 of the Marriage Act (1971) and not prohibited by any other legislation.
Let us explain this argument fully. Matrimoniality and criminality are the two traditionally recognized attributes based on which, the state has historically regulated sex and sexuality.
This practice is based on the fact that, the two attributes are mutually exclusive and provide an exhaustive classification of all known sexual acts.
Thus, from a legal perspective, matrimonial civil law and criminal law are the two species of state sexual regulation tools.
Under criminal law, punitive sexual regulation involves the threat of criminal prosecution, conviction, and sanctions. Specifically, criminal sexual regulation serves punitive and expressive/communicative functions.
That is, it punishes those who deviated from the norm of marital sex, and it strongly communicates to others that non-marital sex is unacceptable and should not be tolerated.
On the other hand, although marriage is a species of state sexual regulation, its regulatory power lies in state "recognition" of marital relationships and the institution’s ability to cultivate comportment with certain norms of sexual respectability and discipline. It does not involve the explicit sanctions, stigma, and punishment that characterize criminal law’s brand of sexual regulation.
The Matrimoniality-criminality binary was historically intended to eliminate any middle space where some sexual acts which are neither subject to criminal law governance nor family law governance could be performed. The two laws had punitive and stigmatic aspects of sexual regulation for all nonmarital sex acts.
Historically, the criminal regulation of non-marital sex had been the product of majoritarian sexual mores that sought to discredit and punish adultery and fornication.
Nevertheless, under the modern principles of liberal republican constitutionalism, the recognition that plausibility does not necessarily imply universal moral or legal validity, dethroned the dominant tradition from its role of pausing as a standard based on which the society could enforce majoritarian sexual norms by discrediting and punishing hetero-affective, private, consensual, adult sexual conduct.
The republican constitutional protection of the rights to liberty and privacy are the bases of the right to liberal sexual privacy which is afforded in the space between marriage and crime.
That is, criminalizing the private sexual conduct, such as hetero-affective consensual adultery and fornication, that occurs between two adults, is an unconstitutional restriction on the right to liberal privacy.
This right is available to certain types of hetero-affective sex, namely: private consensual sex between two adults, which include a wide range of sexual practices, where, everything from ordinary sex between cohabiting adults to sadomasochism goes.
By enacting section 160 under the marriage act (1971), the Parliament offered statutory protection for the kinds of sexual conduct that might exist in the intermediate space between marriage and crime, that is, it protected sex which is simultaneously nonmarital and noncriminal.
Under the section, two adult hetero-affective adults can engage in noncommodified acts of consensual, nonmarital sex while at home, in a hotel, in car, or elsewhere, without fearing that they might run afoul of the criminal law.”
So, the parliament removed non-marital sex from the zone of criminality by expressly juxtaposing it with acts that remain indelibly criminal such as statutory rape, domestic violence, rape, and prostitution.
On this account, except for pedication, the space between marital sex and criminal sex may accommodate hetero-affective fornication, adultery, nonmarital cohabitation, and other forms of private, consensual, and nonmarital sex, between two consenting adults.
But it is not always the case that our legal system furnishes strong protections for those engaged in sex which is nonmarital and noncriminal. Is it not the case that, the state no longer punishes or sanctions private, consensual non-marital.
Evidence on record shows that, despite its non-criminality, the state still regulates sex for the purpose of vindicating majoritarian sexual mores. Sexual regulation of this conduct survives in the form of an alternative civil system of sexual regulation.
Here, the civil system of sexual regulation relies on administrative codes of conduct as may be proposed by the employer and accepted by the employee, provided that such a proposal does not violate constitutionally protected rights.
Under the unconstitutional-conditions-doctrine, an employer is prohibited from promoting a policy, rule or regulation that infringes upon the employee's constitutionally protected rights.
On this view, although the civil system of sexual regulation does not involve deprivations of liberty or criminal convictions, it does impose concrete sanctions that serve to punish and sanction nonmarital sex. Let us look at some cases.
Civil Sexual Regulation of Employees: Through civil and administrative channels like professional codes of conduct, the investor, in her role as a public employer, can penalize the private sexual conduct of her employees.
In the public sector, under this system, police officers, public school teachers, and other public employees can face adverse employment consequences including refusals to be hired, terminations, and reprimands, because of their private sexual conduct.
Thus, the punitive civil regulation of nonmarital sex and sexuality is not a new phenomenon.
However, nowadays, the civil system of sexual regulation relies on administrative codes of conduct as proposed by the employer and accepted by the employee. No criminality is assumed.
So, for example, if RC's and DC's want to regulate non-marital sexual behaviors, they should focus on their subordinates based on the administrative codes of conduct in place and not beyond that.
VIII. Traditional marriage entails 'giftification' while prostitution entails 'commodification'
The second argument is bout the distinction between commodification of sex and giftification of sex.
The bedrock of traditional heterosexual marriage is the objective principle of sexual love which is entails the logic of a total gift of self. It is also known as the principle of interpersonal mutual gift, the principle of reciprocal self-gift, the principle of mutual self-donation, the principle of mutual self-giving, or the principle of personal mutual-gift exchange.
And the indissolubility of traditional marriage directly flows from the very logic of this principle of reciprocal total gift-giving between two persons and reciprocal total gift-receiving between two persons, which always do take place simultaneously.
In this case, indissolubility directly follows precisely because the gift of self is total, permanent and exclusive, since a total personal gift of this type involves obligations which are much more serious and profound than anything which might be purchased in any way and at any price.
There is an inseparability of indissolubility and exclusivity which is grounded in the nature of marital consent as reciprocal giving and receiving of self.
And as a general principle, gift exchange relations, as opposed to commodity exchange relations, involve the obligatory transfer, of inalienable objects or services, between related and mutually obligated partners.
A gift signifies interpersonal ties, since the purpose of the exchange is to produce a friendly feeling between the two persons concerned, and unless it does this, it fails of its purpose.
It comes with social obligations, since by accepting a gift, the receiver becomes invariably indebted to the giver, and has social and moral obligation to return the gift, meaning that, the purpose of gift exchange is to create and to cement social relationships among members of society.
And, it is always a transmission of personal identity in some way, as a gift always is an item that contains some quality of the giver, meaning that, a gift is a bearer of an inalienable identity of the giver, as the following example shows: "a watch that my father gave me for my birthday."
On the other hand, any commodity-exchange relation entails an exchange of alienable, impersonal and anonymous items, devoid of moral and social considerations or obligations, and therefore different from gift-exchange. So is prostitution.
By definition, prostitution, also known as sex work, is any act of renting one’s bodily organ(s) to others for their temporary sexual use in return for bodily use fee paid in cash on in terms of cash equivalent materials.
Some sex workers sell the use of the vagina, rectum or mouths, as they relate to the performance of recreational sex work. Others, such as surrogate mothers sell the use of other body parts such as wombs, ovaries, and eggs as they relate to reproductive sex work.
Analogically, surrogate fathers sell the use of body parts such as a penis and sperms by performing reproductive sex work as preferred by infertile couples, where the husband is the cause infertility.
In all these cases, prostitution involves at least two parties: the sex worker, who accepts money in exchange for engaging in sexual activity or in virtue of whose sexual activity money is paid to a third-party profiteer, and the sex worker user, who pays money in order to engage in sexual activity with the sex worker. And it has a variety of forms: Brothels, escorts, streetwalkers and more.
Women and men involved in prostitution are a cause for concern from both public health and economic perspectives. The promiscuity involved in the life of sex workers creates a high risk population for contractive sexually transmitted diseases. Prostitution is one of the more widely known and condemned forms of sexual deviance.
IX. Reasons for legally permitting non-commercial fornication
The third argument is about the reasons which forced the Parliament of the United Republic of Tanzania to enact a law that permits non-commercial heterosexual coital fornication under the disguise of "presumed marriage." They are not very difficult to rationally excavate.
Specifically, they are closely associated with the natural functions of hetero-affective sexual activities. Some are mentioned in section 160(2) of the Marriage Act (1971), and others are not mentioned. Let us explain them.
The question, "Why do some humans choose to have sex?" is not a question that common people ask and answer very often. But, for purposes related to public policy and legislation, this question must be asked and answered, not only in an academic contexts, but everywhere in the public space.
This question is worthy asking because the answers to it may give solutions to central concerns of sexual ethics, which form a part of public morality.
Responses to the question are many, since some are subjectively determined by individual actors based on purely personal intentions and circumstances. A quick literature perusal suggests that the motives for engaging in sexual intercourse include:
Being attracted to the other person; To experience physical pleasure; To feel good; To show affection to the person; To express love for the person; To release the sexual arousal; To have fun; The realization of love; To achieve an orgasm; The heat of the moment; To please the partner; Turned on by the person’s physical appearance; The desire for emotional closeness (i.e., intimacy); Pure pleasure; Excitement and adventure; The curiosity of the act; To feel connected to the person; and Because of the romantic setting.
Others are the attractive face, leg, bottom eyes, voice or hair of the other person; To keep the partner satisfied; Because the person was a good kisser; A mere opportunity; To intensify one’s relationship; To try out new sexual techniques or positions; To feel loved; Inability to resist the person’s sexiness; To celebrate a birthday, anniversary, or other special occasions; To explore one’s sexual abilities; To improve one’s sexual skills; to make a babe; and to make income.
This list is long and creates problems when one wants to know an answer to the question of what can be a good reason for having sex. But, philosophical biology and philosophical ethics provide us with key analytical tools with which we can narrow down these responses to two classes, one containing few objective answers and the other containing many subjective answers.
To do this, we have to paraphrase the above question with a view of eliminating the ambiguity in the term "why," by clearly revealing its three meanings.
Following Aristotelian thought process on "the nature of things," we fully know something if we know four elements about it, namely: its material cause, formal cause, efficient/etiological cause, and final/teleological cause.
For example, given a "brick" its material cause is sand, cement and water; its formal cause is the rectangular cube used to make bricks from which it derives its shape; its efficient cause is the brick-maker who used the brick-cube, sand, water and cement to bring about the brick; and the final/teleological cause of the brick is the function or work it can be used to perform as originally conceived by the brick-maker, namely building the wall of a hose.
Each of the "efficient/etiological cause" and "the final/teleological cause" provide a unique answer to the "why" question.
On one hand, the "efficient/etiological cause" tells us the historical push behind the "coming to be of a thing."
On the other hand, "the final/teleological cause" tells us the reasons that pulled the mind of the maker to the future as to what use he/she want to put a thing from the time when it was being made.
So, if you are travelling along the highway and you come across a hotel by the side of the road, the question "why is the hotel located here?" will have two answers.
From the efficient cause perspective, "the hotel is located here" because some building engineers designed the drawing, transported bricks, stones, sand, water and other building materials and and constructed the hotel.
And, from the teleological perspective, "the hotel is located here" because some building engineers intended that hungry, thirsty and tired passengers should get drinks, food and shelter when they reach there.
Similarly, the question "Why do some humans choose to have sex?" should be interpreted to mean two questions, namely: "Etiologically speaking, why do some humans choose to have sex?" and "Teleogically speaking, "Why do some humans choose to have sex?"
On one hand, "etiologically speaking," and this simply means speaking from a physiological perspective, some humans choose to have sex because of libido (sex drive). Higher testosterone levels in men are linked to higher male libido, while higher estrogen levels in women are linked to higher female libido.
Those who are younger may have a higher sex drive than older adults. For example, testosterone production increases 10 times in adolescent boys, which explains the increase in arousal or interest in sex at that period in development.
However, middle-aged women may have a higher sex drive than younger women. That is enough about the push factors related to "why" do some persons have sex.
On the other hand, "teleogically speaking," some humans choose to have sex because of the natural outcome it can, does sometimes, cause or bring about in the future.
Such a teleological answer can help us to know when we can have a good reason for having sex. Here, scientific biology, philosophical biology and philosophical ethics teach that human sexual activity is sometimes a "cause," and therefore, entails a natural "significance," of the following natural "effects":
Sexual activity builds emotional intimacy, causes the birth of babes, Improves cardiovascular health, Increases immunity, Reduces stress, Relieves bodily pains, Promotes longevity, Increases blood circulation, promotes better sleep, Improves overall bodily fitness, Increases levels of estrogen, boosts levels of testosterone, Reduces the chances of getting mental depression, Enhances brain function, and many more.
These functions can be narrowed down to three natural functions or purposes: the personally unitive function, the interpersonally unitive function and the inter-generationally unitive function.
The inter-generationally unitive function of sex consists simply in the fact that sexual intercourse is the means by which new humans are brought into being, and the human race is carried on from one generation to another.
It is also called the generative function, the procreative function or the reproductive function. Thus, in this case, sexual intercourse promotes the human good of procreation, also known as the good of reproduction, or the good of genitality.
The interpersonally unitive function of sex derives from the fact that the desire for sexual intercourse forces two persons to communicate, and finally meet at one point in time and space for sex. As a result of sex, the sex bonding chemicals, including the oxytocin hormone, are produced in the partners' bodies.
These hormones cause psycho-chemical bonding between the partners by way of sex-after-glow, which keeps driving the partners to each other after every now and then for more sex rounds.
Gradually, their sexual relations create "regularity" which has an effect of excluding others across space and time (regularity of exclusive sex), just as it creates stability which has an effect of permanence across time (temporal stability). Spatial-temporally exclusive sex breeds permanence as an effect.
This way, they keep expressing and promoting love between each other. Ultimately, they may commune and live together under one roof as husband and wife. Thus, in this case, sexual intercourse promotes the human good of sexual friendship, and specifically the good of marital friendship, or simply the good of marriage.
And the personally unitive function of sex consists simply in the fact that sexual intercourse is the means by which the unity of the body and soul of each of the individuals participating in sex is rehabilitated, re-integrated, re-created.
The dynamics of the sexual response cycle explain the fact of psycho-somatic integration very well. This cycle has four steps: excitement, plateau, orgasm and resolution phases.
Phase one is the excitement phase, in which, for the man, the penis becomes erect due to the flow of blood into the penile tissues and, for the woman, there is moistening of the vagina, enlarged breasts, and tensing of the muscles with increased breathing and heart rate.
Phase two is the plateau phase, where the entry of the penis into the vagina, further quickening of the heart and breathing, mounting erotic pleasure, and the appearance of a flush on both bodies.
Phase three, is the climax, where discharge of semen by the male and a number of orgasmic muscle spasms by the female, is the moment of greatest pleasure and ecstasy, the moment sought in every act of intercourse. This pleasure is, of course, quite individual.
And phase four is the resolution, in which the couple relax and blood pressure and respiration return to normal. A unifying component of these various physical stages of the sexual act is physical pleasure.
Accordingly, the sexual response cycle is a common denominator between between marital sex, extra-marital sex and non-marital sex. Mwalimu Albert Chalamila being a married man knows this cycle from his practical marital experience.
But, there is one more distinction in the meanings of the word "why" that must be exposed. It is about the two meanings of the "final cause", that is the "teleological cause," we discussed before.
Here we have a distinction between the finality of the operation (finis operis) and the finality of the operator (finis operantis), also known as the end of work (natural end) versus the end of the worker (willed end), or the end of the action (natural end) versus the end of the actor (willed end), as often preferred by St. Thomas Aquinas.
Generally, the end of the action is the natural end of an act; for example, the finis operis of bulding is to make a building, and the finis operis of cooking is to cook food. The end of the actor, however, is that to which the agent orders the natural end of the act; for example, the end of the actor related to the building could be to profit from the sale of the building, and the end of the actor related to cooking could be to entertain guests.
So, in many human acts, the end of the actor may or may not coincide with, and it can alter, the end of the action itself. For reasons of objectivity, as opposed to subjectivity, here we are searching for the distinction between the invariable finality of the action and the variable finality of the actor.
In short, then, the following are the finality of the action called coitus, regardless of whether it is marital or non-marital: The telos of intra-personal unity (rehabilitation of psycho-somatic unity); the telos of inter-personal unity also known as inter-personal friendship (relationality); the telos of inter-generational unity also known as inter-generational friendship (reproduction); the telos of residential permanence; and the telos of regularity of coitus.
These five teloses, namely rehabilitation of psycho-somatic unity, relationality, reproduction, residential permanence and regularity of coitus are natural reasons which motivate hetero-affective acts of sexual intercourse.
When they happen in an exclusive and relatively permanent sexual relationship, which is socially sanctioned, they define what is called an ideal community called matrimony or simply a coital society, which is specified by a marital sex act.
The said marital sex act has five attributes. It is rehabilitatively/recreaionally unitive in type (intra-personally unitive in type), relationally unitive in type (inter-personally unitive in type), reproductively unitive in type (inter-generationally unitive in type), recursively unitive in type ( recurrent sex in type), and residentially unitive in type (residential permanence).
From this summary we can speak of the five R's of marital sex, namely: recreativity, relationality, reproduction, recursiveness, and residentiality.
According to semiotic principles, a cause signifies its effect, meaning that a cause entails the significance of its effect. Contracepted coital sex can be a cause, and therefore entails, of rehabilitative significance, relational significance, reproductive significance, recurrent sex significance, and residential exclusivity significance.
Thus, based on philosophical reasons alone, we can rightly conclude, the following anthropological principle obtains: there is a necessary etiological connection between the significances of the 5R's of coital sex, namely, rehabilitative significance, relational significance, reproductive significance, recurrent sex significance, and residential exclusivity significance, where, for reasons related to the integrity and stability of marriage and family life, these significances are morally inseparable. Let us call this "the inseparability thesis."
X. Economic income generation as a reason for sex
Money and sex are bound together in prostitution and the production and sale of sexually explicit materials.
Money is exchanged for sexual images or descriptions contained in films, electronic media, magazines, books, music, and photographs that depict people in explicit or suggestive sexual activities.
Money is also exchanged for sexual services provided by streetwalkers, call girls, escorts, massage parlor workers, and other sex workers.
The sex work industry is a multi-billion dollar enterprise with countless millions of consumers and customers.
As a nation, however, we feel ambivalent about sexually explicit material and prostitution. Some people condemn it as harmful, immoral, and exploitative and wish to censor or eliminate it.
Others see it as a harmless, victimless and even beneficial activity, an erotic diversion, or an aspect of society that cannot or should not be regulated. They believe that censorship and police action do greater harm than good.
But the fact that some humans engage in sex for generating an income, either through sex-for-gift exchange or through sex-for-payment exchange, is legally and socially problematic.
Specifically, adultery, fornication, prostitution are types of transactional sex, where, adultery and fornication are based on the principle of gift-for-sex (GFS) exchange.
Prostitution is a type of transactional sex which is based on the principle of payment-for-sex (PFS) exchange.
Although the line that separates the principle of gift-for-sex (GFS) exchange from the principle of payment-for-sex (PFS) exchange is so narrow, is the only factor that allows us to distinguish presumed marital relations and commercial sex.
That is, the principle of gift-for-sex (GFS) exchange, as opposed to the principle of payment-for-sex (PFS) exchange, is often a gateway to true marriage, hence the legalization of presumed marriages.
This fact puts "hetero-affective fornication" under the disguise of presumed marriage under one category with "hetero-affective prostitution," while the former is legally permitted but the latter is not, hence a paradox. In our opinion, this is why the NBS annual reports, dubbed "Tanzania in Figures," do not mention "prostitution" as a crime.
In fact, according to the NBS report, "Tanzania in Figures (2022)," the figures of social deviance against public morality are overwhelming, even before including sexual deviance. Specifically, in 2022, there were 11,118 offenses against persons, 21,767 offenses related to property, and 21,238 offenses against state security, all totaling 54,123 offenses.
Out of these offenses, only 8,413 were sexual offenses, which is 16% only. As such our RC's and DC's should use 84% of their time dealing with non-sexual offenses and not otherwise. A summary of the statistics is attached below.
Source: Ministry of Finance and Planning (2023), Tanzania in Figures 2022 (Dodoma: National Bureau of Statistics), p.67
From these facts, it follows that our RC's and DC's have a lot of work to do, even in the exclusion of sexual crime called "prostitution."
XI. The need of economic empowerment to sex workers
But if we want to avoid an effect we should avoid its causes. Sex work is an effect which has its underlying causes, some of them being economic and educational deprivation and marginalization.
So this analysis will be of little use if we do not briefly discuss the need of economic empowerment of sex workers. In the legal framework under which sex work is illegal, we only propose to talk about economic rehabilitation programs for key categories of sex workers.
In Dar es Salaam, most of them come from poor families living in ramshackle shanty houses, located in places such as Mbagala, Kinondoni Shamba and Buguruni, to key City Centres.
Sometimes they spend a night standing by the road without meeting even a single customer. Their lives are miserable to the extent that given an alternative lifestyle most of them will abandon this work.
Even though these women may chose to pose nude, to sell their sexual services, or to rent their wombs as surrogate mothers, the abuses and exploitation inherent in these practices suggest that these decisions are hardly one of choice.
That these women choose to be vulnerable to risks such as AIDS, degradation, rape, and health risks associated with coitus, fellatio, surrogate pregnancy and the like proves that many women are desperate, not that they are free to choose.
They need government intervention that will enlarge their freedom of choice in a way that removes them from the sex work sector.
So, economic empowerment programs of sex workers is a need which must be urgently met through government intervention. Hunting them door after door and demolishing their shellers is not a sustainable solution.
However, the needed interventions must be tailored to the types of sex workers available in Tanzania. So, let us conclude this part by briefly looking at the Many Faces of Sex Work. How can this be done? Below we provide a general theory of crime prevention by using positive economic interventions based on what we shall call "The Triangle of Order, Crime and Development."
XI. The Triangle of Order, Crime and Development
Decolonization and the establishment of the United Nations system in the aftermath of the Second World War prompted criminologists and members of the international community to consider the impact of development on crime in what at the time were commonly referred to as ‘third world’, ‘developing’ or ‘least developed’ countries—former colonies unaligned with the capitalist West or the Soviet bloc.
The theoretical claims inherent in much of this early scholarship were derived, at least in part, from the work of sociologist Emile Durkheim who theorized the impact of Modernization on crime in nineteenth-century Europe using the concept of ‘anomie.’
Examining the concept of anomie as it appears in Durkheim’s work is useful for signposting what would later emerge as a foundational theme of ‘mainstream’ twentieth-century thinking about the relationship between economic development and crime: the destabilizing effects of rapid economic and social transitions.
Durkheim identified five dimensions of an anomie. In the first instance, anomie is associated with ‘a lack of adequate regulation’ caused by ‘a rapid transition from an agrarian economy to an industrial economy’ that renders ‘many well-established relationships and rules … obsolete’.
Second, it is linked with ‘the insufficient regulation of human desires’ that emerges as a result of ‘abrupt economic growth … leaving many individuals with insatiable aspirations’ yet ‘unable to satisfy their desires through the means available to them’.
Third, anomie refers to the destabilizing impact of ‘modern economic life’ on family relations, once again compounded by ‘the insufficient regulation of human desires’.
Durkheim’s fourth use of anomie describes ‘excessive imprecision and weakening of the “collective or common consciousness” (conscience collective) of a society’.
Finally, the fifth meaning of anomie involves the erosion of moral solidary as a form of social regulation. These forms of anomie are evident in the early literature on Modernization and crime.
Thus, the American criminologists Marshall Clinard and Daniel Abbott (1973), in their book, "Crime in Developing Countries," which draws upon fieldwork in Uganda, broadly contend that increases in crime in the developing world are a natural result of Modernization.
They argue that nations become more affluent, but at a cost, since, affluence increases inequality and social dislocation due to inadequate job creation, particularly in rural areas, resulting in rapid rural to urban migration and a reduction in the perceived legitimacy of social institutions.
Accordingly, it is an established position that, towns, industrial growth, migration, technical advances and a willingness to take risks are all indicators or reflectors of a country’s level of economic and social growth. They seem to serve equally well as indicators or reflectors of crime.
This is to say that, social deviance is theoretically considered one of the major impediments to economic development because it tends to increase economic uncertainty, discourage long-term investment, limit new employment opportunities and breed low productivity.
Conversely, it is to say that, social conformity is theoretically considered one of the major determinants of economic development because it tends to decrease economic uncertainty, encourage long-term investment, facilitate new employment opportunities and breed high productivity.
In effect, the criminogenic consequences of economic development are as follows: crime reduces safety; disrupts order and creates chaos; Impedes Community Collaboration and Trust as any action that impeded public safety is going to impact the trust present throughout the community; generates Stress as people worry about their safety, the safety of their loved ones, all the time; creates economic burden to society as it requires a huge financial budget to prevent, combat, and clean-up the aftermath of criminal activity.
However, the empirical testing of the Modernization Thesis has produced mixed results. For example, in 1991, Doctor Dick Andzenge, of Western Michigan University, wrote a PhD thesis which is entitled, "Crime and development: A comparative analysis," in order to test this theoretical evidence.
This study tested the hypothesis that "the process of development involves changes from a traditional society to a modern society which are causally related to crime."
On this view, there is a correlation between modernization and criminal social deviance, where indicators of modernization include percentage of Urban Population, Life Expectancy, percentage of Industrial Labor Force, percentage of Agricultural Labor Force, National GDP, and Manufacturing GDP.
Thus, under this hypothesis, the minor hypotheses were: There is a Positive Relationship Between urban population growth and crime; There is a Positive Relationship Between Life Expectancy growth and Crime; There is a Positive Relationship Between Industrialization and Crime; There is a Negative Relationship Between the growth of Agricultural Labor Force percentage and Crime; There is a Positive Relationship Between GDP growth and Crime; and There is a Positive Relationship Between growth of Manufacturing (GDP) growth and Crime.
According to the above hypothesis changes in urbanization, industrialization, longevity or increased life expectancy, increased manufacturing and gross domestic products, would be expected to alter social stability by reducing social conformity and promoting social deviance, and therefore increased sins and crimes.
The study used longitudinal data collected over a 25-year period from 54 countries. A sample of these data represented 34 countries from 6 regions of the world. The regions were Western Europe and North America, Asia, Middle East, Sub-Saharan Africa, Latin America, and Scandinavia. The sample was analyzed to test the above hypotheses in general and with a specific focus on the crimes of theft, homicide and fraud.
The analysis of the data using the Pearson correlation coefficients showed no consistent relationship between the independent variables (indicators of development) and either specific crimes or crime in general.
That is, the study found that though there appears to be a strong correlation between the rate of development and the rate of crime growth, this relationship is not consistent throughout the regions and countries studied.
The conclusions from the study are that though there appears to be a correlation between development and crime this relationship seems to differ from one region to another. This suggests that some cultural and regional factors may contribute to the relationship, as mediating variables. The fact that there is actually a negative relationship between the two in other regions also means that development can actually help in reducing the incidence and rates of crime.
Crime, Poverty, and Pro-poor growth (PPG) polices
Gary Becker (1968), in his work, “Crime and Punishment: An Economic Approach,” is the first author to use economics to address the questions of crime and law enforcement. To Becker, crime generates costs to society, but fighting crime is also costly.
There is, therefore, an optimal amount of crime which minimizes society’s total loss and which can be attained by setting the optimal levels of punishment and probability of apprehension and conviction.
From that analysis, Becker further claims that the role of criminal law and law enforcement policies should be limited to the minimization of society’s loss. Crime is, therefore, framed as an external effect, and criminal law’s purpose is redefined as the activity of assessing the harm incurred by crime in order to enforce optimal compensation.
Since Becker (1968), crime has been viewed as a rational choice. It is the outcome of rational individuals weighing costs and benefits of legal and illegal forms of conduct, the cost of participating in criminal opportunities is outweighed by the benefits thereof, and the cost of participating in non-criminal opportunities is outweighed by the benefits thereof.
For example, it is believed that, if individuals have an opportunity to access improved labor markets, then, legal economic activities should substitute for illegal economic activities. This is an economic model of crime. Let me explain.
A common understanding of crime is that the population can be divided neatly into two groups: good guys and bad guys. On this view, the bad guys are social deviants, who commit crimes unless they are incapacitated; and the good guys are social comformists, who are reliably law abiding.
But also, we know that, every human action, including moral, immoral, criminal and non-criminal actions, are based on human rational choice over the goals, the methods to realize those goals, and the context of implementing the methods. Thus, crime is a rational choice.
For these reasons, the economic model of crime shifts the focus from character to the choices available to individuals. While certain aspects of character, or what economists call ‘preferences,’ are surely not irrelevant, criminal activity represents a choice or set of choices that is available to everyone.
That is, the choice of whether to commit crime is driven by the consequences, which differ among individuals depending on the opportunities available to them. For example, a school dropout will have relatively poor opportunities to earn a legitimate living, but lack of schooling is no barrier to larceny or robbery. For that reason alone, we expect dropouts to be over-represented among active criminals.
This perspective leads naturally to a presumption that deterrence works – that crime rates will be inversely related to the likelihood and severity of punishment. But the economic model also incorporates the idea that programs to improve legitimate life opportunities may have a deterrent effect through increasing the opportunity cost of time spent in criminal activity or prison.
People with something to lose are less likely to view criminal participation as attractive, and crime reduction can therefore be achieved by influencing the life opportunities of potential offenders.
For example, some recent studies have shown that education has a large crime-reducing effect on cohorts of individuals that were forced to stay longer at school because of changes in minimum school leaving age legislation.
The economic focus on choices and consequences does not preclude the possibility that character is also important in influencing criminal involvement. Efforts to rehabilitate criminals may focus on either increasing the quality of legitimate opportunities (typically by improving human capital or clearing away barriers to earning a legitimate living) or changing cognitive processes and capacities, such as self-control, empathy and rationalization.
While there have been myriad evaluations of specific programs intended to reduce rates of recidivism, there still remains considerable uncertainty about the overall effect of a spell of imprisonment on subsequent behavior.
Then, the real problem is how to make economic growth more equitable, which is helpful to reduce poverty and crime rates, and make the growth more pro-poor. Some studies have interlinked poverty–crime nexus under PPG.
An example is: M.K. Anser, Z. Yousaf, A.A. Nassani, and others, in their article, “Dynamic linkages between poverty, inequality, crime, and social expenditures in a panel of 16 countries: two-step GMM estimates,” as published in the Journal of Economic Structures in 2020, as article number 43 in Volume 9.
This research queries the dilemma of growth-poverty mismatch in developing nations by investigating and presenting empirical evidence. Increasing economic growth has received extensive discourse in research and government following its perceived inherent potential to alleviate poverty and improve populations’ wellbeing.
An increase in economic growth is normally considered good news, especially for the country’s poor, while vice versa is true. Nevertheless, in recent years, it has been observed that economic growth, especially in developing countries does not elicit a corresponding poverty reduction. Such a growth-poverty mismatch between growth and poverty is generally referred to as a growth-poverty dilemma.
Thus, the study evaluated different United Nation sustainable development goals (SDGs), i.e., goals 1 and 2 (poverty reduction and hunger), goals 3 and 4 (promotion of health and education), goal 10 (reduced inequalities), and goal 16 (reduction of violence, peace and justice) to access pro-poor growth and crime reduction in a panel of 16 heterogeneous countries.
Specifically, this study examined the relationship between growth–inequality–poverty (GIP) triangle and crime rate under the premises of pro-poor growth scenario in a panel of 16 diversified countries, over a period of 1990–2014.
It explored the impact of GIP triangle and crime rates on pro-growth and PPG policies, which is imperative for sustainable development across countries. The study added social expenditures in PPG dynamics to promote healthy and wealthy economic activities, which improves quality of life of the poor and helpful to reduce crime incidence across countries.
So, based on the interconnections between crime, poverty, and PPG, this study formulated the following research questions:
- Does crime rate negatively influence growth-inequality-poverty (GIP) triangle, which sabotages the process of PPG?
- To what extent social spending on education, health, and labor market are helpful to reduce crime rate, poverty, and income inequality across countries?
- Does crime and poverty exhibit a parabola relationship between them?
Findings
where GDPPC indicates per capita GDP, GDPPC2 indicates square of per capita GDP, GINI indicates Gini coefficient—income inequality, EDUEXP indicates education expenditures, HEXP indicates health expenditures, POVHCR indicates poverty headcount ratio, TOP indicates trade openness, UNEMP indicates unemployment, and CRIME indicates crime rate.
Recommendation
The study proposed the following seven policy recommendations, i.e.,
- Education, health and wealth are the strong predictors of reducing crime rates and achieving PPG, thus it should be aligned with inclusive trade policies to reduce human cost in terms of decreasing chronic poverty and violence/crime.
- The policies should be formulated to strengthen the pro-poorness of social expenditures that would be helpful to reduce an overwhelming impact of crime rate in a panel of countries.
- GIP triangle is mostly viewed as a pro-poor package to reduce the vicious cycle of poverty; however, there is a strong need to include some other social factors including unemployment, violence, crime, etc., which is mostly charged due to increase in poverty and unequal distribution of income across the globe. The policies should devise to observe the positive change in lessen the crime rate by PPG reforms in a panel of selected countries.
- The significant implication of the Kuznets’ work should be extended to the some other unexplored factors especially for crime rate that would be traced out by the pro-poor agenda and pro-growth reforms.
- There is a need to align the positivity of judicious income distribution with the broad-based economic growth that would be helpful to reduce poverty and crime rate across countries.
- The result although not supported the ‘parabola’ relationship between income and crime rates; however, it confirmed the U-shaped relationship between income and poverty. The economic implication is that income is not the sole contributor to increase crime rates while poverty exacerbates violent crimes across countries. There is a high need to develop a mechanism through which poverty incidence can be reduced, which would ultimately lead to decreased crime rates. The improvement in the labor market structure, judicious income distribution, and providing social safety nets are the desirable strategies to reduce crime rates and poverty incidence across countries, and
- The results supported parabola relationship between economic growth and inequality, which gives a clear indication to improve income distribution channel for reducing poverty and crime rates at global scale.
XIII. The typology of sex traders under direct sex traders category
Sex work, or prostitution, is the provision of sexual services for money or its equivalent. Sex workers may be male, female, or transgendered, and the boundaries of sex work are vague, ranging from erotic displays without physical contact with the client, through to high risk unprotected sexual intercourse with numerous clients.The following is a list of different types of sex workers based on the venue used for providing sexual service, first showing direct sex workers.
- Call girl/Private sex worker: Works out of her own residence, making appointments with clients by a landline, cell phone, or online. She is often from a middleclass background and may be a college graduate. She dresses expensively and lives in an upscale neighborhood. A call girl may have a number of regular customers and may accept new clients only on referral. Because she makes dates by telephone or Internet, she can exercise close control over whom she sees and over her schedule.
- Street walker: In most communities, the most visible sex worker is the streetwalker. She sells her wares on the streets of cities. She is generally less fashionably dressed than the call girl. Clients are solicited on the street, park or other public places. Serviced in side streets, vehicles, or short stay premises.
- Brothel sex worker: Premises explicitly dedicated to providing sex. Better security than street. Often licensed by authorities in some countries.
- Escort sex worker: Client contacts sex worker by phone or via hotel staff. Most covert form of sex work. Relatively expensive because of low client turnover. Service provided at client’s home or hotel room.
- Window or doorway sex worker: Brothels with sex workers on public display. Windows preferred in cold climates, doorways in warmer places.
- Strip club sex worker: A strip club provides sexualized entertainment such as erotic dances, but not necessarily sex with a customer. Like massage parlors, strip clubs exist along a continuum, from very elegant “gentlemen’s clubs” employing attractive, articulate young women who provide companionship and female attention in exchange for tips, to “dive” bars where women engage in (almost) nude dance routines and lap dances. Each club attracts a particular race, class, and gender of workers and clients.
- Club, pub, bar, karaoke bar, dance hall sex worker: Clients solicited in alcohol vending venues and serviced on site or elsewhere.
- Other all-male venues sex worker: Clients solicited in all-male venues such as barbershops, bathhouses, saunas, and mining camps. Serviced on site or elsewhere.
- Door knock or hotel sex worker: Unattached males are approached in their hotel rooms or boarding houses.
- Transport (ship, truck, train) sex worker: Sex workers may board vehicles to service the crew or passengers or pick up clients at stations and terminals.
- Surrogate mothers: Surrogacy involves a contract in which a woman agrees to carry a child for another person to whom she will relinquish the child when it is born.
The word 'surrogate' literally means 'substitute' or 'replacement'. A 'surrogate mother' is therefore a 'substitute mother': she is a woman who, for financial and/or compassionate reasons, agrees to bear a child for another woman who is incapable or, less often, unwilling to do so herself. In other words, she is a substitute or 'tentative' mother in that she conceives, gestates and delivers a baby on behalf of another woman who is subsequently to be seen as the 'real' (social and legal) mother of the child. The most common kind of surrogacy is where a woman's egg, either through artificial insemination or, less often, natural intercourse, is fertilized by the sperm of the male partner of the couple desiring a child (the commissioning father). Here the surrogate is the genetic mother of the child that she promises to give up, while the role of social and legal mother is taken over by another woman (the commissioning mother). To denote the genetic link between the surrogate and the child she bears, we shall call this type of surrogacy 'genetic surrogacy', although it is more often referred to as 'partial surrogacy'. It is also possible, if the commissioning father is infertile or wishes not to pass on a defective gene, to fertilize the surrogate's egg with the sperm of a donor or with that of her husband, which is referred to as 'total surrogacy'. Another form of surrogacy utilizes the process of in vitro fertilizations where the egg and semen are obtained from the commissioning couple (or from anonymous donors), the resultant embryo subsequently being implanted into the surrogate or carrying mother. We shall refer to this as 'gestatory surrogacy', since the surrogate only performs the function of gestation for the commissioning couple, without having a genetic link with the child. This type of surrogacy is sometimes called 'full surrogacy'. So surrogate mothers are prostitutes who use their wombs and/or ovaries to perform reproductive labor for economic gain. - Surrogate fathers: In the practice of artificial insemination the donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived. While it appears rather obvious that this provision is crafted in order to protect anonymous sperm donors from all legal responsibility for those children fathered as a consequence of their donations of semen, if the provision is adopted fully this language establishes a difficulty for the real father under a surrogate contract to establish either paternity or to assert parental rights, such as visitation. In this case, the real father remains an anonymous father, who is for this reason akin to a surrogate mother. Thus, we can properly speak of a substituted father, hence a surrogate father, who uses his sperms to provide reproductive service in return for payment. This is another form of prostitution.
- Sex tourism camp sex worker: An increasingly important type of commercial sex is sex tourism, which refers to leisure travel that has as its purpose the purchase of sexual services or engaging in unpaid casual sex. Sex tourism is made possible by three large-scale social forces: the migration of men and women from less developed nations, or from rural to urban areas, in search of jobs; the commodification of sexual intimacy, making all types of sex a commodity or service for sale; and increased travel for recreational purposes. All three of these forces are tied to increasing globalization, the movement of information and people freely across national boundaries. The migration of people in search of economic opportunities provides a large group of young people in search of work. In some locales they are aggressively recruited into sex work by pimps or people with ties to sex trafficking. In other places, they enter into the life more or less voluntarily, often because there are few other opportunities for persons of their ethnic background. The migration of people in search of economic opportunities provides a large group of young people in search of work. In some locales they are aggressively recruited into sex work by pimps or people with ties to sex trafficking. In other places, they enter into the life more or less voluntarily, often because there are few other opportunities for persons of their ethnic background. Unfortunately, one such appeal for men is sex with a young girl, and in some cities girls as young as 12 and 13 are available in brothels tightly controlled by their managers.
XIV. The typology of sex traders under indirect sex traders category
Apart from direct sex workers discussed above, we have Indirect sex workers too. Their types follow below:- Cohabitants: The cohabiting couple involves persons in long term heterosexual relationships where a man and a woman live together, without being legally married, solely based on meeting the needs related to economic security which is provided in exchange for sex. Cohabitation is more popular among poor women because marriage seems to represent a wealthy status symbol, and the housewife stigma associated with marriage troubles some career women who prefer not to marry to protect their economic freedom. So, women of lower socioeconomic status and working women are the main proponents behind cohabitation’s popularity. In the former case, the sex worker seems to be a woman while in the latter case the sex worker seems to be a man. Cohabitants tend to reject traditional gender roles while embracing the ideals of individualism, personal autonomy, and equity in each partner’s contribution to the household. Those who choose to cohabit are generally more liberal, less religious, and more supportive of both egalitarian gender roles and nontraditional family roles. However, in some cases, cohabitation is the most common path to initiating family life.
- Concubines: This is a state of cohabitation without the full sanctions of legal marriage, which is often a form of slavery in which women may be bought and sold. Their status and the legal status of their children is lower than that of the legal wife. Concubines may be bought from brothels or abducted or enticed from foreign countries. Although the historical justification for concubines was to ensure offspring, in practice most concubines were and are acquired for sexual pleasure in return for survival security. Concubinage is particularly the prerogative of the rich.
- Massage parlour: Premises ostensibly dedicated to providing massage, but a range of sexual services may be provided. In South East Asia similar arrangements may apply in barbershops.
- Travelling entertainers: Actors, dancers and others involved in entertainment may also provide sexual services.
- Beer girls: Young women hired by major companies to promote and sell products in bars and clubs. Sexual services sold to supplement income.
- Street vendors and traders: Ostensibly marketing rural produce or other goods but supplementing income with sexual services.
- Swingers clubs: Some swingers or couples sex clubs employ (undisclosed)sex workers if there is a shortage of female guests.
- Beachboys, bumsters, and gigolos: Men and boys engaged by women ostensibly for social purposes but sex is often involved. Some beach boys are under aged and many also service male clients.
- Survival sex workers: A matter of degree, where starvation or other serious deprivation is imminent, particularly for dependents. Food or security maybe the currency, rather than money. Many needy single mothers fall under this category.
XV. The typology of sex traders under the three-tier sex trade pyramid
Depending on the cash retention ability, sex trade can be classified into a three tier system as follows: poverty sex trader, tourism sex trader and high-class sex trader.
Poverty sex traders: Poverty sex traders are casual sex workers whose interaction with their customers entail a master-servant relationship. Here, a sex trader ventures into sex trade as a way to earn money so as to fulfill socio-cultural obligations, and probably as a means to eventually achieve a better lifestyle.
In some cases, sex traders in this category work under pimps or are attached to, that is employed by, brothels. The attachment to a second party reduces sex worker’s monetary-retention capacity.
In addition, they enjoy less freedom relative to their counterparts in the other two sex trade classes. Most of the sex traders operating within this bottom tier of the three-tier sex trade pyramid can be categorized as street-based sex traders.
They serve all those who are interested and willing to pay for their sexual services. This group thus serves an exclusively domestic clientele. As a rule the majority of sex traders in any particular region, country or tourism destination operate within the poverty sex trade tier, the bottom end of the three-tier sex trade pyramid.
Tourism sex traders: Tourism sex traders are casual sex workers who serve both domestic and international tourists. In some cases, these sex traders are attached to a nightclub, a discotheque or a bar. The client has to pay a certain amount of money to the hosting club for the sex trader to be released.
In other instances, these sex traders are independent. They carry out their sex businesses in the areas frequented by tourists, both local and foreign. In fact, tourists are the principal target market for sexual services in this category of sex trade.
In general, commercial sex services in this tier are packaged and sold as part of the tourist product. Customers thus choose to seek sexual gratification as part of the tourist experience. Cash retention levels for sex traders in this tier are higher than those of sex traders in the poverty sex trade tier. This fluid zone separates poverty sex trade from high class sex trade in the three-tier sex pyramid. It is the sex trade buffer zone.
High sex traders: High sex traders are sex traders who serve local elites and international tourists. The sex trader-client relationship is dominated by sex-finance exchange. Sex traders’ money-retention potential is enhanced by the fact that the sex traders work independently, as they are not attached to pimps or brothels.
Sex traders in this category are commonly from the middle or upper class families in their societies, who may earn a multiple of what they earn as secretaries, teachers or executives. For them, being in the sex trade is more of a consumerism issue than the need for survival.
XVI. Stock-taking: What is wrong with sex trade as long as it involves a valid oral contract between traders and their customers?
It is said that, in a society which cherishes the value liberty, social phenomena are, like individuals, innocent until when proven guilty, and so is prostitution, adultery, fornication, incest, cohabitation, hetero-affective marriage, and many more.
In the past two centuries, in particular, there has been a continuing debate about the nature of prostitution, its causes, moral status, and the prospects of ridding society of it because it has been widely considered, albeit for many different reasons, to be a social evil.
The central, if not the sole means of continuing attempts to suppress, or at least regulate, the practice of prostitution has been legal coercion.
However, such attempts have had limited and transitory success at best, and the advantages and disadvantages of criminalization or legal restriction of prostitution are still very much an open question.
Against this background, let us now discuss the question: What is wrong with sex trade as long as it involves a valid oral contract between traders and their customers?
1. Abstract summary
All of us, with the exception of the young, the wealthy and the unemployed, take money in exchange for the use of our bodies. Footballers, professors, factory workers, lawyers, opera singers, prostitutes, doctors, legislators and others, all do things with parts of their bodies, for which they receive a wage in return.
Some people get good wages and some do not; some have a relatively high degree of control over their working conditions and some have little control; some have many employment options and some have very few. And some are socially stigmatized and some are not.
In short, sex trade has many similarities with other activities entailing bodily service just as it differs from these other activities in several dimensions.
These dimensions include: (1) Danger and Injury, (2) Coercion, (3) Control and Personal Power, (4) Objectification /Alienation, (5) Economic Exploitation; 6. Personal time for Workers as opposed to work time, and (7) Social Stigma.
We can explain and understand the similarities and differences between different works in terms of key questions and their answers with respect to these dimensions, as we do below.
Danger and injury: How much danger do these women face in the course of work? Is physical danger endemic to the job? Is the work a source of disease, physical abuse, injury or other crime or violence? Does the service provider hate some customers because the service provider has been physically or psychologically abused by the customers?
Coercion: Do workers choose the work freely, in the absence of physical force or other forceful social circumstances against their will? Are workers more likely to be women who are disadvantaged by poverty and racism, who have no other economic options? Do workers come from underprivileged backgrounds, with little opportunity for anything else?
Control and personal power: Do workers have control over their general work environment? Do they have to give up a part of their income to their assistants? Do they have personal control over their work conditions? Do they have control over their free time? Do they have control over their clients?
Objectification/Alienation: Do workers see and feel that their work portrays them as free persons? Do workers see and feel that they are alienated and/or dehumanized in their labor because of being treated as objects without intelligence, volition and emotions?
Economic exploitation: Are workers paid at a rate that allows subsistence, considering that all workers under capitalism are exploited, and paid for their labor power at a fraction of its value? Do workers feel they are paid well?
Demarcation between private life versus work life: Does the work provide an opportunity to workers to attend private life as opposed to work life, by allowing them to divide available time between work-time and private-time?
Stigma: Is there social stigma against workers? How and to what extent does it impact the workers?
But, in general, the biggest difference between prostitution and other works consists in the fact that it is, today, more widely stigmatized.
The stigma comes from a moral judgement: historically, prostitution has been seen as immoral because hetero-affective pre-marital and extra-marital sexual acts have been viewed as immoral.
Against this background, this part of the essay assesses the moral arguments presented in the contemporary debate on the legalization of sex trade.
The first part analyzes the decriminalization argument that seeks to defend legal regulation of sex trade as the best alternative to face the problems that this activity entails.
The second part discusses the abolitionist argument whose purpose is to support an eradication policy since this practice rests on a gender injustice.
Finally, the need to consider both moral arguments and empirical data is discussed for determining the best public policy option for the treatment of prostitution.
2. Framing the issue
As a social phenomenon, sex trade has motivated a diversity of sociological, moral and legal reflections. Today it is possible to recognize a wide variety of positions on the legality of sex trade. These positions have been organized based on the different ways in which it is possible to value the role of prostituted women.
In this way, the vision that considers the sex trader as someone who carries out a criminal activity that violates morality and good customs has been displaced by new perspectives, such as those that conceive of sex trade as a job similar to any other, and others who consider it a practice that perpetuates sexual violence against women.
To delve deeper into this discussion, in this part we will analyze the arguments presented by two antagonistic perspectives, namely, the one that aims to regulate and legalize sex trade, as well as the one that aims to abolish it.
Although in principle this seems like a debate between only two ways of approaching it (legalize versus abolish), in the contemporary discussion we shall distinguish four positions that translate into four different public policy option with their respective moral foundations.
It should be noted that the particular understanding one has of sex trade will determine both the type of policy that one intends to carry out, and the type of moral argument that one offers in its defense.
In this way, the nature of the arguments will be strictly determined by the fact of conceiving this activity as one of a labor nature, or as a form of naturalization of gender violence.
Thus, first, we shall analyze those positions that see regulation and legalization as the best alternative to confront the problems that the practice of sex trade entails.
The central thesis of this position is the recognition of a contractual relationship in the practice of prostitution, a relationship that must be legalized with a view to promoting the well-being of those women who practice it.
Second, we will review the abolitionist position that aims to eradicate the practice of sex trade under the argument that it would be based on gender injustice. For this vision, sex trade would embody the legitimization of sexual violence against women.
To achieve the latter, we will review not only the criticisms against contractualist arguments that equate the practice of sex trade to other jobs, but we will also assess the strength of consequentialist arguments.
Finally, we will discuss the need to consider both moral arguments and empirical data with the aim of determining the policy that brings the least harm to those who exercise it.
3. The legalization of prostitution
In this part we will analyze the arguments that seek to justify the legalization of prostitution. The basis of this position is determined by the belief that when a woman exchanges sex for money from a male customer, the parties to that contract make a free and autonomous decision.
At the same time, this position recognizes that one's bodily sexual activity can be considered a consumer good. By virtue of the above, the defenders of this position maintain that there should be legal recognition of sex trade, recognition that allows sexual contract to be carried out under conditions that ensure certain sexual labor rights for those who carry out the activity.
3.1. The contractual arguments
One of the main arguments for the legalization of sex trade refers to the value of freedom and sexual autonomy of women who give their consent in the exercise of sex trade.
For the defenders of this position, women's freedom would be seen as nothing if we tried to limit or prohibit this activity, as proposed by prohibitionist and abolitionist positions.
Preventing sex trade would not only limit the sexual autonomy of those who offer their services, but also of those who want to hire them, since the parties would not be allowed to enter into mutually advantageous sexual agreements.
According to the above, what is at stake in sex trade would not be the permanent alienation or sale of sexual capacities, but rather the exchange of legitimate sexual labor for economic benefits, just as labor power is exchanged for remuneration in any another employment relationship.
In this same sense, an understanding of sex trade as an employment relationship would favor the sexual autonomy of workers to the extent that it would allow them to retain the right to withdraw from their employment contracts at any time.
The previous defense of sex trade as a work activity rests on a contractualist position which is premised on such concepts as property, labor, contractual consent, freedom and commodity.
There is a longstanding tradition within liberal political thought regarding the relationship between the body, property, labor and commodity.
The concept of "commodity" provides a cornerstone of modern market economy, and sex trade specifically. The word "commodity" is often defined as a product or service that bears use-value to be sold and bought in the market.
On this view, commodification is the process by which things may be brought to be interchangeable on a market, where, the commodity, in being so interchangeable, transcends its use value and becomes exchangeable.
Some economic philosophers draw a distinction between "genuine commodities" and "fictitious commodities."
While the former are conceived as “objects, that is goods and services, which are produced by humans for sale on the market, the latter are not produced by humans for market sale.
Based on this taxonomy, the commodity description of labor, land, and money are defined as fictitious because the state and society have to continuously, and actively, shape, create, and regulate social institutions in order for markets in these commodities to exist at all.
That is, a specific conception of property rights must be enforced by the state for a market in property to exist; the development of an industrial wage-based economy necessitates legal and cultural changes to complete the transformation from how labor is conceptualized and regulated in society; and the state continually makes decisions to create and regulate the supply of money.
The distinction between genuine commodity and fictitious commodity reminds us that it is only through the active intervention of society and the state that markets of certain properties, goods and services exists.
Here, beyond the inanimate objects which are exchanged in non-sex trade, in sex trade we are concerned with human beings and their intimate sexual practices.
We can define intimacy as a wider ange of practices involving‘ ‘being close’’, whether emotionally, physically, or romantically.
When considering the commodification of the intimate instead of the inanimate, several problems emerge. Human beings are not produced, nor are they usually bought, shipped, and sold as completed products.
Therefore, the notion of‘ ‘fictitious commodities’’ is important for understanding how people and their previously existing forms of social relations become converted into labor.
In this case, the philosopher John Locke provided us with a dictum which is very useful, namely the claim that: “Every man has a property in his own person. This nobody has any right to but himself. The labor of his body, and the work of his hands, we many say, are properly his”.
This dictum allows for the commodification of a person’s bodily capacity to labor.
However, this liberal concept of the body as personal property leaves open certain questions about what bodily services can, and cannot, properly be commodified and contractually exchanged across a market.
For example, it is asked: do the bodily sexual organs and capacities constitute property in the person such that it is possible to detach them from personhood without causing moral harm to the person involved or or the sex trade contract violate the woman's natural right to dignity?
Based on this notion particular aspects of human beings may become fictitious commodities, such as their sexual work, but this process of commodification does not often apply to the whole person. Specifically, while the body may undergo conversion into commercial sex labor, the intellect and emotions may be kept some what insulated from this process.
Questions then arise of the boundary and potential dissonance between those parts of the self being continuously converted into fictitious commodity forms and those parts that are not.
But the phenomenon of body-self dualism is not exclusive to sex trade. It is a prevalent phenomenon in daily life. Intoxicants induce body-self dualism in the drinker who then walks staggering; anesthetic injections induce body-self dualism in the patient who loses control over her body; sex partners in an intense orgasmic state experience body-self dualism known as epileptic sexual orgasm; every tiresome manual work such as hoe-farming causes body-self dualism in the actor; a receptionist who, as a matter of professional requirement, smiles at a visitor who she hates experiences body-self dualism, and so on.
Against such an understanding, the contractualist argument suggests that a person’s labor, whether sexual, emotional, mental, or manual, is like all life processes and bodily functions, an inalienable property of the human individual, since it cannot be separated from the person of the laborer.
Because it cannot be separated from the person of the laborer, it is not labor that is exchanged, sold or surrendered across a market, they argue.
Instead, what workers sell, and what employers buy is not an agreed amount of labor, but the power to labor over an agreed period of time, they say.
Since property in the person cannot be separated from the person, the wage labor contract actually involves a transfer of powers of command over the person.
In exchange for x amount of money, the employer gets the right to direct the worker to perform particular tasks, or to think about particular problems, or provide particular forms of service to customers, it is argued.
Likewise, sex or sexual labor is not exchanged in the sex trade contract. Rather, the client parts with money and/or other material benefits in order to secure powers over the sex trader’s person that he could not otherwise exercise.
A male client pays a female sex trader in order that he may direct her to make body orifices available to him, to smile, dance, or dress up for him, to whip, spank, urinate upon, massage, or masturbate him, to submit to being urinated upon, shackled, or beaten by him, or otherwise act to meet his desires.
The point here is that, it is not that the prostitution contract allows the client to buy the person of the prostitute while the employment contract merely allows the employer to buy the worker’s fully alienable labor power.
Instead, both types of contract transfer powers of command from seller to buyer (the extent of those powers and the terms of the transfer being the subject of the contract), and so require the seller to temporarily surrender or suspend aspects of her will.
These liberal theorists generally regard the invasion of an individual’s will to be a heinous violation of fundamental human rights, and take a dim view of pre-capitalist and traditional social formations within which dominant groups exercised personalistic power to force their subordinates to do their bidding.
But because market relations are imagined to involve the exercise of power over commodities rather than persons, and because employers do not usually use personalistic power to force workers to surrender their bodily “property,” the wage labor contract can be understood as an equivalent, mutual, and voluntary exchange.
Money, the universal medium for the expression of the exchange values of commodities, is exchanged for the commodity of labor power.
In capitalist liberal democracies, formal rights of equal participation in the process of commodity exchange are interpreted as a form of freedom for capitalist and worker alike, even though it is through this very process of exchange that the political and economic dominance of the capitalist class is maintained and reproduced.
The beauty of the concept of property in the person, then, is that it conceals the relations of power and dependence that exist between those who pay others to do their will, and those who get paid to surrender their own will and do someone else’s bidding.
On this view of commodified sex based on contractual consent related to the willingness to sell one's sexual labor, questions about whether or not sex can be commercialized in the same way as labor are the wrong questions to ask, since their answers are obvious.
Proponents of this perspective argue that a society's opposition to the sex trade is based on our outdated attitudes toward sexuality in general.
Likewise, another point on which the contractual argument is based is the consideration of human sexuality as a need whose satisfaction is as important as food or shelter.
The objective of the defenders of this position is the recognition of a contract between the person who provides sexual services and the person who requests them, which implies the eradication of any law that seeks to criminalize the said exchange.
In this sense, it is worth noting that contractualists advocate a reform to the current state of the practice of sex trade. The exchange of sex for money should be reformed in order to build a model of healthy prostitution, which in the first place would imply leaving aside our puritan cultural legacy, they say.
For example, according to one line of thinking, a sound sex trade should have at least the following characteristics: (i) decriminalization of the practice and, therefore, delivery of labor rights to the prostitute, (ii) elimination of child prostitution, (iii) free choice of activity, (iv) equal availability for both sexes and (v) development in a social environment free of stigma and prejudice.
Under this conception of healthy sex trade, a person's right to sell sexual services should be recognized just as people sell other types of services categorized as jobs.
The above would imply the elimination of the substantive differences between prostitution and other types of work activity since these differences would be based on hypocritical moral considerations that we adopt regarding it.
Such considerations would be especially relevant to the extent that they influence the harm and dangers to which prostitutes are subjected. In this sense, it is worthy making a brief reference to the paternalistic objection and the response offered.
For some thinkers paternalism would correspond to interference in the freedom of action of a person that is only justified by reasons referring to their well-being and happiness, or by the interests and values of the person who is coerced.
In this sense, those who advocate the abolition of prostitution consider that its rejection is linked to its imminent and substantive risks, risks that would go against the well-being and interests of the prostitute.
For all of the above, state intervention, also known as legal paternalism or government moralism, would be justified with the objective of preserving public morality.
In relation to this point, some thinkers maintain that the specific risks that a person who practices sex trade would face, and which require government intervention, are four: (i) venereal diseases, (ii) violent, humiliating and unpleasant behavior of clients, (iii) ) exploitation by madams or pimps and (iv) the extremely low social status of prostitutes which makes them objects of contempt and leads to ostracism.
These harms and risks to which prostitutes would be subjected are usually associated with the reasons why society should try to prevent them from engaging in the sex trade.
However, for other thinkers who defend a liberal-contractual position, these dangers and damages are not sufficient reason to consider sex trade to be a negative activity that should be prohibited.
Among other reasons, these thinkers maintain that these same risks and dangers are produced by the negative attitude that society has towards sex trade, such as the moral condemnation that establishes that it constitutes a case of sexual immorality due to our evaluative inheritance.
The previous point would be demonstrated by the fact that there are a significant number of professions in which workers face imminent dangers, but these dangers are tolerated and, therefore, their activities are not considered undesirable.
For example, in those jobs in which people are exposed to toxic or explosive substances, the provisions taken are protective with respect to the factors of the work environment that make them risky, and not a paternalistic attitude towards the agent who decides voluntarily access said work.
Then, the conclusion reached by abolitionists is that a paternalistic attitude towards prostitution is nothing more than a reflection of our conservative morality, which ends up harming those who carry out prostitution.
In this way, it would be clear that these dangers are not sufficient reasons to prohibit it, but rather they should be taken into consideration precisely as reasons to try to disabuse society and eliminate the prejudices it has against prostitution and, in this way, change not only the legislation, but the social conditions in which this practice is based.
3.2. About the stigma around sex work
An idea similar to the one presented in the previous point is the one put forward by the argument offered in favor of the legalization of sex trade, namely the belief that sex trade is similar to any other work.
Thinkers in this class emphasize that the position we traditionally have of rejecting sex trade is based on prejudices that stigmatize both sex traders and sexual activity itself.
They question whether the sale of sexual services really harms women and, therefore, whether we are really dealing with a harmful practice or just an activity that could be assimilated to other labor practices.
If the latter were the case, the situation in which sex traders find themselves would be the result of the fact that their work enjoys a bad reputation as a result of different social conventions that we have around the body-sexuality relationship.
For them, all people earn money from the use of our bodies through the different activities we do. In this way, soccer players, factory workers, lawyers, philosophy professors, obtain benefits thanks to the use of their bodies.
However, others believe that, those who earn money through sexual services tend to be stigmatized and judged from a different perspective than those who use their bodies to work for other purposes.
Yet some abolitionists argue that this difference is not legitimate and that it comes from the stigmatization of said activity. The question then is whether this stigma is justified; and if the answer is negative, then we would have no reason to delegitimize the work that sex workers do.
Some abolitionists argue that the problems associated with sex trade are found in many other types of jobs and social practices and, furthermore, they are not inherent to sex work.
These problems usually depend on the unstable and typical conditions in which a prostitute finds herself and, together with the above, come from the differential treatment they receive as a result of the stigmatization in which they are immersed.
To justify that the problem we have with sex trade is its stigmatization, they compare it with other jobs that are similar to it, and with which it would have no substantive differences.
For them, abuses must be addressed through mechanisms that improve the condition of workers in general, and not through discriminatory policies against sex trade in particular.
From the previous perspective, the real problem of sex trade would be the absence of job opportunities and the low control over the employment conditions that poor women have. For these women, sex trade would become the only alternative to challenge the economic situation in which they find themselves.
The above would be problematic since this lack could leave them under the domination of clandestine human trafficking organizations, whose existence rests on the illegality of prostitution itself.
In this sense, the abolitionists' proposal considers that the feminist struggle should promote the expansion of labor possibilities through education, skills training and job creation, along with a recognition of sexual labor itself, all of which above in order for labor rights to be recognized that allow you to carry out said practice in the safest way possible.
Based on the above, those who defend this position maintain that it is sufficiently clear that there are no grounds to conclude that sex trade should be prohibited and, therefore, this activity should be considered equally legitimate as other labor practices and relationships.
In any case, and as we argued previously, the thinkers that advocate the legalization of sex trade do not agree with the way in which it is currently carried out.
The reason for the above is that this form does harm the women who engage in it, particularly those who choose sex trade based on the lack of other job opportunities.
For defenders of this position, the solution to the problems associated with sex trade is its regulation or legalization, and not its abolition.
It is for all of the above that the decriminalisation position tends to argue that the best solution to address the dangers and risks that prostitutes face is either to create certain regulations that guarantee that the working conditions of sex traders are improved, or to directly decriminalize their practice.
Noting that the early feminist movement called for the labor involved in social reproduction such as mothering, caring for the old, the sick, and the disabled to be recognized as work, the decriminalization camp argues that the term “sex trade” both means that female "sex traders“ are women who are paid for what they do, and that as with other women, what they do should be respected as a skilled and effortful activity and not considered simply as a natural capacity of every woman.
4. The abolition of prostitution
In contrast to the previously analyzed positive view, there is another view that considers sex trade as a harmful practice.
According to this second view, “What is wrong with sex trade” is that, for the male client to buy mastery of an objectified female body, the female must sell herself in a very different and much more real sense than that which is required by any other occupation.
It is argued that, this type of sex-monetary exchange damages the prostitute since to contract out sexual use of the body requires the woman to sever the integrity of body and self, something that carries grave psychological consequences, since the basic human good of body-self integration is replaced by the evil of body-self dualism.
This is how body-self dualism is said to happen: When female prostitutes have sex with a client they often state that they ‘‘switch off’’ their sentience capacities and emtional sensibilities. The prostitute is motivated to ‘‘switch off’’ from the sexual use of her body for different reasons.
Rather than offering the client her "embodied self," she attempts to offer only the ‘‘raw meat’’ of her body. Her mind goes blank. She just lies there with emotional coldness. She becomes just an object.
For the prostitute to present her body as property and as peripheral to her sense of self is to issue a challenge to her status as embodied.
But the prostitute justifies her disassociation of sex from self for ‘‘protection." It is the close relation between her sense of self, her embodiment and sex, which compels her to disassociate from her body during sex in prostitution. So, the fact that she switches off for self protection, demonstrates the ways in which she has internalised as meaningful her status as embodied, and the relation between sex and self for women.
When the prostitute switches off from the sexual use and/or pleasure of her body she is able to claim a rationality commensurate with that required in any work contract. She is asserting a claim to rationality in the only manner she knows how—through positioning her body as separate to her mind.
Thus, one of the major philosophical justifications for laws making sexual services illegal is that prostitution is, intrinsically, a violation of human dignity, especially of the human dignity of women.
Paying a person in order to accomplish a sexual act upon her or to have her accomplish a sexual act upon oneself is, so the argument runs, using her as a mere tool for sexual gratification, and this is so even if we suppose that the person in question offers her sexual services voluntarily and without being forced or coerced.
It is thus argued that, consent may be transformative in many instances, but it cannot transform a prostitutional act into something compatible with human dignity, however well the client may treat the prostitute. In this sense, prostitution is said to resemble slavery.
Thus, the essence of the prostitution contract is that the prostitute agrees, in exchange for money or another benefit, not to use her personal desire or erotic interests as the determining criteria for her sexual interaction.
What this means is that the sex trader must, at least during working hours, assume herself as the Other, fix herself as an object, in order that everyone else may always be able satisfy their erotic “needs” on demand.
In other words, the existence of a market for commodified sex leaves room for every non-prostitute to become, a despotic subject should he so choose.
For feminist abolitionists, this subject/object distinction in sex trade necessarily corresponds to a patriarchal order within which men achieve self sovereignty through the political subordination of women.
Moreover, the abolitionist position maintains that the sexual trade in general not only rests on, but also produces and reproduces, the subordination of women, thus constituting a form of sexual violence towards them.
In legislative terms, the defenders of this position seek the establishment of an abolitionist regime whose objective is to reduce or eradicate the practice of sex trade through mechanisms that criminalize not only the purchase of sexual services, but also the figure of the pimp and the management of brothels.
It should be remembered that the abolitionist position does not criminalize women because it considers them a victim of the sex trade.
Some thinkers in this school of thought state that from an economic point of view the sex trader and the married woman occupy similar positions, but that it is in the case of the sex trader where all the figures of female slavery are summarized.
The arguments that arise from this conception of the practice of sex trade are presented as criticisms of the contractualist position that, as we have already said, considers sex trade as any job, sex traders as autonomous agents of a legal market and pimps as entrepreneurs and small businessmen.
Likewise, from more radical currents, attempts have been made to make visible the fact that it is the man, and not the woman, who demands that her sexual desire be satisfied.
4.1. The essentialist argument
One of the first and founding contemporary positions against the practice of sex trade is called the essentialist argument. This is an argument according to which, prostitution is morally undesirable, regardless of any reform carried out on it, because it is one of the most graphic examples of the domination of men over women.
In this sense, this argument criticizes liberal contractual arguments that tend to assimilate sex trade to other types of work.
Under this argument, the contractual-liberal understanding of sex trade hides some of its fundamental aspects, mainly the fact that the majority of those who practice it are women.
The argument emphasizes that, although men and women participate in the sexual market, it is the latter who mostly exchange sex for money.
Likewise, it maintains that by stating that the practice of sex trade depends exclusively on a question of distribution of economic burdens and benefits, the abolitionists overlook the fact that said practice not only depends on this type of inequalities, but also on relationships unequal conditions of domination and subjugation.
Another central point of the position advanced by essentialists is that they refuse to equate the practice of sex trade with other wage jobs typically carried out by women, such as secretarial work or nursing.
The main reason is that the use of the services of a sex trader differs from other employment contracts to the extent that the men who hire sex traders have only interest in their body, specifically in the sexual use of it.
Contrary to what contractualists defend when they try to equate sex trade with other jobs, abolitionists assert that the main problem is that the services performed by the sex trader are related in a more intimate way to her body compared to other jobs/employees.
To support the previous thesis, abolitionists invites us to think about the connection that exists between sexuality and the sense of our own value.
It is that self-value that would lead a sex trader to distance herself from herself when she performs the sexual act with the man she paid for her services.
Therefore, when sex becomes a commodity, her body and her own self also become a commodity, thereby violating the intimate relationship between personality and its physical incarnation.
In this way, and because the way in which our personality is involved through the sexual act is different from how it is involved in other jobs, it is not possible to maintain that sex trade is a job like any other.
Regarding the previous point, it should be noted that as a way to protect their intimate self, sex traders permanently change their service name.
A woman who enters sex trade generally acquires a new name, changes her appearance, and creates a fictitious past. She does this not so much to protect herself from the police, but to reorganize her personality to satisfy market demand, and also as an attempt to keep something of herself for herself.
Likewise, some abolitionists highlight the gender difference that exists between the buyer and the sex trader, a difference that would express the lower status of women.
For them, the sexual contract between men and women would reveal that the patriarchal construction that sustains the difference between masculinity and femininity is nothing more than the political difference between freedom and subjection; and that the way in which men reaffirm said masculinity over women is through the sexual act, or sexual dominance.
In this way, the contract that would be the basis of the exchange of sex for money would imply the reaffirmation of the man over the woman and, in a certain sense, the reaffirmation of her economic, political and social inequality.
There are two other criticisms of liberal-contractualism that remain at the center of feminist analysis of sex trade.
Firstly, it is criticized that sex trade is treated as a problem of the women who are sex traders, and not as a problem of the men who demand it.
The perception of sex trade as a problem for women implies that criticism of sex trade will most likely be accused of showing contempt for them.
Likewise, this approach implies that the other participant in the sex trade contract escapes scrutiny, that is, it ignores explaining and justifying why men demand that women sell their bodies as goods on the market.
Secondly, the characterization of the male sexual impulse as a need that demands its satisfaction through the commodification of female sexuality is criticized.
For abolitionists there is an obvious difference that is omitted by some contractualists when they compare sex with other human needs, namely the fact that sex is not a need whose satisfaction determines the survival of individuals.
The point here is that, deprived of sexual gratification, people do not suffer in the same way they do when other basic bodily needs are denied or when medical attention is refused.
There is no biological imperative to orgasm any set number of times a day, week, or year, and though people may fi nd it unpleasant or even uncomfortable to go without sexual release (assuming they are unable or find it undesirable to masturbate), the absence of a sexual partner to bring them to orgasm does not actually threaten their physical survival.
Human sexual desire is grounded in emotional and cognitive, as much as physiological, processes. If the urge to reach orgasm were a simple biological function, such as the impulse to evacuate the bowels, it would hardly matter whether the person with whom you had sex was old or young, or man or woman.
Equally, if a lack of sexual contact posed a threat to health, such that one needed the “ministrations” of a sex worker in the same way one needs those of a doctor or a nurse when suffering from other ailments, then the physical appearance, age, gender, and race of the prostitute would be unimportant.
But sex is not a mere bodily function or physical need. Our erotic life is grounded in the ideas we use to categorize, interpret, and give meaning to human experience and sociality, and specific sexual desires do not, therefore, directly express some fundamental, timeless, or general human need for sex. To treat them as if they do is hugely problematic, it is argued by abolitionists of sex trade.
Along with the above, it is argued that equating sex trade with sex without mutual affection also overlooks the fact that in sex trade there is not even mutual desire.
In fact, the difference between the reciprocal expression of desire and the unilateral obligation to perform certain sexual acts for the sole benefit of payment is comparable to the difference between freedom and slavery.
The idea that sex trade is nothing more than a job like any other is also resisted by some abolitionists who consider that the normalization of this practice undermines people's sexual autonomy.
Through sex trade, women renounce their right to sexual autonomy because their jobs put them under a contractual obligation to have sexual relations and, therefore, diminishes the control they have over when and with whom they want to have them.
In contrast to some contractarian positions that compare sex trade with other jobs such as being a masseuse, opera singer or philosophy teacher, some abolitionists carry out a hypothetical exercise through which they illustrates the implications of considering sex work like any other.
These abolitionists believes that treating the sex trade as another form of labor would undermine three aspects of sexual autonomy: (i) we would be expected to engage in sexual activities when certain incentives are present, (ii) we would have less control over our sexual lives and, finally (iii) our sexual autonomy would be undermined through the aggressive market for sexual services, which would alter the framework of ideas in relation to permissible sex.
Although the prohibition (or abolition) of prostitution is not in itself sufficient to guarantee or restore the sexual autonomy of those women who have lost it, some abolitionists consider that the prohibition can play an important role in the rejection of those transactions of sex for money because they lead to the reduction of women's autonomy.
The prohibition (or abolition) of abolitionists constitutes a restriction on the type of pressures or circumstances that a society must allow a person to endure in relation to their sexual career choices.
Seen from this perspective, the debate on the different policies and legislation that should be adopted regarding the practice of prostitution should go far beyond the examination of the voluntariness of those who exchange sex for money, or the equality between what is given and what is received, they argue.
They think that, the debate should focus above all on the conditions of justice that precede and surround the transaction and how these asymmetric conditions, both economic and status, are the basis of the sex trade. This is to say that, the problem of prostitution “should be understood as a matter of social justice.
4.2. The harm reduction argument
A specific type of prostitution that is harmful to the women who practice it, is that in which those who provide sexual services do so daily to a number of men they do not know. The consequences that this form of prostitution implies for those who carry it out are many.
Against this background, some abolitionists consider that the damage suffered by sex traders is not only physical, but also psychological; damages that mainly affect one's self-perception and self-respect.
If we take these harms seriously, the existence of paternalistic laws that aim to reduce them by reducing the number of people who carry out sex work should make sense to us, they argue.
In this sense, the response to legalizing or abolishing prostitution does not rest on a particular preconception that we have about sexual work (essentialist position), but rather on the recognition of the harm it produces on women.
It is for this reason that the choice of an appropriate policy will depend on whether it manages to reduce said damages. The answer must finally rest on a reflective balance between our intuitions about what sex trade is and what experience shows us.
Since it is not a deductive argument, there will be no single answer and it will depend on both the context and the experiences we face, it is argued by some thinkers.
As it has already been argued, the harm suffered by sex traders is not denied by those who seek to legalize this practice. They agree that women who carry it out are currently harmed in one way or another.
However, they attribute the damage suffered by sex trade to both stigmatization and the prejudices that we as a society have about them.
Unlike them, some abolitionists consider that the way to reduce these harms would be through a permissive abolition regime, and not through decriminalization or prohibition.
This is a conclusion that some researchers reach through an analysis of the empirical data available on the damages suffered by sex trade, data that offer the necessary elements to think about the best way to reduce them.
For abolitionists, the type of sex trade described above is especially stressful for the women who practice it to the extent that they experience it as humiliating and violent, also bringing about the appearance of feelings of shame and hatred towards themselves.
Moreover, this type of sex trade demands constant emotional falsehood on their part since they must constantly feign satisfaction and enjoyment when they carry out the sexual act, even if they are being physically and psychologically mistreated.
All of these conditions, associated with those of changing their name and renouncing their identity while working, produce personality disorders that would make it very difficult to think that it is a job similar to any other.
Thus, for some abolitionists, this type of sex trade requires an exhausting type of emotional simulation, so that, a successful sex worker must generally pretend to enjoy the company of her clients and to be sexually interested and aroused by them even when they consider her stupid, offensive, pathetic or repulsive.
As a result of the above, those in sex trade come to associate sex with simulation and emotional manipulation, as well as with exploitation and abuse. All of the above makes it very difficult for a woman who practices sex trade to fully enjoy her sexual life.
Accordingly, some abolitionists argue that in light of paternalistic considerations we would be justified in supporting a permissive abolitionist policy or a non-permissive form of regulation.
A permissive abolitionist policy does not criminalize sales or consumption as such, but it does criminalize associated activities such as the operation of brothels, soliciting services on the street, among others.
It has been shown that an abolitionist policy lowers not only the rates of prostitution, but also the trafficking of people to carry out the sex trade, and even lowers the rates of trafficking of underage women. Due to the above, this policy would be justified in view of harm reduction.
In relation to non-permissive regulation, it imposes more demanding age of consent and legal employment restrictions than usual. Faced with both, some thinkers are inclined to prefer the permissive version of abolitionism, since the second is hardly feasible or achievable to the extent that there would be a natural tendency to think that a person has reached a certain age when in reality they have not, added to the ease that exists to falsify it.
With respect to the remaining alternatives, the prohibition of prostitution would not minimize the risks and harms suffered by women, but rather minimizes women's autonomy and would criminalize them, generating a less safe work environment.
On the other hand, a policy of complete decriminalization of sex trade - that is, a policy that treats it the same as other commercial activities - would allow more girls and women to sell their sexual services, which would increase the number of women exposed to harm.
Given the above, many abolitionists do not criticize the practice of prostitution for being wrong or immoral, but rather because it is a reckless and inadvisable activity.
4.3 The contingency argument
Another group of theorists consider that the degradation suffered by sex traders is due to certain contingent characteristics present in their practice, the permanence of said traits being what makes said activity unacceptable.
Within the framework of the discussion on the moral limits of the market, some thinkers consider that some of these should be suppressed when they have one or more of the following characteristics: (i) they produce extremely harmful results for the participants of the exchange or for third parties, (ii) ) are extremely harmful to society (iii) there is a very weak or highly asymmetric knowledge and capacity for action on the part of one - or a group - of its participants and (iv) they reflect - and exacerbate - the extremes underlying vulnerabilities to one of the parties to the transaction.
It is within this framework that some thinkers question the validity of sexual services markets, considering that they have several of the aforementioned characteristics.
Although they consider that these characteristics are not contingent, by persisting they would grant states legitimacy to prohibit or restrict them.
They defend what they call the asymmetry thesis. This thesis maintains that there is an asymmetry between sex trade and other forms of work that would allow us to affirm that the sale of sexual and reproductive activities is inappropriate.
They criticize those who consider asymmetry to be fundamentally economic or essential and proposes considering an egalitarian approach to deal with the problems associated with this activity.
For them, what is wrong with sex trade is its close relationship with gender inequality, a relationship that is based on two dimensions: a first of an economic nature that involves income disparity, segregation at work and the division inequitable reproductive work in the home; and a second status inequality that involves negative stereotypes towards women, unequal distribution of power, marginalization and stigma.
Once these two forms of inequality are recognized, some other theorists think that both are intertwined when trying to answer what is wrong with prostitution.
In this sense, women's decision to enter the sex trade must be seen not only in light of their unequal social opportunities, but also their lower income.
On this view other thinkers suggest that this activity represents and constructs an unequal gender image by establishing a class of women as inferior, a class that is seen as sexual servants of men.
In this sense, sex trade as we know it is not separable from the culture that marginalizes, constructs stereotypes and stigmatizes women. That is, the market for female sex work rests on and reinforces these patterns of discrimination.
Another argument focused on the contingent features present in sex trade considers that understanding the problems that afflict sex traders must be approached from certain cultural principles that support their current practice.
On this view, sex trade, as it is conceived and practiced in our society, is oppressive towards women mainly because its exercise depends on the acceptance of certain principles whose formulation serves to marginalize them in social and political terms.
In this sense, it is the cultural context in which sex trade operates that ends up perpetuating harmful patriarchal values and beliefs for the women who practice it.
According to some authors, there are four principles that support the social meaning that we currently have about prostitution, namely: (i) the universal possession of a powerful sexual impulse, (ii) the natural dominance of men, (iii) sex contaminates women and (iv) the reification of sexual practice.
All these cultural convictions are present in our society and would structure the meaning that sex trade has for us. The argument is contingent since, if such cultural conceptions about men and women and their relationships between them did not exist, the practice of prostitution could be based on other cultural convictions that are not necessarily harmful to women.
In this sense, prostitution is not a social aberration, but rather a consequence of certain values that make up our institutions and social practices.
In this way, it is considered by some that we should oppose the existence of sex trade as it is practiced today given that the principles that support and organize the sexual industry in which their work is based on pernicious gender asymmetries in many domains of our social life. Tolerating sex trade would imply tolerating oppressive treatment of women.
The point here is that, the market principle which states that, in the act of commodity exchange, the individual, each of them, is reflected in himself as the exclusive and determining subject of the exchange, and that, with that the complete freedom of the individual is posited is extremely contingent upon several factors, when applied to prostitution.
The critique is that, imagining that by exchanging money for commodified sex, the individual is liberated from her or his fixed relationship to the wider sexual community, while being recognized as a sexual subject and set completely free is illusory.
The illusion is said to come from the fact that, any such “freedom” is contingent upon the existence of a particular, and highly unequal, set of political, economic, and social relations, since in general, people “choose” neither wage labor nor sex trade unless denied access to alternative better means of subsistence.
4.4 Prostitution policy options: Prohibit, abolish, regulate or decriminalize prostitution
There are two main approaches to prostitution that are manifest in how prostitution is regulated on paper and in practice: The first perceives prostitution as an unwanted phenomenon that should be abolished.
The second approach is that governments should facilitate prostitution to prevent it from taking unwanted forms and producing detrimental effects on society and the people involved.
At least three primary responses to prostitution emerge in response to these commitments: (1) criminalization approach, (2) decriminalization approach, and (3) legalization /regulationist approach.
Historically, the most widespread approach has been to prohibit, by religious doctrine or penal law, all or some forms of prostitution.
Prostitution has been defined as a public nuisance, a threat to the moral fabric of society, and a public safety and health issue. What has counted as prostitution has shifted, and so has which party is counted as the most culpable.
Today, buying and selling sex and third-party involvement are criminalized in many countries throughout the world; this is the most common approach.
Decriminalization is often taken to mean that prostitution is regulated by labor laws on par with the way labor sectors are, but it also may point to a situation in which neither repressive or protective laws apply.
In some cases, decriminalization is not a part of a governmental strategy to find other means to regulate prostitution but rather something that keeps prostitution and the people who operate in the prostitution market in a legal void where they are neither committing a crime nor accessing protections and benefits that other sectors are afforded.
The aims of decriminalization differ between countries, but often they do not necessarily include giving up control over the market but are rather aimed at finding new and better ways of controlling prostitution than by the penal code.
Legalization provides more control over and transparency in the market and gives governmental bodies, especially the police, more ability to protect the most vulnerable in prostitution.
An example of what is often termed legalization of prostitution is how it is regulated in the US state of Nevada. In Nevada, brothel keeping has been legalized since 1971 but regulated differently than other sectors by the limits put on how and where they can operate.
In other countries, prostitution is not regulated by separate administrative measures but rather is encompassed by labor laws and thus prostitution is treated as a job like any other. Prostitution is counted as labor in one form or another in Germany, Austria, the Netherlands, and in parts of Australia.
Thus, we may have the following prostitution policy options: prohibit, abolish, regulate or decriminalize. In general a global synthesis of the available policy options reveals the following five scenarios:
(1) criminalize buying and selling of sex, as well as related activities such as street walking, kerb crawling, pimping, and brothel-keeping (the policy in most U.S. jurisdictions).
(2) criminalize buying and brokering of sex, including brothel-keeping, but not the people who sell sex (i.e. prostitutes). (the policy in Sweden, Norway, Iceland, Finland, Northern Ireland, Canada, and, most recently, France).
(3) criminalize prostitution-related activities such as streetwalking, kerb crawling, pimping, and brothel-keeping, but don’t criminalize the buying or selling of sex as such (the policy in England, Wales, and Scotland)
(4) criminalize pimping and brothel-keeping, but don’t criminalize the purchase or sale of sex as such or other activities by sellers (the policy in Denmark and Israel); and
(5) don’t criminalize any prostitution-related activities other than trafficking and forced prostitution, but license, impose age limitations and regulate matters of health and safety (the policy in Germany, the Netherlands, New Zealand, and Nevada).
Some of these policy options hold that, both the criminalization and legalization of commercial sex have ethical pitfalls because they can “disempower and burden sellers” and put vulnerable people at increased risk of harm.
Its is argued in this regard that, the model which criminalizes only the buying and brokering of sex, offers the advantage of eliminating punishment for sellers, while potentially preventing the expansion of the commercial sex market and limiting the number of people trafficked.
It is further observed that, While criminalization has the potential to reduce the likelihood that people will be trafficked, arrests can compound adversity for sellers, especially those from marginalized populations, and enforcement can be used selectively against buyers and brokers.
One might imagine that those jurisdictions that shared a particular approach to criminalization would also share an approach to defining prostitution, and vice versa.
But, as it turns out, that is not the case at all. In practice, there is little correlation between the manner in which prostitution is criminalized and how the act itself is defined.
5. Conclusion
As we have seen in this part, the practice of sex trade has generated an interesting debate about what is the best policy to deal with the negative effects it produces on the women who practice it.
Several authors have tried to contribute to the discussion by offering arguments to defend one of the four policies that constitute the framework of discussion, namely, prohibit, abolish, regulate or decriminalize.
In the first part we explored the main arguments in favor of regularizing or decriminalizing prostitution. The first of them was the liberal-contractual argument, according to which, if two adults voluntarily consent to an economic agreement regarding a certain sexual activity, it seems completely absurd to maintain that there is something intrinsically wrong On it.
On this view, if the relationship between sex traders and their clients were mediated by a contract, then they could enjoy better health, police and legal protection, which would in turn allow them more effective control against abuse and aggressive behavior customer service.
In the second part we examined the main arguments that oppose the normalization of sex trade. We first analyzed how, from the essentialist perspective, a non-permissive abolitionist policy would be justified by the fact that prostitution would be one of the most obvious examples of the domination of men over women.
Secondly, we reviewed the possibility of defending a permissive abolitionist position based on consideration of other factors, mainly the harm that prostitution produces on women.
On this view, one can defend a paternalistic argument according to which, since prostitution is harmful to a very significant number of women who practice it, we should generate laws that reduce it.
The idea is that, the best alternative would be an abolitionist policy, not only because empirical data show that this would reduce prostitution rates, but also because a policy like this would reduce human trafficking for the sexual trade.
At the end of the second part we saw to what extent the reasons for opposing prostitution can be based on the fact that there are certain characteristics that, although not inherent to it, could equally degrade the women who practice it.
Likewise, the review of a thesis on harmful markets in general, and sex trade in particular, allowed us to see how this type of markets generates an important contribution to lowering the social status of women.
On this view, prostitution is harmful not only because of the effects it produces on men's perception of women as sexual servants, but also because of the devastating emotional effects it produces on women's own perception of themselves.
All of the above, it was argued, shows that sex trade is wrong to the extent that it contributes to perpetuating a dominant form of status inequality between men and women.
Given all of the above, it seems extremely necessary to us that when evaluating any modification to the regulation of sex trade, contemporary academic debates on this matter, as well as the most effective and up-to-date data, should be considered.
Any policy that wants to improve the conditions of women who practice prostitution must balance our intuitions about this activity with data from experience.
If we do not do so, we could mistakenly consider that sex trade is reduced to a mere contractual relationship isolated from the entire social context in which said practice is carried out. Legislating based on bias, or incomplete information, could be even more harmful to women who exchange sex for sex, it was concluded.
XVII. Quotable quotes
Though the medieval church fathers held prostitutes in contempt, they took no official action to completely ban harlotry, justifying this on theological grounds.
Specifically, St. Thomas Aquinas of Italy and St. Augustine of Algeria upheld that prostitution is a necessary evil to human society. And Jesus implied that non-adulterous prostitution is morally neutral. Let us explain. In the fourth century, St. Augustine wrote that:
"Remove prostitution from human affairs, and you will unsettle everything because of lust."
Some eight centuries later, St. Thomas Aquinas said the following about prostitution:
"Prostitution in cities is like the sewage system in the palace. Do away with it, and the palace will become a place of filth and stink."
It may come as a surprise to most people to find the church Fathers advocating the tolerance of prostitution. But the debate about the place of prostitution in civilized society is as old as the "profession" itself. So, let us embark on this deliberation cautiously.
The final quote comes from the Bible and it talks about the right of prostitutes to enter heaven regardless of the prevailing social and theological stigma against prostitution.
"Truly I tell you, the tax collectors and the prostitutes are going into the kingdom of God ahead of you." (Jesus of Nazareth, Gospel of Matthew 21:31).
By these words, Jesus challenged the traditional theology which has historically invested huge amounts of energy into fitting the "normal" and "abnormal" patterns of societies, by using the "saints/sinners" binary.
This binary has since then been used to condemn those human conducts which are considered "abnormal," which are then classified as "heterodox acts" as opposed to "orthodox acts," which are classified as "normal."
The "saints/sinners" theological binary is an equivalent of "conformists/deviants" binary in sociology, just as it is an equivalent of "moral/immoral" binary in ethical philosophy.
The best example to show how this binary discourse operates, and sometimes wrongly, is the Biblical Mary of Magdala.
As with many human beings around the world, in past or present times, she has been historically trapped in binary thinking. She is always portrayed as a "sinner" as opposed to a "saint," an "indecent" woman as opposed to a "decent" woman, an "immoral" woman as opposed to a "moral" woman, and the like.
What underlies those binaries is the abstract ideal of normalcy, which also privileges a particular conception of the bodily acts, setting up the "different" as deviant.
Historically, the Enlightenment developed the concept of normalcy through which some Western societies have been privileged as the measure of normalcy, giving meaning to reality, colonizing and labelling all "different" cultures and societies as the "deviant" other.
All dimensions of human life, including human sexuality, have suffered the consequences of this notion of normalcy, in terms of which the "different" cultures must be normalized.
The process of "normalization" is based on several facets: labelling, dehumanizing, demonizing, exoticizing, stigmatizing, and silencing.
This is called the normalizing gaze, according to Michel Foucault (1977: 182–183) in his work, "Discipline and Punish: The Birth of the Prison (New York: Pantheon Books) as translated by Alan Sheridan.
In human sexuality, what is at the base of this process of normalization is a marital-nonmarital binary thinking. This binary judges sexual human behavior within the context of what we can call a "hexagonal inseparability thesis."
This thesis entails a unique type of sexual act which can simultaneously be a cause, and therefore, semiotically speaking, a natural sign, of:
- Reproductive unity across generations (intergenerational unity),
- Relational unity across persons (social unity),
- Recreative unity across psycho-somatic dualism (integrative body-self unity),
- Restrictive unity across time by reason of recursive sex-after-glow (temporal unity, both synchronic and diachronic unity),
- Resourcive unity across necessary resources needed to facilitate sexual interaction (economic unity), and
- Residential unity across domestic space (spatial unity).
- Reproductively unitive significance ,
- Relationally unitive significance ,
- Recreatively unitive significance ,
- Restrictively unitive significance ,
- Resourcively unitive significance, and
- Residentially unitive significance .
So, when the philosopher, Giovanni Battista Montini (1968) wrote an essay entitled "A Manifesto on the Regulation of Human Life," he argued for a specific difference of hetero-affective marriage by asserting "an inseparable connection" between the "the 6R's of hetero-affective sexual activity" in the following terms:
Marriage ... is in reality the wise and provident institution ... whose purpose was to effect in man [a] loving design. As a consequence, husband and wife, through that mutual gift of themselves, which is specific and exclusive to them alone, develop that union of two persons in which they perfect one another, cooperating ... in the generation and rearing of new lives... (Para 8)
This love is above all fully human, a compound of sense and spirit..., an act of the free will... total [mutual gift of self] ... faithful and exclusive of all other, and this until death... Finally, this love is fecund. (Para 9)
[T]he exercise of responsible parenthood requires that husband and wife, keeping a right order of priorities, recognize their own duties toward [nature], themselves, their families and human society. (Para 10)
[T]he natural law ... teaches that each and every marital act must of necessity retain its intrinsic relationship to the procreation of human life. (Para 11)
This particular doctrine ... is based on the inseparable connection ... which man on his own initiative may not break, between the unitive significance and the procreative significance which are both inherent to the marriage act. (Para 12)
We understand Montini (1968) to say that, traditional hetero-affective marriage is a union, based on mutual and binding promise, between two persons, made before the public, to enter into a coital society which is specified by its ability to bring about a parental society, by reason of the inherent sexual activity which is restrictively, reproductively, rehabilitatively, residentially, resourcively and relationally unitive, in type, hence the "6R's of hetero-affective sexual activity.
Biologically speaking, these "6R's of hetero-affective sexual activity" are only simultaneously possible via a hetero-affective inseminatory penis-to-vagina sex which is uncontracepted.
Such a type of sexual act is, according to the dominant tradition, is described as the standard "hetero-affective marital sexual act," and is recognized as "morally good" and orthodox, in opposition to all other "hetero-affective non-marital sexual acts," which are incompatible with the "hexagonal inseparability thesis."
On this view, examples of "hetero-affective non-marital sexual acts" are fellatio, armpit sex, inter-crural sex, inter-breast sex, hetero-affective pedication, fornication (premarital sex), cohabitational sex, adultery(extramarital sex), prostitution, manual masturbation, and other similar sex acts which are incompatible with the "pentagonal inseparability thesis."
These hetero-affective sexual acts, even when performed by spouses, are recognised as "morally bad" and heterodox, hence worthy of moral condemnation in order to maintain the superiority of sexual orthodoxy over sexual heterodoxy.
It is in this way that, the notions of sexual decency and sexual indecency control the sexual behaviour of human beings in society. And this is how social and theological stigma against prostitution comes about.
It is based on this theory of the normalizing gaze, that traditional theology has portrayed Mary of Magdala as a "sinful" prostitute as opposed to Mary the Mother of Jesus who is portrayed as a "saintly" mother. In short, binary thinking does not allow for further alternatives apart from sexual decency and sexual indiscency.
But, the profile of Mary of Magdala tells us something beyond the decent/indiscent dichotomy, and Jesus confirms this.
Specifically, about 2000 years ago, Jesus of Nazareth warned Pharisees that, contrary to their expectations, sinners such as prostitutes also do enter into the kingdom of God. He rejected the decent/indecent dichotomy in clear terms in the Gospel of Matthew (21:31), as quoted above.
The Appearance of Christ to Mary Magdalene on Easter morning
These words were proved by the fact that, Mary of Magdala is the first witness of the risen Christ on Easter Morning when she visited the Tom (John 20:1-2), and this fact tells a lot about the wrong of the moral/immoral binary which has been used by theologians to demonize her for centuries.
From the story of Mary of Magdala we may come to accept that, some human acts are neither morally good nor morally evil, but morally neutral and non-adulterous prostitution belongs to the latter category, according to Jesus.
Thus, to move beyond the binary thinking of moral/immoral is an act of resistance as well as an act of liberation to open up spaces for new philosophical and theological possibilities in favor of those who are, without warrant, victims of labelling, dehumanizing, demonizing, exoticizing, stigmatizing, and silencing.
This means that, we need to "undress" our prevailing positive and moral laws in order to denounce their mechanisms of submission that function as tools of unwarranted labelling, dehumanizing, demonizing, exoticizing, stigmatizing, and silencing.
It is against these three authoritative quotations that we now summarize our main differences between us and the Dar es Salaam RC, Mwalimu Chalamila as follows:
One, "anti-prostitution operations" belonged to the distant past when the wall of separation between religion and state did not exists, as evidenced by the the Victorian era puritan ideologies.
The Victorian era spans the 63 years of Queen Victoria’s reign over Great Britain and Ireland from 1837 until her death in 1901. It was characterized by sexual policing of consensual, hetero-affective, private sexual acts amongst adults, who considered such sexual encounters harmless and victimless human conducts which should not be criminalized.
For them, consent was necessary and often a sufficient condition in all contractual transactions, just as consensual boxing as opposed to battery, theft as opposed to gift, rape as opposed to marital sex, and other similar binaries showed, where the difference in each binary stems from "consent".
Two, our national crime statistics for the past five years, as annually collected by NBS and published under "Tanzania in Figures" Annual Reports, do not mention "prostitution," "fornication," or "adultery," as among the registered crimes, either because they are almost a harmless "crimes" or they are "crimes" whose prosecution is almost impossible.
Three, his operation seemed to confound criminal commercial sex transactions (payment-for-sex exchange) and non-commercial sex transactions (gift-for-sex exchange) which are not criminal, in a way that threatens to create sex negativity which promotes a society that values procreative sex only, as opposed to sex positivity which promotes a society that cherishes the value of sexual diversity as expressed in terms of inter-generationally unitive sex (aka procreative sex), intra-personally unitive sex and inter-personally unitive sex.
And four, the manner in which the Dar es Salaam Governor speaks about prostitution portrays him as a school teacher who is enforcing proscriptive sexual norms amongst secondary school students, while he currently occupies an office that makes him a leader of some six million persons belonging to different sexual lifestyles.
All this is suggestive of the fact that he needs capacity building in relation to matters pertaining to human sexuality in the third millennium.
Most probably, this need extends to his fellow RC's and DC's who have never been exposed to formal training on the comprehensive truth and meanings of human sexuality. This article was prepared to close the perceived knowledge gap.
XVIII. References
Our arguments herein above have heavily benefitted from the following works:
- Andrej Rus (2008), “Gift versus commodity: Debate revisited,” Anthropological Notebooks 14 (1): 81–102.
- Anton van Niekerk and Liezl van Zyl(1995), "The ethics of surrogacy: women's reproductive labour," Journal of medical ethics, 21:345-349.
- Bart Rwezaura (1998), "The Proposed abolition of de facto unions in Tanzania: A case of sailing against the social current," Journal of African Law , Volume 42 , Issue 2 , pp. 187-214.
- C. Harcourt and B. Donovan(2005), "The many faces of sex work," Sexually Transmitted Infections 81:201–206.
- E. M. Durisin, E. Van der Meulen & C. Bruckert (2018), Editors, Red Light Labour: Sex Work Regulation, Agency, and Resistance (University of British Columbia Press).
- Igor Primoratz (2012), "Prostitution," Published in: Ruth Chadwick (ed.), Encyclopedia of Applied Ethics, 2nd Edition (Elsevier Inc), p. 632-641.
- Janet Hyde and John DeLamater (2023), Understanding Human sexuality, 15th Edition (New York: McGraw Hill LLC), Chapter 16. Book attached.
- John Finnis (2008), “Marriage: A Basic and Exigent Good,” The Monist, 91.3–4: 389.
- Kathy L. Gaca (2003), The Making of Fornication: Eros, Ethics, and Political Reform in Greek Philosophy and Early Christianity (Berkeley: University of California Press).
- Ministry of Finance and Planning (2023), Tanzania in Figures 2022(Dodoma: National Bureau of Statistics)
- Raja Halwani, Alan Soble, Sarah Hoffman, and Jacob Held(2017), The philosophy of sex : Contemporary Readings, 7th Edition (Lanham/Boulder/New York/London: Rowman & Littlefield). Book attached.
- Raja Halwani (2010), Philosophy of Love, Sex, and Marriage: An Introduction (NY:Taylor & Francis Group).
- Stuart P. Green (2016), "What Counts as Prostitution?," Bergen Journal of Criminal Law and Criminal Justice, 4.1:184-202.
- William H. Masters and Virginia E. Johnson(1966), Human Sexual Response (Boston, Little: Brown)
- Gary Becker (1968), “Crime and Punishment: An Economic Approach,” Journal of Political Economy, 76: 169-217.
- Marshall Clinard and Daniel Abbott (1973), Crime in Developing Countries (New York: Wiley).
- M.K. Anser, Z. Yousaf, A.A. Nassani, and others (2020), “Dynamic linkages between poverty, inequality, crime, and social expenditures in a panel of 16 countries: two-step GMM estimates,” the Journal of Economic Structures, article number 43 in Volume 9.
- Dick Andzenge (1991), "Crime and development: A comparative analysis," Doctoral Thesis done at Western Michigan University, USA.
- Wanjohi Kibicho (2016), Sex tourism in Africa: Kenya’s Booming Industry (New York: Routledge Taylor and Francis Group).
- Pablo Westwood & María Hernández(2020), "What is wrong with prostitution?," Veritas, 47:9-30.
- Julia O'Connell Davidson (2002), "The Rights and Wrongs of Prostitution," Hypatia, 17.2:84-98.
- Maria Borges and Cinara Nahra (2020), Body and Justice (UK: Cambridge Scholars Publishing).
- Irene Fedorova and Five Others (2013), Love as a Fictitious Commodity: Gift-for-Sex Barters as Contractual Carriers of Intimacy," Sexuality & Culture, 17:598–616.
- Belinda Carpenter(1998), "The prostitute and the client: challenging the dualisms," Women’s Studies International Forum, 21.4:387–399.
- Nina Silver (1994), "Prostitution and the mind/body debate," Off Our Backs,24.11:22.
- Rob Lovering (2021), A moral Defense of Prostitution (New York: Palgrave MacMillan)
Mama Amon,
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Dawati la Utafiti la Mama Amon (DUMA),
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S.L.P. P/Bag
Sumbawanga.
