Doing feminist, human rights-based, socio-legal research on prostitution: challenges and potential

Abstract
This article discusses the dilemmas faced in my research on prostitution.  After describing the projects I have been undertaking in New Zealand and Croatia, it discusses the methodological and ethical issues I have been facing and the relevance of the legal and socio-cultural environments. In particular, it looks at the problems in securing access to the field and recruiting participants, the relationships with the participants, and the risks faced by the participants and the researcher. Following this, it summarises the lessons learnt and contributions that feminist socio-legal research centred on human rights can make for sex work scholarship.

Keywords
Feminist research, human rights, methodology, prostitution, regulatory regimes, research ethics, socio-legal research.

I. Introduction

Prostitution/sex work(1) has been a highly controversial subject for feminism, mostly discussed in two highly oppositional camps.(2) On one side, radical feminists have framed prostitution as violence against women and sex workers as victims (Jeffreys, 1997; Barry, 1995). On the other side, liberal feminists have framed prostitution as a matter of choice, while sex radicals and (some) sex workers’ rights activists have even positioned sex workers as subverters of patriarchy (Delacoste and Alexander, 1988). A third perspective has recently been gaining prominence, mostly taken by feminists doing empirical research on prostitution and situated within postmodern and postcolonial theories, which challenges dichotomous thinking around agency/victimhood and work/violence (O’Neil, 2001; O’Connell Davidson, 1998; Pajnik, 2013; Scoular, 2015). This perspective recognises the agency of sex workers, as well as the social, economic and political constraints within which this agency is played out. Viewing prostitution as neither inherently oppressive nor an instance of sexual freedom, it occupies an uncomfortable position. This highly politicised environment constitutes one of the challenges of doing (feminist) research on sex work (Ward and Wyle, 2014).

Other challenges relate to specific methodological and ethical issues that arise with respect to researching the sensitive, hidden and often illicit world of commercial sex (Sanders, 2006). These include the difficulties in securing access to the field and recruiting (a diverse group of) participants; questions of validity, reliability and generalisability of data; issues of privacy and confidentiality; personal, health, and legal risks, and emotional issues that the researchers face; as well as forming and ‘managing’ relationships with research participants (Shaver, 2005; Sanders, 2006). The difficult nature of the field may be one of the reasons why empirical research on prostitution, though expanding in recent years, is globally still relatively scarce,(3) and particularly so in certain regions such as Central and Eastern Europe.(4) Moreover, most studies of prostitution are situated within a single discipline – predominantly sociology and anthropology. There are few socio-legal studies, although this scholarship is also expanding (e.g. Scoular, 2015; Cruz, 2013; Kotiswaran, 2011; Munro and Della Giusta, 2008). However, human rights scholars have yet to fully embark on researching the sex industry,(5) and (international) human rights jurisprudence is still scarce,(6) despite the important step which Amnesty International (2016) has taken in highlighting the human rights abuses suffered by sex workers, and promoting the full decriminalisation of adult voluntary sex work.

It is against this background that I shall discuss the dilemmas faced in my own research on prostitution.  After describing the projects I have been undertaking in New Zealand and Croatia, I will discuss the methodological and ethical issues I have been facing and the relevance of the legal and socio-cultural environments. In particular, I shall look at the problems in securing access to the field and recruiting participants, the relationships with the participants, and the risks faced. Following this, I will summarise the lessons learnt and contributions that feminist socio-legal research centred on human rights can make for sex work scholarship. This is a reflective piece that aims to record the hurdles that different structures within academia and the sex work industry (as framed by prostitution policies) impose on doing empirical socio-legal research on sex work. By sharing this story, I hope that it might help others who are struggling with ethical and methodological issues in sex work research.

II. Research projects: aims and methodology

As a feminist human rights (socio)legal academic based in Croatia,(7) where sex work is criminalised,(8) I was long interested in the topic of prostitution, but it was not before I joined the EU COST Action  Comparing European Prostitution Polices: Understanding Scales of Governance (http://www.prospol.eu) that I got an opportunity to conduct fieldwork with sex workers through a Short Term Scientific Mission award. The research, carried out in February 2016, aimed at exploring the role of the New Zealand Prostitutes Collective (NZPC) in the development and implementation of the New Zealand legislative model of full decriminalisation of adult consensual sex work and its impact on the human rights of sex workers.(9) Exploring the necessary conditions for sex workers’ successful engagement with law, I am looking at how NZPC had become such an important actor in prostitution policy and how it overcame the hurdles identified in the literature on sex workers organising, namely, scarcity of resources, low and inactive membership and problematic leadership, ambiguities of allies, and the stigmatised nature of the industry (Weitzer, 1991; Van der Poel, 1995; Mathieu, 2003). I am also looking at the human rights implications of the full decriminalisation of adult consensual sex work, and whether and how human rights discourse is used in the implementation of prostitution policy in New Zealand.

I carried out observations in the three cities where NZPC has offices (Wellington, Auckland and Christchurch) and conducted interviews with NZPC members, allies and other actors in prostitution policy. In addition to sitting in the office, observing the work of the organisation and analysing documents, I was present at meetings with the police and social services in Auckland and Wellington. I also participated at the NZPC symposium in Wellington and I accompanied the outreach team on the streets in Christchurch. I completed 16 interviews with NZPC members, which included staff, volunteers and a Board member, as a well as a sexual health nurse. The topics discussed were: role and experiences in the organisation, the process of organising and lobbying for the law reform, views on the Prostitution Reform Act (PRA)(10) and its impact on the human rights of sex workers, and the usefulness of engagement with law and the human rights framework. I also looked at other key actors’ perspectives on the NZPC and the PRA, and their role in prostitution policy-making.  I interviewed Tim Barnett, a former MP who sponsored the PRA in the Parliament, about the process of lobbying for the PRA and the relationships with the NZPC. I also interviewed a high ranking police officer, Virginia De Bas, about the relationships between police and sex workers and her views of the PRA. Moreover, I talked to three academics who do research on sex work about their cooperation with the NZPC and their views of the PRA.(11) Altogether I completed 22 interviews and one focus group discussion in the time frame of one month.

In May 2016 I and a Slovenian colleague, Mojca Pajnik, as principal co-investigators, were awarded an ISRF (International Social Research Foundation) small groups project to facilitate comparative exploratory research on sex work in the two countries (http://www.isrf.org/about/fellows-and-projects/fg2-4/). The aim of the project is to assess the prostitution policies of the two neighbouring countries, with slightly differing prostitution regimes (Radačić, forthcoming; Pajnik, forthcoming), their human rights implications and impact on the lives of sex workers. The project involves two main activities: analysis of the legal frameworks in the two countries (including analysis of the recent case-law in the courts in the capital cities), and the exploration of sex workers’ experiences of the prostitution policies, particularly the impact of these policies on their human rights. I have finished the first phase of the project (analysis of laws and the case files of the Misdemeanour Court and the Municipal Criminal Court in Zagreb in the last three years), and have started interviewing sex workers. The sample, method and interview protocols were agreed upon between four members of the project: a lawyer and an anthropologist from Zagreb, and a political scientist and a sociologist from Ljubljana.

The interviews are focused on the sex workers’ relationships with the other participants in the sex industry (clients, pimps, other sex workers), and different state agents (police, prosecutors, judges, social and health workers) to identify potential violations of their rights that occur within these relationships, and ways of addressing them. We also look at what support they have within the networks of family, friends and civil society. The aim is to identify the problems and explore the solutions.  The output is hence not only academic; we will also publish a booklet for sex workers explaining the legal framework and their rights, as well as directions for public policy-makers and implementers.

Recently, I submitted a project proposal entitled Regulation of Prostitution in Croatia to the Croatian National Science Foundation, with the view of expanding this research to elicit perspectives of other important actors in prostitution policy in Croatia (police, judges, politicians, civil society). The project was rejected, the main comments relating to ethical concerns, even though the research was approved by the Ethics Committee of the Institute where I work, and was in accordance with good practices and Croatian regulations.(12) Further, methodological concern was expressed with respect to the representativeness of the sample, even though we expressly stated that our aim is not to generalise, and we explained the specific hurdles in researching marginalised and criminalised groups.  This exemplifies the hurdles that a prostitution researcher can stumble upon already at the stage of project evaluation, confirming the observations Sanders (2006: 451) makes that ethics committees have treated the sex industry as a problematic area of inquiry. Gall (2007: 72) believes that difficulties in getting funding might be an indication of the relative weakness of the ‘sex work’ discourse in wider society.

In addition to the difficulties in getting funding, I encountered other hurdles which have been noted in the literature on methodological and ethical issues in doing sex work research. These are discussed in the next section. It is to be noted, however, that the Croatian research is still in an early phase and that the two projects do not have the same aims or methodology.

III. Research hurdles: contentious research area, methodological and ethical dilemmas

Articulating an (unpopular) feminist position and ensuring that research is not manipulated

As mentioned in the introduction, prostitution research poses specific dilemmas and problems for the researcher. First, prostitution is a highly controversial topic in feminism, and generally in public and political discourses. Radical feminists tend to view feminists supporting decriminalisation with hostility, so much so that they often claim that feminists supporting decriminalisation want to ‘sustain women’s exploitation’ (Jeffreys, 1997: 6). They are still one of the strongest voices in the (feminist) debates on prostitution, particularly in Europe, where the European Women’s Lobby supports (neo)abolitionist/prohibitionist polices, which involve the criminalisation of clients. Further, in Croatia, the promotion of the so-called Swedish model is the official consensus position of the women’s movement,(13)  a movement in which I have also been involved. To question this model and engender debate about the alternative model of decriminalisation is not easy. The panel discussion on different prostitution models which we organised at the Ivo Pilar Institute of Social Sciences in Zagreb in April 2015 managed to include different voices, including a radical feminist and, for the first time, a former sex worker, but not many feminist activists came to the most recent panel discussion that was held during the meeting of ProsPol COST Action in September 2016.(14) It remains to be seen how discussions will develop once we disseminate the research results in Croatia, and hopefully include sex workers in the debate on legislative models.

Including sex workers in the public and political debate on prostitution in a criminalised context might be a challenge, as public visibility might have serious consequences for their everyday lives. This poses a question about my responsibility as a researcher and a lawyer with respect to sex workers’ media and public exposure: is explaining the risks sufficient or should the media be excluded from academic events? To illustrate, at the 2015 panel discussion which was open to journalists, one of them misrepresented the story of a sex worker activist who spoke at the event,(15) so at our most recent event we opted for granting access only to journalists whom we trusted and, unlike the first time, had no problems.

A further question about my responsibility as a social justice researcher is how to ensure that the results of research are not manipulated and can feed into policy-making that would respect the agency of sex workers and promote their rights. In addition, how do I convince policy makers to care about the research, in a country where research does not generally have a big impact on policy, and where there is almost no prostitution research?(16) Moreover, prostitution policy, as an area in the moral political domain, is generally not evidence-based, but ‘driven by explicit ideology, almost exclusively owned by the general public, impervious to facts, discussed in emotionally charged language, concerned more with the symbolism of heroic measures than the details of implementation, and prone to sudden policy reversals’ (Wagenaar and Altink, 2012: 285).

These dilemmas concerning my position and responsibilities as a feminist researcher were less present in conducting research with a sex workers’ organisation in the decriminalised environment of New Zealand. First, sex work does not seem to be such a contested topic for feminists in New Zealand,(17) being seen primarily as a sex workers’ rights issue (see Armstrong, 2010; Jordan, 2010; Abel, 2014). Further, collaborative research between academics and sex workers has been going on for decades, and studies have often been commissioned by the government.(18) Moreover, I am not embedded in the feminist and wider community of New Zealand in the same way as I am in Croatia.  On the other hand, my ‘foreignness’ might have been a problem in terms of access to or relationships with the research subjects. Thankfully, this has not been the case, as the NZPC has hosted a number of foreign researchers, but I don’t know whether it would had been equally easy had I chosen to interview sex workers not attached to the NZPC.

This leads me to the question of entering the field, choosing the sample, and the methodological and ethical issues that arise in prostitution research.

Entering the field and managing the risky environment

Sanders (2006) notes that the legal status of prostitution and the actual environment in which it is placed are key considerations when planning access to the field. Indeed, while conducting research in New Zealand did not and could not create any legal problems for either me or the research participants, the situation is different in Croatia. Police raids are frequent on the street, and standing on a ‘suspect street’ is a sufficient cause for arrest, as it transpires from my analysis of the case files of the Misdemeanour Court in the last three years. Further, as I learnt in the early days of the research, some of the participants might be subject to police surveillance, which also heightens my exposure. Moreover, while even in the legal environment walking the stroll might not be risk-free for the wellbeing of a researcher, as was indeed the case in Christchurch where I had to process stories of different types of abuse inside and outside of the industry, illegal environments generally create more risks for the safety and well-being of researchers. I am still not sure how to minimise legal and safety risks for both myself and the participants, and how to recruit them in Croatia.

We thought that we would walk the stroll, as some other researchers did (Shaver, 2005), but an NGO which does outreach work with street-based sex workers warned us that this might be too risky. However, they have not been keen to take us with them either. Our preconception that street-based workers would be over-represented in our study has proven incorrect: until now, we have had more luck with indoor-based workers. As some avenues we counted on closed, unexpected ones opened. We recruited the only sex workers’ rights activist in Croatia, M, to the project, and she has been actively publicising it. She came across a few women who were ready to talk and work for change, which gave me hope that the process is unfolding (even though not in the predicted manner) and that people who are ready to speak will find a way to do so. This experience shows how difficult it is to foresee all the details of the process and how getting too focused on the recruitment plan can actually hinder it. On the other hand, evaluation panels want the details of the sample and the recruitment techniques and can have issues with the representativeness of the sample, as discussed above. But how is a pressure to secure representativeness related to ethics? Do we need to have a diverse sample under all circumstances, or is it better to have people who really want to speak? On the other hand, diversity has its merits, and securing a diverse sample is important if we want to challenge stereotypical representations of sex workers unusually based on data concerning the most vulnerable ones (Shaver, 2005).

In New Zealand I had no problems with access and willingness of people to be involved, as I was interviewing NZPC members. This was not methodologically problematic since my study looked at the role of the NZPC in law reform (and implementation). But relying on gatekeepers, though maybe easiest for the researcher, might not be the best method of recruitment of research subjects in cases where the diversity of the sex workers needs to be reflected and the representativeness of the sample enhanced (Shaver, 2005). The validity of my data on the impact of law reform on the human rights of sex workers and the sex workers’ view of human rights is more questionable, since I only looked at the perspectives of sex workers’ rights activists, who are strong supporters of the PRA. Moreover, as many of them no longer work as sex workers, they might have limited knowledge of the effects of the law. Indeed, if I was to explore this question in a more comprehensive way, I would need to have a more diverse sample. But, should we be looking at participants as a research sample only? What kind of relationships are we, as researchers, developing with them, and how do we manage them? This is the point I discuss in the next section.

Relationships with the research participants

I strongly relate to feminist critiques of traditional positivist epistemology and the research ideal of detached objectivity (see Harding, 1991, who advocates standpoint theory and Harraway, 1988, who explains the theory of situated knowledges). Not only do I align with approaches which point to the situated nature of knowledge and the relevance of the researcher in the research process and hence advocate reflexivity (Granek, 2013; Henwood, 2008), I also see the value of the relationships and connections established in field work outside of the research process. In my opinion (qualitative) research facilitates communication and exchange that has a value beyond expanding (academic) knowledge. As Granek, who advocates for the epistemology of the hyphen,(19) notes: ‘our very beings are constructed and developed in an intersubjective exchange with people we work with’ (Granek, 2013: 191-192). Indeed, while doing research in New Zealand I made strong connections with the NZPC members; private stories were exchanged and strong bonds developed which have enriched my life. What I love about fieldwork is the ability to listen to the stories and possibly make a difference, primarily by witnessing and sharing stories. As Oliver’s (2001) theory of witnessing and ethics notes, all subjects are born out of the process of witnessing and co-constructing each other through empathetic and full listening.

But how we share stories is not value-free and objective: our own positionality comes into play in deciding how to share stories, and certain constraints are imposed by academic journals. As Granek (2013: 189) discusses, emotional and empathetic reporting of research data is not generally encouraged in academic writing, but is ‘an essential, even mandatory component to taking a hermeneutic, empathetic stance in our research relationships and recognizing the intersubjectivity of ourselves with our audiences.' Our style of writing has a profound influence on the type of knowledge we co-create.

But enhancing academic knowledge and publishing academic publications might not be something that participants generally care for. Indeed, one of the participants in Croatia told me explicitly that she does not want simply to share her story – she wants the policy to change. This prompted me to think about the possibilities and limits of the research and to discuss them openly with the participants. After each interview I am trying to (re)define what exactly I hope to do beyond disseminating results and to what extent I should get engaged with other endeavours, such as facilitating sex workers’ organising, providing legal advice or linking them with attorneys at law. The questions that I am dealing with are: how do I keep my boundaries and legitimacy as a researcher, while still caring for the people I work with, and what are the practical implications of my work?

Where is the dividing line between an academic and an activist and what if I cannot fully define myself in either of the available categories? What if we need to transcend both academia and activism as we know it? How can my training as a (human rights) lawyer, experience as a women’s rights activist and my ongoing training as a body-oriented psychotherapist and a dancer help me with answering those questions? What could be the contributions of my empirical work situated within a feminist socio-legal human rights perspective to sex work research and activism and why do I choose to continue doing research in this area, despite the hurdles? I discuss this in the final section.

IV. Concluding observations: importance of feminist, human rights-based prostitution research

Sex workers are a population that has always been regulated by the law in a way that no other population has been. What is common to very different legal regimes, including different forms of prohibitionist, abolitionist and regulationist policies,(20) is the complexity of these systems and the large grey areas of in-between legal and illegal spheres. Further, the implementation of (different) prostitution policies is characterised by wide and often arbitrary exercises of power by the enforcement agencies, whether the police, the council or social welfare, and targeting of the most vulnerable sex workers – those working on the street (Scoular, 2010). Framed differently, all legal regimes have serious human rights implications. Abuses of the human rights of sex workers are common under all regimes, whether we talk about mandatory registration or STD testing under some regimes; threats to safety and risk of homelessness under the criminalisation of clients regimes; or arbitrary arrests and police violence under prohibitionist regimes (for the last point see SWAN, 2015). Further, prostitution polices, particularly their implementation, have a strong gender dimension; not only are the majority of sex workers women, but women and transsexual people often experience more institutional violence (Shaver, 2005). In light of this, we need socio-legal, feminist human rights scholarship to offer comprehensive, methodologically and ethically sound insights into the complex phenomenon of the relationship between law, human rights, gender and sexuality (and their intersection with other systems of oppression) in the area of commercial sex.  

Research is particularly needed in countries where prostitution is criminalised and sex workers’ voices are not heard. As feminists, we are committed to listening to and telling the stories of marginalised women (and transgender people and men). Listening to the stories which are usually not heard can also be transformative for us and challenges our own ideas and preconceptions. Listening to the stories of sex workers may offer us a way forward from the two camp discussions. Also, as feminist lawyers, we need to give visibility to and challenge the human rights abuses that sex workers suffer under criminalised regimes. 

Doing research in these settings, however, poses specific difficulties in terms of accessing the field, securing a diverse sample and reducing the risks for the researcher and the participants, as was shown in this paper. This might be particularly difficult for a legal academic with no formal training in research methods. Nevertheless, dealing with these challenges is personally and professionally highly enriching. Further, feminist, socio-legal human rights research on sex work has the potential to enrich scholarship by challenging the established boundaries. Not only does such research challenge the boundaries between radical and sex-positive feminist camps, and dichotomous thinking on sex work as either violence or work, by exposing the complexities of the lived experiences of sex workers, it also challenges the boundaries between the disciplines and their specific and often closed theoretical and methodological frameworks, as well as the boundaries between academia and activism. Finally, such research has the potential to challenge the boundaries between intellectual and emotional knowledge and between academic research and social (and potentially transformational) interactions between people.

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