Desexualizing the Law: A Way Out for Hong Kong?

By: Dr. CHIU Man-Chung
      Ziteng (Hong Kong)

Ziteng is a sex worker concern group in Hong Kong which affirms that sex work is a kind of work sharing the same social status as any other businesses. It is a non-governmental organization formed by people of different working experiences, including social workers, labour activists and researchers specializing in gender studies etc. who have one common concern: interest and rights of sex workers.

The law controlling sex work in Hong Kong, like the one in the United Kingdom, follows the teaching of Wolfenden Report: although the law decriminalizes sex trade, all activities related to it (for example: living on earnings of prostitution or keeping a vice establishment) are criminal offences. The attitude of law towards sex work is in fact a reproduction of the mainstream sexual standard and moral regulations derived from the patriarchal social structure. Under the system, woman should be sexually loyal towards her (future) husband; female sex workers are therefore marginalized and pathologized as they do not belong particularly to any male master in particular. Female sex workers thus become a threat within the web of the (supposed to be) stable marital-familial politics – they are promiscuous and tempting; men (especially husbands) who could not effectively control their sexual desire will become their ‘victims’ very easily.

Adopting the above analysis, feminists in Hong Kong (for example, Reach Out) point out that sex work constitutes the male exploitation of women’s bodies; and this line of argument is recognized and reconstructed by law – only the (fe/male) sex workers, but not the clients, would be penalized. Feminists argue that, under this socio-legal mechanism, women are commodified and exploited. Feminists therefore do not oppose the enactment of legal regulations which imposes tight control on the industry. However, they propose that the government should also offer counseling and assistance to the sex workers so that they could leave the industry and lead a different life.

While feminists argue that in sex work, female sex workers are objectified and dehumanized, postmodernism reminds us that absolute powerless / domination does not exist: for those sex workers who can choose their clients and jobs, it is obvious that they are not dominated or overpowered by clients..

Foucault, a postmodern philosopher, emphasized the significance of discourse in the constitution of subjectivity. In other words, there is no essential and monolithic notion of sex worker (/ client) and differences exist among workers (clients) – for example, besides female sex workers, there are also transgender / male sex workers. They can provide different types of services (vanilla sex, oral sex, anal sex, hand job, SM…) for different groups of clients (non-heterosexual / heterosexual / women / men / transgender…). ‘Sex worker’ is not a ‘coherent’ concept but a subjectivity with multiple-diversified differences. It is therefore impossible to provide a monolithic theoretical perspective for sex work research and related legal reforms. Postmodern argument is particularly relevant in the Hong Kong context: the sex workers in Hong Kong, besides being classified by their target clients / services, can also be categorized by their residential status – the local sex workers and the migrant sex workers who come to work in Hong Kong without a legal working permit. The difference produces different legal reform agendas: while both local sex workers and expatriate sex workers are concerned about the particular law that controls sex work, the latter have to further consider the legal consequence of violating the immigration law.

Regarding the local law that controls sex work, it seems that the choices of legal reform are limited to either ‘total’ decriminalization or legalization (for example: establishment of lawful ‘red light district’). The former means complete decriminalization of all acts related to sex work; the latter asks for legal recognition of sex work. Both ideas, however, are not welcomed: ‘total’ decriminalization on one hand is opposed by Hong Kong people in general; the idea of legalization on the other hand is not supported by sex workers as that probably means tighter control (for instance: a request of parental consent or a restricted application of sex worker’s license.) It is in this context where the author proposes that the Foucauldian desexualization should be adopted as a legal reform strategy.

Desexualization advocates that sexuality should no longer be restricted or controlled by legal stipulations. Following this idea, prostitution is not simply decriminalized or legalized, but becomes a common ‘occupational choice’ just like other forms of work. The industry could be regulated like other businesses despite its close and frequent interaction with sexuality / sexual action. In other words, desexualization goes beyond the over-simplified dichotomy of ‘legalization’ and ‘decriminalization’. Please note that: desexualization is not ‘deregulation’. Sex work would still be regulated by law, but managed by the same set of rules like other businesses. Sex workers can enjoy legal rights and lawful protection just like other workers. Legal desexualization of prostitution makes prostitution a profession which people can join and leave without being pressured by any kind of coercion or suppression.

Desexualization of the law which regulates sex work would also remove the obstacles of importing overseas sex workers. It also means that sex workers can apply for work permits: at present, they are ‘forced’ to break the immigration law as there is no legal procedure for them to come and work in Hong Kong lawfully: they work with a travel visa and breach the condition of stay. Further, the desexualization strategy can also remove the discriminatory attitude against sex work and sex workers as it is no different from other jobs -- sex workers can share their experience and feeling with their friends and family comfortably, they can also report to police if they are abused by clients, raped by strangers, suppressed by triad members or blackmailed by corrupted authorities.

However, desexualization is not everything. The strategy cannot sensitize law towards the particularities of sex industry: the protections, rights or support which are necessary to sex workers can be very different from the needs of workers in other industries: they need medical knowledge related to HIV / AIDS and other STDs. The kind of medical advice and insurances requested are also different. They also need the knowledge of relevant law. How to strike a balance between commonization / desexualization of sex work and sensitisation towards particular needs of sex workers is a tricky issue and certainly needs more in-depth research.