In interpreting the Thirteenth Amendment in contemporary peonage contexts, courts have been far less concerned with whether the condition was voluntarily entered and far more with whether the subsequent service was involuntary. (43) That victims believe they have no viable alternative but to serve in the ways in which they are being forced has also supported a finding of coercion, and with it the conclusion that the condition is one of enslavement. (44) Involuntary servitude has embraced situations in which a person has made a difficult but rational decision to remain in bondage.(45)

If the legal standards for involuntary servitude developed outside the sexual context are applied to the facts of prostitution, the situations of most of the women in it are clearly prohibited. In prostitution, human beings are bought and sold as chattel for use in "distinctly personal service."

(46) Many women and girls are sold by one pimp to another as well as from pimp to trick and for pornography. Prostitution was not formerly called "white slavery" for nothing. (47)

Prostitution occurs within multiple power relations of domination, degradation, and subservience (48) of the pimp and trick over the prostitute: men over women, older over younger, citizen over alien, moneyed over impoverished, violent over victimized, connected over isolated, housed over homeless, tolerated and respected over despised. All of the forms of coercion and vulnerabilities recognized under the Thirteenth Amendment are common in prostitution, and then some. No social institution exceeds it in physical violence. It is common for prostitutes to be deprived of food and sleep and money, beaten, tortured, raped, and threatened with their lives, both as acts for which the pimp is paid by other men and to keep the women in line. (49) Women in prostitution are subject to near total domination. Much of this is physical, but pimps also develop to a high art forms of nonphysical force to subjugate the women's will. Their techniques of mind control often exploit skills women have developed to survive sexual abuse, such as denial, dissociation, and multiplicity. They also manipulate women's desire for respect and self-respect.

Criminal laws against prostitution provide legal force behind its social involuntariness. Women in prostitution have no police protection because they are criminals, making pimps' protection racket both possible and necessary. In addition to being able to inflict physical abuse with impunity, pimps confiscate the women's earnings and isolate them even beyond the stigma they carry. The women then have nowhere but pimps to turn to bail them out after arrest, leaving them in debt for their fines which must be worked out in trade. Thus the law collaborates in enforcing women's involuntary servitude by turning the victim of peonage into a criminal. (50) Such legal complicity is state action, raising a claim under the Fourteenth Amendment for sex discrimination by state law. (51)

While it is dangerous to imply that some prostitution is forced, leaving the rest of it to seem free, as a matter of fact, most if not all prostitution is ringed with force in the most conventional sense, from incest to kidnapping to forced drugging to assault to criminal law. Sex-based poverty, both prior to and during prostitution, enforces it; while poverty alone has not been recognized as making out a case of coercion, it has been recognized as making exit impossible in many cases in which coercion has been found. If all of the instances in which these factors interacted to keep a woman in prostitution were addressed, there would be little of it left.

Beyond this, the Thirteenth Amendment may prohibit prostitution as an institution. In the words of The Three Prostitutes' Collectives from Nice, "all prostitution is forced prostitution . . . we would not lead the 'life' if we were in a position to leave it." (52) In this perspective, prostitution as such is coerced, hence could be prohibited as servitude. At the very least, there is authority for taking the victims' inequality into account when courts assess whether deprivation of freedom of choice is proven. (53)

On a few occasions in the past, the Thirteenth Amendment has been used to prosecute pimps for prostituting women.(54) In these federal criminal cases, the prostitution was forced in order to pay a debt the women supposedly owed the pimp. In one case, the defendant procured two women from a prison by paying their fines and then forced them to repay him by prostituting at his road house. (55) In another, young Mexican women were induced to accept free transportation to jobs which did not exist and then were told they could not return home until they repaid the cost of the transportation through prostitution. (56) These women were financially trapped, sometimes physically assaulted, always threatened, and in fear. Some complied with the prostitution; some were able to resist. In these cases, the prostitution as such was not considered involuntary servitude--the coercion into doing it was. But it is implicit in these cases that prostitution is not something a woman, absent force, would choose to do.

It is worth asking whether coercion of women into sex in a Thirteenth Amendment context would be measured by the legal standards by which courts have measured the coerciveness of nonsexual exploitation of groups that include men. The coercion of women into and within prostitution has been invisible because prostitution is considered sex and sex is considered what women are for. The standards for the meaning of women's "yes" in the sexual context range from approximating a dead body's enthusiasm, to fighting back and screaming "no," to pleading with an armed rapist to use a condom. (57) This being free choice, one wonders what coercion would look like. Sex in general, particularly sex for survival, is so pervasively merged with the meaning of being a woman that whenever sex occurs, under whatever conditions, the woman tends to be defined as freely acting.

Suits for prostitution as involuntary servitude confront the notion that women--some women who are "just like that" or women in general--are in prostitution freely. No condition of freedom is prepared for by sexual abuse in childhood, permits and condones repeated rapes and beatings, and subjects its participants to a risk of premature death of forty times the national average. (58) The fact that most women in prostitution were sexually abused as children, (59) and most entered prostitution itself before they were adults, (60) undermines the patina of freedom and the glamour of liberation that is the marketing strategy apparently needed for most customers to enjoy using them. Such suits would also challenge freedom of choice as a meaningful concept for women under conditions of sex inequality. Women's precluded options in societies that discriminate on the basis of sex, including in employment, are fundamental to the prostitution context. If prostitution is a free choice, why are the women with the fewest choices the ones most often found doing it? (61)

When a battered woman sustains the abuse of one man for economic survival for twenty years, not even this legal system believes she consents to the abuse anymore. Asking why she did not leave has begun to be replaced by noticing what keeps her there. (62) Perhaps when women in prostitution sustain the abuse of thousands of men for economic survival for twenty years, this will, at some point, come to be understood as non-consensual as well. And many do not survive. They are merely kept alive until they can no longer be used. Then they are sold one last time to someone who kills them for sex, or they are OD'd in an alley or otherwise end up under those trash heaps in Detroit.

The fact that the coercion in prostitution will be difficult to establish in law when it is so overwhelmingly obvious in life is both why it would be difficult to win these cases and why it is crucial to try. It is also helpful to be trying in a legal context such as the Thirteenth Amendment that has traditionally emphasized less how one was subjected in the first place and more the barriers to leaving the subjected state.

The best thing about criminal law is that the state does it, so women do not have to. The worst thing about criminal law is that the state does not do it, so women still have to. Fortunately for women, the Thirteenth Amendment has a civil application, meaning we can use it ourselves. Under § 1985(3), prostituted women could allege that they have been subjected to a conspiracy to deprive them of civil rights as women. The conspiracy is the easy part--pimps never do this alone. In a supply-side conspiracy, they prostitute women through organized crime, gangs, associations, cults, families, hotel owners, and police. There is also a demand-side conspiracy, more difficult to argue but certainly there, between pimps and tricks.

Long unresolved is whether § 1985(3) applies to conspiracies on the basis of sex. In a recent case, the Supreme Court held that the group "women who seek and receive abortions" was not an adequate class for purposes of § 1985(3) because it was not based on sex. (63) The court did not say that sex-based conspiracies are not actionable under § 1985(3); several members of the court said that they are. Prostituted women are an even more persuasive sex-based class. How hard can it be to prove that women are prostituted as women? Not only is prostitution overwhelmingly done to women by men, every aspect of the condition has defined gender female as such and as inferior for centuries. Evelina Giobbe explains how the status and treatment of prostitutes defines all women as a sex: "[T]he prostitute symbolizes the value of women in society. She is paradigmatic of women's social, sexual, and economic subordination in that her status is the basic unit by which all women's value is measured and to which all women can be reduced." (64) As Dorchen Leidholdt puts it: "What other job is so deeply gendered that one's breasts, vagina and rectum constitute the working equipment? Is so deeply gendered that the workers are exclusively women and children and young men used like women?" (65) In addition, the fact that some men are also sold for sex helps make prostitution look less than biological, less like a sex difference. Treatment that is socially and legally damaging and stereotypical that overwhelmingly burdens one sex, but is not unique to one sex, is most readily seen as sex discrimination.

A civil action under § 1985(3) would allow prostituted women to sue pimps for sexual slavery, refuting the lie that prostitution is just a job. Slavery is a lot of work, but that does not make it just a job, picking cotton being just picking cotton. The enforced inequality is the issue.

In addition to these legal tools, the law against pornography that Andrea Dworkin and I wrote gives civil rights to women in prostitution in a way that could begin to end that institution. (66) Pornography is an arm of prostitution. As Annie McCombs once put it to me, when you make pornography of a woman, you make a prostitute out of her. The pornography law we wrote is concretely grounded in the experience of prostituted women; women coerced into pornography are coerced into prostitution. It is also based on the experience of women in prostitution who are assaulted because of pornography. Beyond this, under its trafficking provision, any woman, in or out of prostitution, who can prove women are harmed through the materials could sue pornographers for trafficking women. This provision recognizes the unity of women as a class rather than dividing prostituted women from all women. The precluded options that get women into prostitution, hence pornography, affect all women, as does the fact that pornography harms all women, if not all in the same way.

Subordination on the basis of sex is key to our pornography law. Pornography is defined as graphic sexually explicit materials that subordinate women (or anyone) on the basis of sex. Women in prostitution are the first women pornography subordinates. In its prohibition on coercion into pornography, in making their subordination actionable, this law sets the first floor beneath the condition of prostituted women, offers the first civil right that limits how much they can be violated. It does not do all that they need, but it is a lot more than the nothing that they have.

This law uses the artifact nature of pornography to hold the perpetrators accountable for what they do. Before this, the pictures have been used against women: to blackmail them into prostitution and keep them there, as a technologically sophisticated way of possessing and exchanging women as a class. Under this law, the pornography becomes proof of the woman's injury as well as an instance of it.

Because pornography affects all women and connects all forms of sexual subordination, so does this law. And this law reaches the pornography. The way subordination is done in pornography is the way it is done in prostitution is the way it is done in the rest of the world: rape, battering, sexual abuse of children, sexual harassment, and murder are sold in prostitution and are the acts out of which pornography is made. Addressing pornography in this way builds a base among women for going after prostitution as a violation of equality rights.

For years I have been saying that I do not know what to do, legally, about prostitution. I still do not. State constitutions and human rights remedies could be adapted to use the argument I offer here. The Florida statute Meg Baldwin wrote and got passed is brilliant and is beginning to be used by women. (67) Recent international initiatives build on superb long-term work and support these efforts. (68) I do know that we need to put the power to act directly in women's hands more than we have. (69)

These thoughts are offered to honor Evelina Giobbe's demand for an institutional policy response to the reality of prostitution, toward the civil rights all women are entitled to.

Footnotes

(42) Case of Mary Clark, 1 Blackf. 122 (Ind. 1821). See generally Hamilton, supra note 29. BACK

(43) See, e.g., Mussry, 726 F.2d 1448. The later ruling by the Supreme Court in Kozminski, 487 U.S. 931, restricting Mussry doctrines does not cut back on this aspect of the courts' customary approach to this issue. BACK

(44) United States v. King, 840 F.2d 1276, 1281 (6th Cir.1988), cert. denied, 488 U.S. 894 (1988) (finding a conspiracy to deprive children living in a religious commune of rights under Thirteenth Amendment, in part because of a belief by the children that they "had no viable alternative but to perform service for the defendants."). When physical force is also present, Kozminski poses no barrier to prosecution. Id. at 1281. BACK

(45) United States v. Bibbs, 564 F.2d 1165, 1168 (5th Cir.1977), cert. denied, 435 U.S. 1007 (1978). BACK

(46) Hamilton, supra note 29, at 7. BACK

(47) This term was apparently used originally to parallel and distinguish prostitution of all women, including women of color, from slavery of Africans as such. Traite des Noires, trade in Blacks, referred to slavery of Blacks; in 1905, Traite des Blanches, trade in whites, was used at an international conference to refer to sexual sale and purchase of women and children. Marlene D. Beckman, Thc White Slave Traffic Act: The Historical Impact of a Criminal Law Policy on Women, 72 GEO. L.J. 1111 n.2 (1984) (citing V. BULLOUGH, PROSTITUTION: AN ILLUSTRATED HISTORY 245 (1978)); KATHLEEN BARRY, supra note 4, at 32 (1979). The British government translated the latter term as "White Slave Traffic or Trade," then shortened to white slavery. Beckman, supra at 1111 n.2 (quoting BULLOUGH, at 245). Whatever its initial intent, the appellation "had immediate appeal to racists who could and did conclude that the efforts were against an international traffic in white women," although women of all colors were exploited in prostitution. BARRY, supra note 4, at 32. Kathleen Barry further observes that the 1921 substitution of the term "Traffic in Women and Children" for white slavery worked to separate international trafficking in women from local prostitution, "thereby distracting attention from the continuing enslavement of women in local prostitution." BARRY, supra note 4, at 32-33. Recognizing prostitution as unconstitutional slavery would help restore this attention. BACK

(48) Here I draw on Akhil Amar's and Daniel Widawsky's proposed working definition of slavery. Akhil Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 HARV. L. REV. 1359, 1365 (1992). BACK

(49) See generally Leidholdt, supra note 28; BARRY, supra note 4, at 3-5; Activities for the Advancement of Women: Equality, Development and Peace, U.N. ESCOR, 1st Sess., Provisional Agenda Item 12, at 7-8, U.N. Doc. E/1983/7 (1983). BACK

(50) For analogous situations, see Jaremillo v. Romero, 1 N.M. 190, 197-99 (1857) (involuntary servitude formally sanctioned by law). See also Taylor v. Georgia, 315 U.S. 25, 29-31 (1942) (striking down state laws which did not sanction involuntary servitude directly, but played a key role in it). BACK

(51) This raises a civil claim under 42 U.S.C. § 1983 (1981) and potential criminal prosecution under 18 U.S.C. § 242 (Supp.1992). BACK

(52) Activities for the Advancement of Women: Equality, Development and Peace, supra note 49, at 8 (quoting testimony by three "collectives" of women prostitutes given to the Congress of Nice on September 8, 1981). BACK

(53) The Peonage Cases, 123 F. 671, 681 (M.D. Ala. 1903) (stating that the trier of fact "must consider the situation of the parties, the relative inferiority or inequality between the person contracting to perform the service and the person exercising the force or influence to compel its performance . . . ."). BACK

(54) See, e.g., Pierce v. United States, 146 F.2d 84 (5th Cir.1944), cert. denied, 324 U.S. 873 (1945); Bernal v. United States, 241 F. 339 (5th Cir.1917), cert. denied, 245 U.S. 672 (1918). Scc also United States v. Harris, 534 F.2d 207, 214 (10th Cir.1975), cert. denied, 429 U.S. 941 (1976) (upholding conviction for involuntary servitude in prostitution context). BACK

(55) Pierce, 146 F.2d at 84. BACK

(56) Bernal, 241 F. at 341. BACK

(57) A grand jury in Austin, Texas failed to indict a man for rape where the victim asked him to wear a condom. Apparently, the woman's request somehow implied her consent. Ross E. Milloy, Furor Over a Decision Not to Indict in a Rape Case, N.Y. TIMES, Oct. 25, 1992, § 1 at 30. A second grand jury did indict the man for rape and he was later convicted in a jury trial. Rapist Who Agreed to Use Condom Gets 40 Years, N.Y. TIMES, May 15, 1993, § 1 at 6. BACK

(58) For data on rape in prostitution, see Leidholdt, supra note 28, at 138; Mimi H. Silbert & Ayala M. Pines, Occupational Hazards of Street Prostitutes, 8 CRIM. JUST. BEHAV. 395, 397 (1981) (70% of San Francisco street prostitutes reported rape by clients an average of 31 times); COUNCIL FOR PROSTITUTION ALTERNATIVES, 1991 ANNUAL REPORT 4 (48% of prostitutes were raped by pimps an average of 16 times a year, 79% by johns an average of 33 times a year). For data on beatings, see Silbert & Pines, supra at 397 (65% of prostitutes beaten by customers); COUNCIL FOR PROSTITUTION ALTERNATIVES, supra at 4 (63% were beaten by pimps an average of 58 times a year). For data on mortality, see PORNOGRAPHY AND PROSTITUTION IN CANADA: REPORT OF THE SPECIAL COMMITTEE ON PORNOGRAPHY AND PROSTITUTION, VOLUME II 350 (1985) (finding that in Canada the mortality rate for prostituted women is 40 times the national average); Leidholdt, supra note 28, at 138 n.15 (the Justice Department estimates that a third of the over 4,000 women killed by serial murderers in 1982 were prostitutes). BACK

(59) See Mimi H. Silbert & Ayala M. Pines, Entrance into Prostitution, 13 YOUTH & SOCIETY 471, 479 (1982) (60% of prostitutes were sexually abused in childhood); Leidholdt, supra note 28, at 136 n.4 (quoting MIMI SILBERT, SEXUAL ASSAULT OF PROSTITUTES: PHASE ONE 40 (1980)) (66% of subjects are sexually assaulted by father or father figure); THE COUNCIL FOR PROSTITUTION ALTERNATIVES, 1991 ANNUAL REPORT 3 (85% of clients have histories of sexual abuse in childhood, 70% most frequently by their fathers). BACK

(60) See CECILIE HOIGARD & LIV FINSTAD, BACKSTREETS: PROSTITUTION, MONEY, AND LOVE 76 (Katherine Hanson et al. trans., 1992) (average age of prostitutes interviewed in Norway began at 15 1/2 years). Compare Leidholdt, supra note 28, at 136 n.3 (citing Evelina Giobbe, founder of Minneapolis-based advocacy project, Women Hurt in Systems of Prostitution Engaged in Revolt (WHISPER)) (fourteen is the average age of women's entry into prostitution); Roberta Perkins, Working Girls: Prostitutes, This Life and Social Control 258 (1991) (finding in her Australian sample that almost half entered prostitution before age 20, and over 80% before age 25); Mimi H. Silbert & Ayala M. Pines, Occupational Hazards of Street Prostitutes, 8 CRIM. JUST. BEHAV. 395, 396 (1981) (68% were 16 years or younger when entered prostitution). BACK

(61) For a superb discussion of the "choice" illusion, see Leidholdt, supra note 28, at 136-138. BACK

(62) For an argument that domestic battery of women is involuntary servitude, see Joyce E. McConnell, Beyond Metaphor: Battered Woman, Involuntary Servitude, and the Thirteenth Amendment, 4 YALE J.L. & FEMINISM 207 (1992). BACK

(63) Bray v. Alexandria Women's Health Clinic, 122 L. Ed. 2d 34, 46, 47 n.2 (1993). BACK

(64) Evelina Giobbe, Confronting the Liberal Lies about Prostitution, in THE SEXUAL LIBERTY AND THE ATTACK ON FEMINISM 67, 77 (Dorchen Leidholdt & Janice G. Raymond eds., 1990). BACK

(65) Leidholdt, supra note 28, at 138-39. BACK

(66) See ANDREA DWORKIN & CATHARINE A. MACKINNON, PORNOGRAPHY & CIVIL RIGHTS: A NEW DAY FOR WOMEN'S EQUALITY apps. A, B, & C (1988). BACK

(67) FLA. STAT. ch. 796.09 (1992) (providing a cause of action for those coerced into prostitution to sue their pimps for compensatory and punitive damages). See Margaret A. Baldwin, Strategies of Connection: Prostitution and Feminist Politics, 1 MICH. J. GENDER & L. 65, 70 (1993) (reporting that several cases utilizing this statute are currently underway at the discovery stage prior to filing). BACK

(68) See Gayle Kirshenbaum, A Potential Landmark for Female Human Rights, Ms., Sept./Oct. 1991, at 13 (report on proposed U.N. Convention Against All Forms of Sexual Exploitation). BACK

(69) The proposed Sexual Exploitation convention would require states' parties to adopt legislature to "hold liable" traffickers in pornography. International Convention to Eliminate All Forms of Sexual Exploitation, Sept. 1993, Art. 6(d). BACK