On the Simultaneous Having and Eating of Cake

The evil are guilty, and create Law. The good are innocent, and create Justice.  –  Terry Pratchett

Religions and legal regimes insist that the way to make people better is by threatening them with unspeakable cruelty, but in fact this merely stunts individual moral development and very often creates criminals out of ordinary people.  Furthermore, when laws pretend that ordinary behaviors are “criminal”, they force those activities into the shadows where the people who participate in them can be preyed upon by the truly evil or the merely unscrupulous.  Take sex work, for example: criminalization ensures that those who victimize sex workers (such as bad clients, thieves, serial killers, corrupt or rapist cops, abusive pimps and sleazy businesspeople) can inflict harm with impunity, and though legalization regimes may afford some slight protection from actual violence (assuming the cops can be bothered to investigate crimes against sex workers, which they usually can’t), they throw the door wide open to official corruption and unethical business owners who are well-connected and/or good at gaming the system.  And all too often, the laws themselves facilitate this by rewarding exploitative business practices and punishing fair ones.

Escort services are quasi-legal, and though strip clubs are fully legal they are marginalized and the VIP rooms are only quasi-legal.  What I mean by that is, though these businesses are themselves wholly legal, they depend entirely upon activities which are themselves illegal.  Escort services would make far less money if they could and did reliably prevent escorts from selling sex, and the same can be said for VIP room activities.  In order to protect themselves from asinine “pandering” charges, these businesses must therefore hire girls as independent contractors; I had my lawyer draw up an agreement which every escort had to sign, stating not only that she was responsible for her own taxes and such, but also that she agreed not to have sex with clients.  In other words, the ridiculous prostitution laws forced me to be party to a fraudulent contract every time I hired an escort, and forced my escorts to violate that contract every time they went on a call.

This is why virtually all sex workers are independent contractors; the liability created by prostitution laws in general and “pandering” or “avails” laws in particular is so great that no business can afford it.  But while ethical business owners like me understand and accept the drawbacks to using only contractors, unethical owners (and there are many) want the advantages of the contractor relationship without the disadvantages.  In other words, they want to call their girls “contractors” on paper, yet treat them like employees in fact, and without the expenses and liabilities inherent in the employer-employee relationship.  This is very common among bad escort service owners, but it’s epidemic in strip clubs, and a recent lawsuit called attention to that fact:

A federal court has approved a…$13 million settlement in a nationwide class-action lawsuit initiated by women who worked as exotic dancers for the Spearmint Rhino adult nightclub in Oxnard [California]…Christeen Rivera and Tracy Dawn Trauth…claimed they were wrongly treated as independent contractors rather than employees entitled to benefits.  They sought back wages, tips, attorney fees and damages.  According to the suit, the women each earned an average of $500,000 a year in tips for lap and table dances.  But the dancers alleged most of the money went to the club to cover “rent,” the disc jockey, stage fees, overhead costs and even penalties if they didn’t get enough men to purchase drinks during a shift.  In addition to the financial hit…the clubs have agreed that within six months they will no longer treat dancers as independent contractors or lessees, but as employees, shareholders, partners or some type of owner.  In California specifically, dancers will no longer be charged stage fees…Rivera and Trauth were eventually joined by 12 other Spearmint Rhino dancers who agreed to be named as class representatives in the lawsuit.  Each of them will get an “incentive award” of $1,000 to $15,000 for the time they spent on the case and the personal and professional risk they took in allowing their names to be used.  The rest of the dancers’ share of the $12.97 million settlement will be divvied up among an unknown number of dancers in six states who end up filing claims…

In every country where sex workers have won rights, the struggle was framed and presented as a labor issue (hence the slogan “sex work is work”); only in the United States is the emphasis consistently placed on the “sex” rather than the “work”.  But if lawsuits like this one keep succeeding that may change, not just for “legal” sex workers but eventually for “illegal” ones as well.  Once sex work is finally recognized as legitimate labor, those who work for larger businesses (strip clubs, brothels, escort services, etc) will be protected by labor laws just as other workers are, businesses will no longer be forced to call all of the help “contractors” even if they prefer to have employees, and honest businesspeople will be able to ostracize dishonest ones just as they do in other areas of commerce.