This month, we review two fantastic books: Lydia’s Open Door: Inside Mexico’s Most Modern Brothel by Patty Kelly and Addressing Rape Reform in Law and Practice by Susan Caringella. Thanks to Martin Schwartz and Mark DeBarr for serving as reviewers.
Caringella, Susan. 2009. Addressing Rape Reform in Law and Practice. New York: Columbia University Press.
Reviewer: Martin D. Schwartz, Ohio University
For some reason, within the Violence Against Women literature rape analysis has gone slightly out of fashion. After a wide selection of provocative feminist books and articles in the 1980s and to some degree the 1990s, the field seems to have moved on to physical violence and battering, leaving rape behind. One of the things that struck me while reading this book is that although it is as up to date as possible, every one of the important and central works that informs this book are from this earlier period (if not the 1970s). This isn’t to attack the research here, but to show how badly this book (and others) are needed.
Caringella, who has been an important figure in teaching, writing and advocating on rape for many years, has produced here her magnum opus – her review of the field of rape law reform. She has spent her entire career in Michigan, where in 1974 the first, and possibly still the best, modern rape law reform was put into effect, putting her at the center of what became (more or less) the model for the entire United States. Through the 1980s, every state in the Union (plus all of Canada and every English speaking jurisdiction in the world) changed their rape laws for the better, whether they were drastically revising them or tinkering. After that most of the feminist rape law reformers packed up their tents with a satisfied smile and went home.
As early as 1982 Marsh, Geist and Caplan had published an important book suggesting that the law had not accomplished all that people had hoped. Caringella takes up the story, critically analyzing these reforms, and the net results. Simply put, these sometimes drastic law reforms did make it somewhat easier for the state to obtain convictions in the most egregious cases: where a stranger stereotypically jumps out of the bushes, armed with a weapon, and commits a rape by force. Susan Estrich famously called these “real rapes,” meaning that they are the only ones that people pay attention to. Unfortunately, Caringella’s conclusion is that in the overwhelming majority of cases, where the rapist was not a stranger, where overpowering force with a weapon was not used, where massive injury did not result, there has not been all that much change. The “unfounded” rate is as high as ever, and the conviction rate is perhaps lower than ever. This might be because more arrests (that later fail) are being made, but it is still worrisome.
One problem is that the American system of justice is built on discretion, which leaves a patriarchal system of defense attorneys, rapists, and misogynist criminal justice officials to duck and weave their way around the legal changes that feminist reformers thought they were instituting. We may have thought that by eliminating the absolute requirement of the victim to prove lack of consent we had lessened the burden of raped women, but judges, juries, prosecutors and police are still making decisions where the concept is central. Of course, there are still jurisdictions where rape is completely legal if the overwhelmed woman in panic for her life (what Peggy Reeves Sanday called “frozen fright”) or perhaps as a product of a culture of deference to men, does not loudly and verbally protest her ongoing rape. As Caringella points out, this concept, based on what a “reasonable person” would do, is in fact based on a “reasonable man,” not what is reasonable to many women.
Into this fray, Caringella first develops one of the most comprehensive and complete analyses of what a rape law can and should do. Then she moves to her own model, a middle position of political compromise. She sees the extremes as a weak position, based on reforming rape law more with an eye to the symbolic or educational attainments than to any real changes in behavior or outcomes. The other extreme incorporates an aim of radical change in legal ideology or social ideology to stop rape, which so far has remained completely unlikely to ever be enacted. Essentially, her argument is that in a climate of limited support for women’s already guaranteed rights, basing reform demands on the granting of new rights unsupported by most of the population is a recipe for failure. Her position, which she terms “feminist left realism,” suggests changes in the rules of evidence and jury instructions that would hold some hope of changing outcomes to better match the law reforms already on the books. She takes the position that many of our most recent changes contain within themselves contradictions that allow the back door introduction of evidence that is seemingly forbidden. Perhaps most important is the notion of consent, which if not carefully delineated in the statute allows the judiciary to use older notions, such as the judges who have ruled that submission under fear and coercion can, nevertheless, be seen as voluntary submission that is freely given.
There is much more to her model than this, but the important point is that this is a major contribution to the literature. Outside of Susan Estrich’s somewhat flawed approach from the 1980s, it ties the best legal and sociological analysis of the past 20 years to the only (and most comprehensive) political agenda for reform that is based on realistic changes that hold promise to make women’s treatment and conditions better. It is a tremendous resource for courses in violence against women, women’s studies, women and the law, and many other fields. Even for those only marginally interested in the law, I have found that my own students develop much better comprehension of the issues involved with a copy of their own state’s law in front of them. Caringella’s tour de force analysis (when compared to the real law in front of you) brings to life a variety of issues around feminist politics, the legal and social position of women in society, and the meaning and value of using the law as an instrument of reform.
Kelly, Patty. 2008. Lydia’s Open Door: Inside Mexico’s Most Modern Brothel. Berkeley: University of California Press.
Reviewer: Mark DeBarr, University of Missouri, St. Louis
In her recent book, Lydia’s Open Door, Patty Kelly argues that state-regulated prostitution, promoted as a modern, liberating (and revenue generating) solution to the illicit sex industry, in practice “controls and criminalizes women who defy cultural norms by selling sexual services and its health and social benefits are questionable at best” (p 3). To do so, Kelly examines the legal sex trade in a Mexican city within the context of the global economy; the commodification of “services” ultimately stigmatizes the sex workers employed within the organization. In addition, she suggests that the health and social benefits touted by the government are illusory when examining the unintended consequences visited upon the sex workers, as well as the clients who patronize them. She concludes that legalization of the sex trade perpetuates the stigmatization of an already marginalized population of poor women, creates unique health risks for the public, and ultimately imprisons women in something akin to a manifestation of Max Weber’s theoretical iron cage, or as Kelly writes “… free trade and free markets do not make free people” (p 4) .
With Lydia’s Open Door, in a refreshing change of pace, Kelly focuses less on the debate over sex work as a form of work and prostitution as a form of exploitation and coercion as the result of limited economic opportunity. Drawing upon a twelve month ethnographic study of a legal brothel located in the southern Mexican state of Chiapas, Kelly instead provides a first-hand account of how neo-liberal global economic forces influence the women who seemingly choose their occupation, but on a deeper level are simply trying to survive in a rapidly changing economy. Kelly begins her analysis by providing a quick look at the global and historical factors which created the neo-liberal policies in Mexico and subsequently produced the Zona de Tolerencia ‘the zone of tolerance’ (the area where the brothel is located) and the brothel itself, known as the Zona Galactica (euphemistically invoking a modern image). Kelly argues that the global competition for low wage, low skilled manufacturing jobs creates downward pressure on the standard of living, while at the same time, extending the consumerist ethos and desire for modern conveniences among citizens. This trend creates a system in which the poor turn to whatever occupations are available in an attempt to survive economically. The women who work in the Zona, as Kelly argues, can be viewed as any other underpaid, exploited workforce. However, due to their unique occupation, the women labor legally for lower wages than their illegal counterparts and yet must still bear the stigma of a sex worker, regardless of the regulatory environment or social benefits promoted by the government.
After discussing the political adaptation to the global neo-liberal economic climate which led to the creation of the Zona, Kelly turns to a description of the local realities of the sex trade. The Zona is administered by the municipal government of the town of Tuxtla Gutierrez, whose interest in the creation of the Zona in 1991 was part of a program to regulate and control prostitutes. Sex workers, an already marginalized population, are associated with crime and deviance, a belief that the government perpetuates as part of the dichotomous reasoning for the Zona’s creation. Raids on local bars and night clubs to target illicit prostitution are made with a disproportionate show of police power, thus symbolically reminding the public of the governments’ monopoly on control of the industry. The continued raids and harassment of prostitutes, while pimps and clients go free, is a direct reflection of the patriarchal system that seeks to control the marginal population of male and female sex workers and their sexual labors, while the continued spectacle of force is intended as a “showcase of state power in the capital of one of Mexico’s poorest states” (p 48).
As for the health benefits so often cited by the government as the reason for creation and maintenance of the Zona, Kelly details one of the most basic health related issues: the use of condoms. When the Zona first opened, clients would receive one condom with their admission ticket. Unfortunately, many of these condoms ended up in the trash or blown up as balloons, and never even made it to the women’s private rooms. After several years, the women had to go on strike in order to wrest control of the condom supply away from the Zone administration. The government relented and began rationing the condoms directly to the workers. However the solution presented new problems: scarcity and market competitiveness. If a woman runs out of condoms, the issue becomes simple economics: either purchase more and absorb the costs or agree to unprotected sex with a client. Unprotected sex then becomes a marketing decision instead of a health decision. Because unprotected sex becomes an option, clients often will go woman to woman, door to door, offering to pay a premium for it, or simply pressure for unprotected sex once behind closed doors. Thus, Kelly suggests, the use of condoms became another analogy of the sex worker’s situation: though they have choices, they do not get to choose the choices presented to them in the first place.
Kelly further argues that, just like the condoms, the stated health benefits of a regulated sex trade, while promoted as ‘safe’ via health certification, in practice create unsafe situations for the workers and the visitors to the Zona. Though the workers are examined regularly by a physician, the incubation period of many diseases and sheer number of clients prior to diagnosis equate to a large number of men (and their wives or partners) who may be put at risk long before an illness is discovered. The result of providing health certifications to the workers of the Zona is the belief amongst clients that the sex workers are in fact free of disease, which subsequently perpetuates the previously mentioned issue of negotiating for unsafe sex. This faith in the health certification of the sex workers is further manifested in the common practice that the first sexual encounter for an adolescent boy is with a Zona worker. “Young men come or are brought to the zone to learn cultural norms regarding sexuality, their roles as men, and desire” (p 176). Kelly tells of a young boy, no older than thirteen, accompanied to the zone by an older man. When Kelly asks the gate attendant about them, he says it’s “for his development”. This “development” further perpetuates the marginalization of the sex workers by teaching the young men gender and power inequalities and initiating them into the role of consumer of sexual services.
The façade of health care for the women further crumbles upon the realization that the system does not have a safety net which would proactively protect women, such as testing the men prior to their visiting the Zona. Furthermore, once a worker is found to be infected, they are kicked out, unable to obtain certification, back into the very society that has stigmatized them. In turn, many of these infected women turn to illicit prostitution which, sardonically, provides the women control over their wages and working conditions not available in the controlled confines of the Zone of Tolerance. In a vicious circular logic, women who cannot earn their health certificates (but still bear the stigma of the sex worker) are forced out only to work illicitly, subsequently leading to punitive action as being identified as examples of the criminal element, which in the end, solidifies the government’s position promoting the need for regulation and control.
In conclusion, Kelly argues that instead of creating an area where sex workers can labor legitimately as sex workers, empowered and benefiting from the legalization of prostitution, the Zona “with its registration, testing, and confinement of women who sell sex, creates prostitutes” (emphasis added, p 68). These women are far from freed from stigmatization and, in fact, face the public acknowledgement of their occupation which further shames them in their private lives. The health certifications provided to these women turn them into expendable cogs in the neo-liberal economy in the very poorest parts of Mexico, instead of protecting them or their clients’ health. Once they are infectious, they are cast out of the system. The health benefits to society are questionable at best as clandestine prostitution continues while defining the women who dare to operate outside of the system as criminals, further stigmatizing their legal counterparts. The testing that the state proffers as a benefit is, in fact, an illusion which does not lead to the health and well being of society. Rather the system leads to more health risks, not less. Upon examination by a thorough and skilled ethnographer, such as Kelly, the house of cards built upon claims of health and well-being as benefits of legalized prostitution, falls apart.
Ultimately, this book shines a light on the illusion of economic freedom and opportunity when reconciled with the personal costs to workers. In the end, individuals suffer from forces out of their control: the global economy that drives down the opportunities, wages and standards of living for unskilled workers, and the daily market forces which balance the prices and services workers need to navigate in order to survive. Kelly uses a well-organized ethnography to highlight this dilemma faced by the women of the Zona. This book does require reflection and consideration of global forces before delving into the micro level study which describes the plight of the individual worker. On the one hand, the state proclaims that it is ‘solving’ the social and health problems associated with prostitution while creating jobs in an area desperate for employment; and on the other hand, legalizing the sex industry results in further stigmatizing marginalized populations, creating health risks by the very practice of testing and certification, and creating a situation that does not allow for the women to control their economic fate.
Thematically, Lydia’s Open Door would be appropriate for courses that address either legalized prostitution or the use of ethnography as a way to investigate broad social issues. In regards to the former, this book would be useful as a lead-in to many facets of the issue, such as the costs and benefits of a legalized sex industry, how the state controls marginalized populations under the auspices of health benefits, and how forces outside of the control of the individual shape the choices individuals must make. To address each of these topics, Kelly provides examples taken directly from her experiences and the experiences of the workers with whom she spent nearly a year studying. From police raids on illicit sex workers, the unique cost/benefit equation expressed in the privacy of the workers’ rooms, and the intimate struggle of workers trying to escape the ‘legitimate’ sex industry, all serve to illustrate these issues in a manner that only an ethnographic study could reveal.
Kelly does not directly assault the patriarchal system which has created the Zona, or the social forces that affect the workers and clients on a daily basis. Rather, the book creates a framework from which conclusions of gender power imbalances as manifested in the sex industry can be derived by the reader. Examples of this can be found in the control of the condom supply, the role sex workers play in teaching young men about the gender hierarchy in society, the lack of testing for clients, and the role of the state as pimp. The ability of the state to impose itself upon marginalized populations, with the public’s support, is also an important facet further illustrating the patriarchal relationship with society.
In summation, Lydia’s Open Door brings forth the stories of individuals coping in a globalized, commodified service oriented economy. The manner in which Kelly goes about this allows the reader to contemplate the evidence and reach their own conclusions of whether the social benefits of legalizing prostitution are worth the price paid by the women who have no control over their wages, working conditions, or their inevitable expulsion back into society when their usefulness is through. Lydia’s Open Door serves as an example of how an ethnographic study can address these macro level questions through a qualitative lens which allows the reader to focus on the impact of a patriarchal system, visited upon the individual.