In our outreach work by SWASH we have found that migrant sex workers who are in the illegal sector of the industry and usually have a greater need for money are more likely than their Japanese counterparts to engage in the most risky acts. They refer to ‘honban’ (literally the ‘real turn’) full sexual intercourse, and even ‘ nama-honban’, or honban without the protection of a condom. SWASH also points out elsewhere that the workers say there are customers who purposefully target migrant workers with physical violence because they know the workers will not resort to legal recourse (Kaname 2012: 30). For Japanese sex workers too, honban, particularly nama-honban, and violence from customers, including rape, are acute dangers. The risks are not distributed evenly but, unsurprisingly, the less the workers feel they are in control of negotiation with their customers, the more they are at risk. If the workers feel that they and their jobs must be hidden from the public eye, due to the ‘whore stigma’ and/or being illegal, they cannot bring their concerns to public consultation centres, and they are put at risk.
Although criminalised migrant sex workers are more at risk than anyone else, the circumstances that create risk for all sex workers are also created by the grey area between the Entertainment Business Law and the Prostitution Prevention Law, or in other words the simultaneous regulation and criminalisation of sex work. As stated above, the Entertainment Business Law has changed with the trends of the sex industry. When the anti-trafficking amendment came into the picture, it was combined with other major amendments within the scope of the Entertainment Business Law: hitherto unchecked ‘delivery health’ businesses came under scrutiny for the prevention of trafficking, touts were banned even for legal premises, and advertising became more restricted.
Greater control over ‘delivery health’ could have been a good thing from the workers’ point of view as it was considered to be the most dangerous style of sex work. The delivery style makes workers more vulnerable as they are sent alone to an unknown hotel or customer’s apartment, where it would unquestionably be difficult to seek help from a third party if in trouble, unlike ‘soap lands’ where they work on the premises (Kaname 2012: 30; Kaname and Mizushima 2005: 283, 296). However, the 2004 amendment in effect made conditions worse because it was tied up with other sex industry cleansing campaigns. Those who work in the sex industry believe that the stringent policing and cleansing encouraged this most dangerous delivery style to become the mainstream of the sex industry in Japan because it became more difficult to run other kinds of legal sex industry businesses. Banning touts and advertisements caused soliciting to flourish in the more hidden world of the Internet. The whole sex industry has become more difficult to grasp, in terms of more women working part-time and the increase in non-registered delivery sex work (Kaname 2012: 30—33; Matsuzawa 2012: 73—78). Moreover, since the cleansing campaigns were also tied up with the national government’s ‘Halving Illegal Overstayers in Five Years’ campaign, migrant sex workers who are deeper in hiding than their Japanese counterparts would have been pushed into the delivery businesses too.
The legal sector of the sex industry is now normalised or more widespread, at the same time as becoming less visible to the public eye. The grey area between regulation and criminalisation has widened and become more dangerous for sex workers. Within the initial legal framework, dispatch workers in particular are driven to provide honban services which are not only dangerous but also outlawed by the Prostitution Prevention Law. In the grey area of sex work in legal premises such as soap lands, if coercion or rape happened, she might refrain from making it public as it might well be her who would be accused of offering illegal prostitution. Besides, as some migrant sex workers told us in our abovementioned outreach work, in this grey area, the fact that there is always a fear of stepping out of the legal area into criminal activity makes the worker psychologically insecure and vulnerable. Some of them are physically more vulnerable, too, even while working on the premises. For example, their employers never distribute condoms as this would be seen as evidence of them providing sexual intercourse as a service and breaking the Prostitution Prevention Law. Some workers suggest that, precisely because they are working at legal premises, they need to hide condoms somewhere not easy to reach and this makes it more difficult to protect themselves when necessary (Aoyama 2014: 269—281; Kaname and Mizushima 2005: 80).
Conclusions
The main stated purpose of both the Prostitution Prevention Law and the Entertainment Business Law is to ‘preserve good public morals’. To this end, the parallel functions of the criminalisation and regulation of sex work are to hide the industry from the public eye to prevent it from causing public disturbance. When the public, including well-meaning people who think the industry should not exist because it is discriminatory, are thus protected and prevented from seeing and talking about what is actually going on in the sex industry, the physical and psychological safety and rights of those who work there are sacrificed.
Furthermore, the grey area formed by the two laws exaggerates the danger of hiding sex work and the industry, criminalising and excluding the workers from legal protection. The grey area works to make those who are working in the legal sector of the industry vigilant about not being seen to step outside the legal area. It also makes it difficult for them to publicly assert their existence, claim rights or assistance, or speak about their conditions which might lead to them being accused as criminals. Stricter regulation also drives a larger proportion of the industry away from safer types of services towards more dangerous ones, while criminalisation works to divide sex workers into different groups. Workers in the legal parts of the industry then vehemently disclaim any association with prostitution, preventing them from forming solidarity networks. This further separates the workers from the ‘good public’ through the consciousness that they are doing something which should not exist, increasing stigma and the difficulty of accessing assistance. These conditions uphold the myth that the border between ‘prostitutes’ and ‘housewives/ mothers’ is still there, even while economic and other pressures on women are increasingly blurring this boundary.
Migrant sex workers are additionally vulnerable as they are criminalised and excluded from ‘good’ society from the start. Because of this, however, they polish their survival skills, and marriage is one means of survival. Marriage provides a stable visa status and means that they are not prohibited from working in the sex industry, thus enabling them to work in the safer legal parts of it. Some women on student visas also engage in sex work. The boundaries between sex workers and other women are being blurred in various ways in the reality of globalisation. The Japanese police and migration control are now working on uncovering ‘fake marriages’ and ‘fake students’ with cooperation from language schools, universities and so on which also wish to disassociate themselves from criminalised activities. However, migrant sex workers do not always fit into the definition of trafficking victims according to the antitrafficking protocol (which requires direct or indirect force or deception and prostitution of others to constitute trafficking and exploitation: Article 3). In many cases the immigrants have exercised their own agency in finding strategies to normalise their visa status. Yet, if the purpose of domestic and international anti-trafficking measures is to prevent the victimisation of disadvantaged people, the practice of safer and legal migrant work sought by these very people should not be what the policy clamps down on.
The laws that regulate, control, and criminalise the sex industry and/or trafficking in persons are not constructed to protect rights, reduce dangers or promote the safer conditions of workers. No one in this society is exempt from responsibility for the existence of these discriminatory laws. While many people would like to transform society so that the demand for sex work and sex workers’ need to do this work would no longer exist, it can be said that the more urgent need is to transform the conditions of vulnerable workers in the industry and to enable them to protect themselves. To do so, we need to understand the lived experiences of those who are actually involved and the real effects on them of changes in the social and legal context. We need to challenge the principle that says, the ‘sex industry and its workers should be hidden or cracked down on for the sake of public morals’, without considering the consequences of this attitude for those who are most vulnerable.