2. Not an easy framing: From Nora’s story of violence and abuse, through sex work, to visions of (in)justice ^{Footnote 2}

‘Liepāja’ is undoubtedly a story of violence, abuse and exploitation. Nora’sFootnote ³ tragic experience as a minor being exposed to the market of online sex chats in a way that is evidently distant from any conception of prior, informed and free consent cannot be downplayed. At the same time, however, two considerations complicate the framing of this story as far as its legal apprehension in the context of the EU is concerned.

First, the European, cross-border dimension of Nora’s ambitions and troubles adds a significant layer to this story. On the side of ambition, Europe can be found in Nora’s story through her desire to pursue her education in another Member State. Clearly, Nora’s plans and desires, and their role in shaping the context that eventually drives her towards cam shows, should not be understood as a justification for the violence and abuse she is a victim of. Equally, the fact that Nora keeps on performing this activity because she is determined to earn enough money to buy her tickets to Italy and help her family can in no way be accepted as proof that she freely and consciously chose to engage in the provision of online sexual services. That is why it is necessary to acknowledge that Europe can also be found, on the side of troubles, in the exploitative, violent virtual space of the online chats that Nora inhabits. Or better, considering how the online exploitation and violence do not stop at Europe’s geographical boundaries and stretch beyond (physical) borders across the world, Europe is challenged in Nora’s story to the extent that it is presented with a reality check: its empowering tale and telos are met with global systems of oppression and transnational chains of material inequalities. Reading Europe in Nora’s story should therefore work as an invitation to engage in a legal reading that neither settles for the sole identification of violence, exploitation and abuse, nor results in justifying these forms of oppression while seeking a more nuanced analysis. Such reading should equally broker an understanding of ‘Liepāja’ as one example of the complex interactions between the liberal promises of the EU project of integration – which include the possibility of freely choosing and pursuing one’s path anywhere in the EU – and existing systems of power and inequality, ranging from capitalist to patriarchal structures, taking sexed and gendered shapes as happens in this case of online sexual abuse.

Second, disentangling sex work from gendered violence and exploitation is no easy feat. Among feminists and feminist scholars who have engaged with these matters, one can trace quite contrasting, and at times opposite, positions. Some feminists, for example, understand sex as nothing but the substantiation of male domination, while others read the dynamics of sexuality as distinguished and partially autonomous from gendered hierarchies.Footnote ⁴ For the purposes of this short contribution, we would like to stress that a proper understanding of sex work, gendered oppression and social injustice would be hampered by legal interpretations that reduce any remunerated form of sexual service to an instance of violence, exploitation and eventually male domination. It would be equally unwarranted to simply juxtapose the remunerated exchange of sexual services with other forms of work without problematising sex work’s position in a broader system of gendered oppression.

Bearing these considerations in mind, in order to legally read ‘Liepāja’, we cannot derogate from a critical engagement with the harmful consequences of work in a capitalist economy and sex in a patriarchal society. In this sense, by framing Nora’s story in the context of injustice and inequality, we will be able to both make sense of her struggles and avoid the risk of reading violence and abuse ‘only’ as emotional resources to be used to empathise with her individual condition. Additionally, an explicit focus on sex work will also allow us to address its persisting and excessive stigmatisation, leading to sex workers’ marginalisation and their treatment as second-class citizens.Footnote ⁵ Stigmatising sex work not only dehumanises individuals, but also perpetuates systems of inequality and injustice. Challenging that stigma is crucial to building a more just and compassionate society.

What we want to show is that this particular case highlights the close connection between the underlying conditions of social inequality and injustice on the one side, and Nora’s subjugation to violence and exploitation on the other. Against the backdrop of this connection, we ask where the law stands.

3. The law of ‘Liepāja’ and beyond

Sex work is legal and highly regulated in Latvia. Yet the country faces significant public health and human rights challenges that further stigmatise sex workers and leave them in a vulnerable and precarious situation.Footnote ⁶ For instance, in 2016 around 22% of sex workers in the country were living with HIV, representing one of the highest rates among EU Member States.Footnote ⁷ Moreover, human trafficking is a pressing issue in Latvia, often involving minors, thereby fuelling the overall problem of child prostitution across the country.Footnote ⁸ We suggest that these realities raise an urgent question: Would an outright prohibition or a tight regulation of sex work in Latvia make a difference to Nora’s life? We argue that it probably would not: the structural injustice and socio-economic inequalities shaping her reality would remain drastically unaddressed. Can Europe and its law change this picture?

If we follow Nora’s ambitions beyond Latvia towards Italy and her (formal) possibility of moving freely, the EU legal context we find is not entirely reassuring. While the EU does not have a specific competence to legislate in the field of sex work, its regulation remains highly contested, producing a strikingly fragmented legal puzzle across EU Member States. Roughly half of the Member States support liberal policies that decriminalise, or even legalise and regulate, sex work, while the other half adopt a more conservative approach, which often results in an outright prohibition of sex work.Footnote ⁹ The EU can only intervene on these matters when they intersect with fields in which it has the competence to legislate.Footnote ¹⁰ While this renders direct EU action difficult, a broad analysis of the EU’s approach to sex work/prostitution still reveals quite an inconsistent picture.Footnote ¹¹ While we have no space here for a thorough examination, we can submit some preliminary observations concerning some fallacies affecting the EU’s understanding of the connections between sex work, gendered oppression and social injustice.Footnote ¹²

Taking the Court of Justice of the European Union (CJEU) as a starting point, the relatively few cases dealing with sex work, and the sex/porn industry more generally, are somewhat dated.Footnote ¹³ The case law shows that the Court has avoided moral and ethical questions, relying instead on market-based reasoning.Footnote ¹⁴ While it is certainly commendable that the Court did not rely on morality to construe its argumentation, it is also true that a purely market-based reasoning could imply serious limitations as soon as concerns of sex, gender and justice are raised, and excludes those not caught by free movement provisions.Footnote ¹⁵ Such an approach overlooks the personal trajectories of the parties involved, fails to fully encompass the underlying reality and often only parenthetically addresses questions of fundamental rights.Footnote ¹⁶

To unpack this dilemma further, the interrelatedness between the underlying structural inequalities and the CJEU’s market-driven solutions manifests itself in a range of areas. In the context of abortion, for instance, Isailović points out that adequate medical access often depends on financial resources and not on the rights available to EU citizens.Footnote ¹⁷ While, in theory, the market-driven approach taken by the Court enables every Union citizen to receive services such as abortion, in those countries in which it is legal, this often closes the door for people with fewer resources – they simply cannot benefit from the right to receive an abortion in a different Member State because they cannot afford to travel there and pay for the procedure.Footnote ¹⁸ As a result, although the right exists in principle and appears to offer equal protection, a closer look reveals that the latter is effectively available only to those who can afford to access it. These layered forms of exclusion and structural inequality perpetuate injustice and risk further marginalising vulnerable groups from meaningful participation in the EU project. In this way, access to abortion – and reproductive justice more broadly – is conceived as access to an economic service, framed primarily as an ‘individual consumer choice’ rather than a substantive fundamental right.Footnote ¹⁹

Likewise, it is appropriate to note that, albeit in a different institutional context, the European Court of Human Rights (ECtHR) has recently and similarly dodged a more direct engagement with the complex interpretation of human rights standards in the case of sex work by relinquishing the assessment of French sex workers’ rights to France’s margin of appreciation.Footnote ²⁰ The ECtHR, faced with a petition from 261 sex workers and 20 associations,Footnote ²¹ upheld the French ban on any paid sexual activities, including in the case of consenting adults, and found no violation of the right to private life under Article 8 ECHR. Taking stock of the approaches of these two courts, a concern takes shape: what is missing from the legal language that we use to talk about sex work, exploitation, violence and gender oppression?

A brief analysis of EU legislation further reveals that, while increasingly addressing the breadth of issues raised by Nora’s story, the existing instruments fall short of satisfactorily tackling the underlying structures and relations that allow the nexus between sex work, violence and women’s oppression to persist.Footnote ²²

On the one hand, EU consumer protection law appears to be blind to sex workers’ conditions of vulnerability and their special position compared with other service providers, as demonstrated by Lyn Tjon Soei Len in the context of women voluntarily offering sexual services.Footnote ²³ On the other hand, looking at legislative instruments adopted within the field of judicial cooperation in criminal matters,Footnote ²⁴ it should be noted that, while fostering an ever-rising attention to these issues, the directives’ distinctively liberal approach entails at least three points for critique and potential improvement.

First, while unmistakably framing the issue in terms of systematic discrimination and violence against certain groups, in this case against women, all legislative instruments focus their intervention at the individual level and sideline the structural dimension. Second, while envisioning criminalisation as a solution to prostitution and promoting the protection and support of the victims, such a liberal approach falls short of explicitly addressing the need to subvert the root causes of the systemic oppression at issue in order to bring transformation about.Footnote ²⁵ Third, all the Directives under examination are fundamentally constructed around a concept of consent, whose substance is seldom problematised. What is the meaning of a liberal understanding of consent, fundamentally premised on subjects’ autonomous and free expression of will, when dealing with structural phenomena and their effects, such as women’s oppression, violence, abuse and exploitation?

Continuing along these lines, suppose the liberal concept of consent can be deemed limited when faced with the challenge of structural oppression.Footnote ²⁶ In that light, how are the EU legislative instruments intervening against sexual abuse, exploitation of children and violence against women, or for the protection of victims’ rights? Once again, there seems to be a problem with EU law, which becomes evident in cases such as Nora’s as soon as we ask ourselves what difference EU law would make in Nora’s life? To what extent would education against stereotypes, the prevention of abuse and exploitation against children and public support for victims, to name a few strategies, eventually impact Nora’s possibilities to make meaningful choices for herself?

Keeping these questions in mind, we do not think we can find satisfactory answers by turning our focus to soft law. The European Parliament (EP) has intervened on the issue of sex work/prostitution with two resolutions, one in 2014 and another in 2023.Footnote ²⁷ As far as the proposal of a blanket criminalisation of prostitutionFootnote ²⁸ is concerned, the two resolutions do not differ. It is true that the EP has clarified that the fight against violence, exploitation, forced prostitution and other forms of remunerated sexual services includes the rebuttal of stereotypes that lead to the marginalisation of women performing such activities. ^{Footnote 29} Nevertheless, the EP’s approach can be understood as limited from at least two points of view.

First, to the extent that the EP more or less explicitly conflates prostitution with forced prostitution and associates both activities with instances of exploitation incompatible with human dignity and fundamental rights, one can retrace in the resolutions a specific moralising discourse.Footnote ³⁰ This is reinforced by the EP’s view that any paid sexual act is inherently objectifying and excludes any possibility that consent in these cases can be meaningfully given since the reception of payments or benefits is involved.

Second, precisely by building on the EP’s interpretation of the power-sensitive notion of consentFootnote ³¹ and the EP’s understanding of prostitution not only as an individual act but as a profit-oriented system (a market),Footnote ³² the two resolutions fall short of critically understanding the co-constitutive relation that binds gender hierarchies, sex, work, market economy and prostitution together. While the EP appears to be significantly more sensitive to conceptions of (intersectional) (in)justice in its later resolution,Footnote ³³ it retains a latent understanding of prostitution as essentially the problematic site where gender oppression chiefly originates, and it keeps construing the ‘outside’ (economic) system as the empowering site where exploited women can pursue their life trajectories.Footnote ³⁴

Problematically, we believe, the EP resolutions do not recognise prostitution as another site (among many) of gender oppression, or sex work as another form (among many) of work in a profit-oriented and gendered market economy. By the same token, the EP resolutions fail to see consent as a nuanced, structurally shaped condition whose determination encounters another challenging site in the context of sex work and prostitution. Furthermore, the EP does not qualify what stands ‘outside’ of prostitution – society and more specifically the job market – as part of the same system that produces exploitative and violent forms of work, both of a sexual and non-sexual nature.Footnote ³⁵

This framing, we argue, is not ‘just’ a fallacy that could be solved if the EP offered clear alternatives. On the contrary, by understanding prostitution as an issue to be addressed with legal means, not by virtue of the gendered and exploitative nature of broader capitalist relations of production but rather because of the sexual and (allegedly) degrading nature of the remunerated activity, EU law risks leaving Nora and many other Europeans without materially transformative solutions. Failing to counter the structural and intersectional nature of the systems of oppression surfacing in ‘Liepāja’ – from capitalism to patriarchy – EU law ends up re-entrenching them in the lived realities of Europeans.Footnote ³⁶

4. The social and the market: Reading (in)justice in freedom of movement

Taking stock of the fallacies that we identified in the ways EU law deals with sex work, exploitation, violence, gender hierarchies and justice, what happens when we turn back to ‘Liepāja’ and ask ourselves once again: how could EU law make a difference for Nora? Trying to plunge into the seriousness and materiality that an answer to such a question requires, we believe a few sentences should be devoted to the socio-economic dimension of EU law more generally, connecting our previous points on the CJEU’s market-driven approach and Nora’s story. Indeed, the inequalities arising from the free movement provisions have been discussed extensively in academic research.Footnote ³⁷ Notably, it is argued that the internal market is mainly open to economically active individuals with sufficient resources.Footnote ³⁸ Resources should therefore be understood not only in an economic or monetary way, as Nora’s story shows. Resources can also be language skills, education or other factors that would facilitate an eventual move to another EU Member State. While those who have employment, or simply enough resources, can enjoy a privileged status under EU law and can benefit from free movement provisions under Articles 45–62 TFEU and Directive 2004/38, those who fall outside those categories, such as Nora, are almost excluded from benefiting from EU free movement provisions in the first place. This again underlines that, notwithstanding growing references to and reliance on human rights discourses and fundamental rights provisions, under EU law the individual is still seen as a market category, regulated by free movement provisions within an integrative economic project.

Within the realm of free movement of persons, earlier rulings, such as Baumbast, opened the way for a more progressive and inclusive application of free movement provisions.Footnote ³⁹ This case conceived of free movement as closely connected to individuals, grounded in their fundamental status as EU citizens. The Court turned the concept of EU citizenship into a fundamental status through which the individual was enabled to freely move around within the Union.Footnote ⁴⁰ However, in Dano, Alimanovic and later cases following the introduction of Directive 2004/38, the Court reaffirmed a more literal interpretation of the law, even abandoning the idea of a supranational notion of citizenship.Footnote ⁴¹ Instead, the CJEU required proof of existing links between the Union citizen on the move and the labour market, thereby moving towards a notion of market citizenship. The choice is clear: either one fulfils the conditions set out in the Treaties and secondary legislation, such as Directive 2004/38, or one does not benefit from those rights granted by Union citizenship. EU law subsequently creates an exclusionary effect, leaving many EU citizens less well off than those who are more resourceful and can benefit from the free movement provisions. Those families, such as Nora’s, subsequently struggle to benefit from EU law at all, as their lack of resources fuels the underlying injustice.Footnote ⁴²

It should be mentioned that students generally benefit from slightly better conditions that transcend the mere economic notion of free movement. According to Article 7(1)(c) of Directive 2004/38, students merely need to ‘declare’ that they or their family members have sufficient resources if they are enrolled in a university. Thus, Nora can move to Italy to pursue education there without having to prove that she has sufficient resources. However, while free movement under EU law usually comes with legal protections against discrimination and the right to equal treatment, important exceptions apply to students. Students can, in fact, be discriminated against and Member States can exempt foreign students from student grants under Article 24(2) of Directive 2004/38, as confirmed by the court in Förster.Footnote ⁴³ So, while EU law formally allows Nora to move to Italy to pursue her studies there, it materially excludes her from this opportunity as she simply does not have the resources to move to Italy and could be denied additional financial support.

Consequently, this is not to say that the design of free movement more generally is the cause of Nora’s experience, or that the pursuit of education in Italy justifies Nora’s drift into abuse, exploitation and violence. Instead, we emphasise that there can only be partial answers to Nora’s story from a legal point of view. Part of the puzzle is indeed the design of the free movement of persons. Once again, while theoretically everyone has the opportunity to move and study in another Member State, this possibility is practically foreclosed for those who lack the financial means to do so. The divide between economically active citizens and those who are not is a factor that should therefore not be left out when discussing this chapter – particularly if EU law often benefits only those who have previously ‘activated’ their rights by making use of the EU’s market freedoms. And this is even more apparent if we reiterate that sex work and gendered oppression cannot be understood without their embeddedness in social injustice and inequalities: we cannot understand the EU’s regulatory intervention in the field of sex work and violence against women if we do not deconstruct how the EU also builds the (unequal) material conditions for its citizens to participate in the integration project.

5. Some reflections on method

For this short article, we decided to take Nora’s story as a starting point to reflect on how Europe and its law frame sex in relation to violence, exploitation, gender hierarchies and work. This perspective led us from the individual level of Nora’s story to some of the structural dimensions engendered by EU law’s shaping of the conditions of (in)justice across the Union. Relatedly, we retraced a series of fallacies and criticalities in EU law as far as the framing of sex work/prostitution and sexual exploitation/gender-based violence and the construction of the freedom of movement are concerned.

We took some time to reflect on the impact of all these considerations on the way we navigated Nora’s story, as well as the methodology that we could adopt to read and understand the law in everyday life. On this note, we would like to conclude with three preliminary thoughts on methods.

The first point concerns perspective. As we mentioned, we read Nora’s story first and foremost as a source of inspiration, as one possible gateway to pierce through the intricacies of the everyday life of Europeans and the law regulating it. This also means we did not rely on Nora’s story as a stand-alone source of our scholarly intervention. This would entail certain risks, or at least require certain precautions. If we read ‘Liepāja’ together with ‘Budapest’,Footnote ⁴⁴ this becomes clearer: why was Nora’s story picked to represent the experience of many girls and women facing sexual violence and exploitation? And why was Ibrahim’s story picked to represent certain men’s experience with sex and the porn industry? Accepting these stories as sources, we fear, bears the risk of turning more or less explicit narrative choices (and their power-influenced genealogies) into covert methodological biases.Footnote ⁴⁵

Choosing to work with the story as a first ‘perspective provider’, as we tried to do, partially bypasses these risks. At the same time, it reinstates a related concern: Is there a possibility that our structural analysis will be nonetheless biased if the material it is built upon is strictly linked to the everyday life dimension? At the beginning of this article, we motivated our perspective shift from the individual to the structural. Revisiting this move, we now reflect on the limitations that may arise when seeking the structural while working through the everyday. More specifically, we ask how far Nora’s story can take us, given that the aim of this collective project is to understand how the law participates in the constitution and regulation of the very reality it purports to govern.

Second, building on the previous point, we see a distinctive resonance between the interpretative horizon fostered by everyday life and an understanding of the law and its effects, which is more contingent and diagnostic than structural and transformative. In other words, we argue that an everyday life focus, as prompted by our understanding of stories such as ‘Liepāja’, facilitates the apprehension of individual vulnerability and life strategies – with or notwithstanding the law – while sidelining the structural nature of the law’s intervention in the very constitution of forms of vulnerability, precarityFootnote ⁴⁶ or resistance.Footnote ⁴⁷ Yet, can the individual and the structural be generatively reconnected? We believe this can be done in two ways. First, the individual dimension can offer a grounded access to understanding the law’s structural role in shaping oppression. Second, the everyday can be a source of intra-critique: the unfinished recasting of deconstructive efforts that save the structural from essentialisation.Footnote ⁴⁸

The third and last point relates to the two previous ones inasmuch as they factor emotions and affects differently in their methodological framings. While reading between the lines of ‘Liepāja’, a story built around Nora’s intense, at times traumatic and tragic emotions, we wondered what the meaning of our exposure to such intimate material was. Ethically, we asked ourselves what kind of responsibility such exposure demanded from working with Nora’s everyday life. Methodologically, we questioned the role that emotions should play in our inquiry into the law’s presence in Nora’s life. Moving between individual experiences and structural forces, we stress the importance of recognising the distinct aims and potential of engaging with each dimension. Building on this, we advocate for a careful approach to narrated emotions, especially when they inform knowledge production that moves beyond empathy towards deeper, more critical (re)interpretations. This caution is particularly pertinent for legal scholarship. An intellectual engagement with law must account for its normative and constitutive role in shaping reality; therefore, legal readings of everyday life cannot uncritically rely on the narration of intimate emotions without risking erasing the ways in which such emotions and their representation are co-constituted by power structures and legal forms. In other words, empathy is political. Interrogating the politics of emotion sharpens our understanding of how power and hierarchy shape not only what we feel, whether that be pity, sorrow, contempt or tenderness, but how and why those feelings emerge. Working with the law thus requires recognising that its effects extend beyond individual emotional contexts, reaching into the normative realm of generality and formality. For legal scholars working with emotions and emotional narratives, this means responding to a pressing methodological imperative – to remain attuned to the political underpinnings of emotions. In other words, while not detracting from the inherent value of empathy, we argue that we should beware of feeding into collective emotional narratives that can reinforce the very social structures we are criticising.

Rounding up these three points on methods, we would like to conclude by advancing some final ideas about ways forward. No such concluding thought could do without acknowledging that ‘Liepāja’ cogently pushed us to shift our gaze and reorient our scholarly and legal intervention towards the law in its context, made of bodies and materiality. At the same time, we shared our concerns regarding some possible limitations of a legal apprehension of everyday life to the extent that the perspective of the inquiry, the choice of the analytical dimension and the posture towards intimate, narrated emotions are involved. What avenues are then left to prompt meaningful legal engagements with everyday life?

First, we would reiterate that any such avenues should be clearly framed by the normative boundaries of our scholarly intervention: Why are we reading the law in the everyday? What is our position towards the law? Why and how should the law be concerned with the everyday? Should the law be involved with the ‘everyday’ life of individuals, or should there be aspects of the everyday that remain untouched by the law? Making these questions explicit is a necessary condition for avoiding methodological slippage between description, critique or endorsement of the legal rules governing the everyday.Footnote ⁴⁹

Second, we propose to enrich our analyses by adding to materials such as ‘Liepāja’ – for example, literary products narrating individual stories, other social ‘sources’, different media, political, activist outputs articulating collective claims, demands or discursive practices. We believe that such sources would strengthen our interventions to the extent that they autonomously articulate what kind of normative (dis)engagement with the law they expect, aim or call for. We believe French sex workers’ claims before the European Court of Human Rights,Footnote ⁵⁰ Belgian sex workers’ struggle for access to social security and welfareFootnote ⁵¹ and Italian sex workers’ collective organisation against criminalisation and for social transformationFootnote ⁵² are all good examples of productive sites from which to start. Shifting to these collective practices, we suggest, is essential for reconnecting the everyday and the structural in a manner that sustains both legal critique and political possibility.