Should Prostitution Be Legal?
It's known as the "world’s oldest profession," but prostitution typically isn't viewed as an honest day's (or night's) work – at least not in the United States. Save for about 19 above-board brothels in Nevada, prostitution is illegal here – both for buyers and sellers, though perhaps disproportionately and with fading zealous. You see, arrests for "Prostitution/criminalized vice" declined by more than 35% from 2004 to 2012, when 56,575 such arrests were made, according to the most recent data available from the Bureau of Justice Statistics. And more than two-thirds of 2012 arrestees were women.
So it’s fair to wonder what prostitution laws are actually accomplishing. And you might be surprised by the rationale posited by some of the most vociferous proponents of decriminalization. Earlier this year, the New York Times Magazine made waves with a cover story examining that question from a unique perspective: that of a feminist. The notion that selling sex should be decriminalized "hinges on an ideological conviction — the belief that the criminal law should not be used here as an instrument of punishment or shame, because sex work isn’t inherently immoral or demeaning," the piece states. "It can even be authentically feminist."
That is one reason why global efforts to decriminalize prostitution have in many ways gained steam in recent years, as is the turmoil endured by the world economy and the corresponding temptation to tax big black-market businesses. Prostitution already represents a $55 billion industry in the United States, according to estimates, which means it generates more annual revenue than credit unions, casino hotels and sporting goods stores, respectively, according to the U.S. Census Bureau.
The right solution nevertheless remains unclear, as the desire to decriminalize is far from universal, whether from household to household, country to country or even sex worker to sex worker. After all, the experiences of those in the industry run the gamut from an enjoyable avenue to financial independence all the way to what amounts to slavery. We therefore decided to pose the question – should prostitution be decriminalized? – to a diverse panel of experts in the hopes of better understanding all facets of the debate. You can check out their bios and responses – including 11 Yes votes and 6 Nos – below. And if you have something to add, make sure to share your opinion in the Comments section at the bottom of the page.
Prostitution Should Be Legal (Or Decriminalized)
- "In the U.S., we treat people who offer or receive sexual intimacy for gifts of money with strangers as criminals. This serves no legitimate governmental purpose, and only serves to impose the sexual morality of one group upon another".
- Laurie Shrage // Professor in the Department of Philosophy at Florida International University
- "Nations that have legalized prostitution have concluded that blanket criminalization only forces commercial sex underground and puts the participants at risk of exploitation or violence. Like marijuana legalization, the guiding principle is that decriminalization of transactions between consenting adults is far preferable to forcing them to operate in the perilous black market where organized crime thrives."
- Ronald Weitzer // Professor in the Department of Sociology at George Washington University
- "If our goal is to reduce or eradicate the harm that might come to those who sell sex, and even to improve their lives, then the question should not be 'should prostitution be legal,' but rather 'how can we all work to change the economic environments in which we live and work and buy and sell, so that each person has the opportunity to engage in work that is meaningful, non-exploitative, provides a living wage, and is safe?'"
- Dina Francesca Haynes // Director of the Human Rights and Immigration Law Project, New England School of Law
Unfortunately, our anti-prostitution laws do not distinguish these practices. In the U.S., we treat people who offer or receive sexual intimacy for gifts of money with strangers as criminals. This serves no legitimate governmental purpose, and only serves to impose the sexual morality of one group upon another. Alternatively, restricting how formally established businesses generate profits from markets in sex (sexual services, entertainment, images, etc.) serves the legitimate governmental aims of protecting public health, and worker safety and dignity. Governments can and should regulate market transactions so that they are transparent, non-exploitative, and fair. However, in liberal democratic societies, governments should not regulate the private sex lives of their subjects merely because they violate widely held moral, sexual, and gender norms.
The upshot is that our anti-prostitution laws should focus on the practices of sex-oriented businesses, and restrict products or services that are known to be seriously harmful to the health and well being of workers, customers, or communities. We have some idea how to do this with respect to pornography and exotic dancing businesses, because these components of the sex industry now exist legally and are regulated to protect the health and safety of employees. We need to develop similar regulations for businesses that want to market other kinds of sexual services. These regulations may include minimum age requirements, regular health exams, disclosure requirements, and standardized employment contracts that protect workers against arbitrary or exploitative terms.
Anti-prostitution laws should not apply to individuals whose sexual practices and monetized relationships do not rise to the level of operating a public business establishment. To arrest and detain such individuals does not protect them or the public from harm; instead it does the exact opposite. It renders anyone suspected of “prostitution” vulnerable to others who wish to exploit them, including corrupt and potentially violent police officers, correctional staff, partners, friends and relatives. We need to decriminalize “prostitution” in order to protect our basic freedoms and civil rights. However, we do not need to legalize prostitution, in the sense of allowing so-called “adult businesses” to operate with minimal regulation. Yet any regulations we impose should be based on known or provable risks and harms, and should aim to protect the health and integrity of sex workers, their clients, and the public.
Prostitution has been legal for 45 years in Nevada (since 1971), without problems. And there is considerable public support for rethinking the criminalization policy that is in place elsewhere in the United States. Almost half (44%) of Americans in a 2015 YouGov poll supported legalizing prostitution.
Legal prostitution systems are not monolithic. They differ tremendously from one place to another. A major variable is the type of prostitution that is allowed and the types that remain prohibited. Street prostitution is illegal in most of the countries where other types of prostitution are permitted. In some places, only one type of prostitution is legal. In Nevada, only brothel prostitution is legal and only in rural counties, not in Las Vegas and Reno. In half of Australia’s states, escort agencies are legal as long as they are licensed, while in the other half escort agencies are illegal but independent escorts are free to sell sexual services. In half of the Australian states it is legal to operate a licensed brothel, while in the other states brothels are illegal. Thirteen of Mexico’s 31 states and several European countries have legalized some type of prostitution, but vary in which types are allowed.
Another distinction pertains to eligibility. Almost everywhere, minors are banned from the sex industry, and in many places neither illegal immigrants nor persons infected with sexually transmitted diseases are allowed to work. Agency and brothel operators in Germany and the Netherlands (and elsewhere) conduct intake interviews to ensure that the applicant is not being pressured or coerced by anyone to sell sexual services.
As I have documented in my 2012 book, Legalizing Prostitution, state-mandated regulations differ tremendously from place to place. Some regulations are arguably consistent with “best practices.” These include policies that allow sex workers to determine who they accept as clients and the kinds of sexual acts they will perform, rules enhancing health practices and safe working conditions, mandatory licenses for all erotic businesses, periodic monitoring of such businesses by the authorities, and sensible restrictions on signage and advertising. Other regulations are misguided or counterproductive, such as exorbitant brothel license fees, zoning prostitution into marginal areas of town lacking in amenities, and mandatory licensing or registration of sex workers themselves.
Nations that have legalized prostitution have concluded that blanket criminalization only forces commercial sex underground and puts the participants at risk of exploitation or violence. Like marijuana legalization, the guiding principle is that decriminalization of transactions between consenting adults is far preferable to forcing them to operate in the perilous black market where organized crime thrives. This was the guiding principle behind Amnesty International’s recent decision to advocate universal decriminalization of sex work.
In countries, states and cities that criminalize prostitution, I would urge that they at least decriminalize the person selling sex. In countries, states and cities legalizing (or decriminalizing) prostitution, I would propose the imposition of regulations that would emphasize the safety of those selling sex. It is popular these days to speak of “ending demand” for prostitution by criminalizing the users (Johns) and suppliers (pimps/traffickers) of sex, but the research I have read convinces me that the markets persist, they are merely driven far underground, where those selling sex are then rendered all the more vulnerable, invisible and likely to suffer harm – not just from their clients, recruiters and pimps, but also from police.
If our goal is to reduce or eradicate the harm that might come to those who sell sex, and even to improve their lives, then the question should not be “should prostitution be legal,” but rather “how can we all work to change the economic environments in which we live and work and buy and sell, so that each person has the opportunity to engage in work that is meaningful, non-exploitative, provides a living wage, and is safe?”
Legalization benefits sex workers by reducing their degree of marginalization and reducing the likelihood of the involvement of organized crime in prostitution (much as it did for alcohol at the end of prohibition). It results in reduced trafficking, as has been seen in other countries that have legalized it, such as Germany and New Zealand. In the five years after legalization, there was no increase in trafficking in New Zealand. In addition, trafficking goes down when women themselves can see it and report it without fear of reprisals.
Legalization increases the safety of sex workers. In countries where it has been legalized, Occupational Health and Safety Laws apply. Brothels often require payment by credit card, providing another layer of security. Workers also are more likely to go to the police if they have been attacked or assaulted by a customer when they are engaged in legal activities. In addition, when prostitution is legalized and regulated by local or state governments, it is easier to enforce rules about condom use which reduces the risk of sexual transmission of disease. Reports suggest that sex in a Nevada brothel seems to have lower disease risk than sex on college campuses.
It is also possible that legalizing prostitution might decrease the risk of sexual assault against women more generally. For a period of time, prostitution was accidentally legalized in Rhode Island when some language was deleted from state law. Research has examined the six year period between the police discovering that they couldn’t prosecute prostitution and lawmakers changing prostitution back to being illegal. There was an over 30% decline in gonorrhea cases and reported rapes among Rhode Island women during that time period. One possible explanation for this drop in sex crimes is that men who might otherwise assault, are willing to pay for the services of sex workers when such sex is legal.
From a societal standpoint, legal prostitution can provide a tax windfall which can in turn be used to support social services and public works. In Nevada, legal brothels make around $50 million a year. Imagine this on a larger scale and the tax revenues from prostitution services as well as associated alcohol sales. This is a more beneficial alternative than the economic resources wasted in trying to prosecute prostitutes and their customers by police forces. Legalization would provide substantial monetary benefits for the larger social group as well as benefits for the sex workers themselves and perhaps women in general.
Prostitution between consenting adults involves people peacefully using their own bodies for their own purposes. Is it no longer “a woman's body, a woman's right”...with men enjoying the same right? If not, who owns their bodies – society, the state, you?
Those who criminalize sexual and commercial acts between consenting adults are introducing violence into the exchange. At their behest, people with guns – law enforcement officers – brutalize both peaceful parties: the prostitute and the client. The client is often robbed of money through fines, humiliated through publicity, and the recipient of a police record. The prostitute is often victimized by police officers who demand free sex, brutalized by being jailed and having a criminal record, forced to become an informant and generally treated as subhuman. The law does not rescue prostitutes except in novels.
Ironically, anti-prostitution activists claim to be protecting “women on the street” who actually comprise about 10% of all prostitutes. Most sex workers are either call-in or call-out workers and many use the equivalent of massage parlors or sex clubs. Having interviewed hundreds of sex workers, I know that they overwhelmingly choose to be where and who they are. Nevertheless, citing the 10% of street walkers who are the most likely to be on drugs or beaten up, the activists offer a solution: take away whatever choice over her own life the prostitute still has.
Prostitution should not be legalized; it should be decriminalized. Legalization means the state control of a sexual act; decriminalization means sexuality is left to the discretion of participating individuals. The state and the police have no place in the bedroom.
Clearly, sex work is a way that many individuals support themselves and their families when they have few options. Most sell sexual services as a means of survival, and some are specifically interested in aspects of professional sex, including sex surrogates, fetish service providers, sexological bodyworkers, escorts, erotic massage practitioners and others. A punitive and carceral approach to sex work, regulation through criminal codes and police surveillance, is a cruel strategy for vulnerable community members who struggle to survive. The carceral approach represents also an abrogation of rights for all, including rights to privacy, to earn a living, to freely associate, among other rights.
As sex workers began organizing, our diverse communities around the world have developed approaches to sex work legislation based in these rights as reflected in the Declaration of the Rights of Sex Workers in Europe.
Sex Worker activists distinguish 'decriminalization' from 'legalization,' making the point that historic forms of prostitution regulation have been punitive. This definition, was offered by Scarlet Alliance and the Australian Federation of AIDS Organisations from "Principles or Model Sex Industry Legislation".
Decriminalisation refers to the removal of all criminal laws relating to sex work and the operation of the sex industry. The decriminalisation model is the favoured model of law reform of the international sex workers rights movement. Occupational health and safety and other workplace issues can be supported through existing industrial laws and regulations that apply to any legal workplaces.
Legalisation refers to the use of criminal laws to regulate or control the sex industry by determining the legal conditions under which the sex industry can operate... [and]…is often accompanied by strict criminal penalties for sex industry businesses that operate outside the legal framework.
The New Zealand Model, developed by sex workers with support from the broader community, is one example of a decriminalized system.
Decriminalization is a new direction and contemporary approach originally launched in the early 1970s by sex worker activists influenced by the civil rights, LGBT rights and feminist movements. Research points strongly to the fact that decriminalization reduces violence and supports the health of sex workers and broader communities. That is why human rights organizations and bodies have begun to specifically recommend decriminalization including Human Rights Watch, Amnesty International, Global Commission on HIV and The Law among others.
Anti-sex work advocates promote prohibition and 'abolitionism.' Abolitionism, developed in the 19th century, is the ideological principle behind the current laws launched first in Sweden referred to as the Nordic Model. Prostitution abolitionists support a wide range of laws that criminalize most of the industry. Current trends towards expanding prostitution crimes focus on targeting or criminalizing the client through specific laws against purchasing services with a goal of 'ending demand' for sexual services. In addition, although the sale of sexual services is legal, surrounding activities such as advertising, organizing a business, sharing a workspace, etc. are illegal. Even a landlord may be punished if a sex worker is their tenant. Anyone associated with a sex worker (including other sex workers) can conceivably be a target of police action. In other words, the sale of sexual services, per se, is legal, but much of what one needs to do to conduct business is illegal. So, in practice, sex work is not decriminalized. According to research, this system drives commercial sex underground and increases violence against sex workers.
The sex worker rights based approach, decriminalization, is the only humane solution, bringing the sex industries industry above ground and ensuring workers' rights. Commercial sex must be legal in order to ensure these rights.
As Martha Nussbaum argues in her article ‘“Whether from reason or prejudice”: taking money for bodily services,’ sex work lacks any features that could justify criminalization. Yes, sex is, for many people, an intimate act. But many professions involve various kinds of intimacy: the sharing of confidences in therapy, the touch of skin-on-skin of (non-sexual) massage, the transgressing of bodily boundaries by your proctologist. A certain amount of intimacy and vulnerability is even found in the philosophy classroom, as we examine and critique beliefs that may be deeply held.
Sex work can be dangerous, but so are many professions. Intimacy can far too often be dangerous for women – but this is a problem that goes well beyond the sex-worker/client interaction. The stigma around sex work may increase the danger, when sex workers are viewed by their clients, and society, as degraded or dehumanized commodities. Unfortunately, sex work is not likely to become completely safe simply through legalization. But it can certainly become safer, as legal sex workers more easily have recourse to law enforcement when assault and coercion occurs.
Currently, many sex workers enter the trade/business as the best choice amongst a limited choice of bad options. Legalization of sex work, accompanied by a general improvement in economic opportunities for women, will at the very least improve the situation for those making this choice. Ideally this would also go hand-in-hand with wholesale cultural change in attitudes toward women, and sexuality more generally, so that these women are not seen as reduced to something that can be bought and sold.
Legalization is the model we see in the Nevada brothels; it is a system of regulating and discriminating against sex workers. Under legalization, all workers are required to obtain a "sheriff’s card" and "a work permit," and then the worker has to pay for their weekly testing, pay $20 a day in rent, fork over half their earnings to the brothel and to pay taxes. The workers also have to live at the brothel in the middle of the desert.
In order to get a sheriff’s card, one needs to go get photographed and fingerprinted, and a background check is run to see if the person has any drug- or prostitution-related arrests within the past year. Ironically, if a person has been arrested for being an illegal sex worker, then they can’t apply to be a legal sex worker for a year. In Seattle, strippers are required to obtain a sheriff’s card, which led to a crazy man who filed a public records request to obtain the real names and the personal information of Seattle strippers. The judge had to issue an injunction to protect the strippers. I wonder why the strippers were forced to register and pay a registration fee to start with. After all, I can’t go to Walmart and get a list of all their employees and access their personal information. Another issue is that sex workers don't have discrimination legislation in place. So while it might be legal to be a sex worker in Nevada, this could cause the women to be discriminated against in housing, further employment and child custody.
Furthermore, regulation creates a 2-tier system of illegal workers and legal workers, and this would allow bad cops to continue robbing, raping and exploiting sex workers with impunity, under the guise of making sure that they are registered.
Another model is decriminalization. In Rhode Island, indoor sex work was decriminalized between 1979 and November 2009 by way of Coyote v. Roberts. Sex workers were free to work from home or hotels as well as to work for escort agencies or massage spas. All consenting adults were free to buy and sell sex, and sex workers could work together. Some great things happened. Between 2004 and 2009, estimates show that decriminalization led to a 31 to 39 percent per-capita decline in rapes and a 39 to 45 percent decline in cases of female gonorrhea in Rhode Island.
The RI spas charged the clients a $50 door fee, then the clients negotiated with the worker, and the worker got to keep all their earnings. The workers got to pick which shifts they worked, which clients they wanted to see, how much they would charge and what services they wanted to provide. The women did not have to live in the spa, nor did they have to register. The spas only had to register their business, just like all other businesses in the state.
Another positive thing that happened: the workers had "equal protection" under the law. In 2008 the Craigslist killer, murdered a Boston escort and then he came to RI and tried to rob an escort. Because prostitution was decriminalized, the escort was able to dial 911 and the Craigslist killer was caught before he could kill any more sex workers.
But this didn't stop the rantings of Donna Hughes who conducted the most biased and unprofessional research RI has ever seen. By 2015, RI also passed legislation requiring "bodyrub providers" to register. Sadly, this has resulted in RI spas being run underground, and it has made it harder for CoyoteRI to reach this population. To date, nobody has registered and prostitution has not been reduced. It’s business as normal for sex workers in RI. Amazingly, prostitution arrests have dramatically decreased since RI criminalized prostitution in 2009.
Another example of decriminalization was introduced in New Zealand in 2003. This started with the "Prostitution Reform Act," which prioritized the "health and safety of the sex workers.” Decriminalization in NZ has reduced trafficking and violence against sex workers. NZ has not had a sex trafficking case since 2003. Another positive is that NZ sex workers report having better relationships with the police since decriminalization was implemented in 2003.
In Sweden they introduced the Nordic model, which criminalizes men who buy sex. This has resulted in many sex workers being evicted. Sex workers also report being exploited by the police. I find it ironic that Sweden didn't seem to care if sex workers could pay their rent and feed their kids, and the Nordic model has not reduced prostitution or trafficking.
So when you ask should sex work be legal, sex work should not be illegal. U.S. sex workers want to be decriminalized.
As in the case of alcohol prohibition in the U.S. during the 1920s, making a good illegal creates incentives for violence, and ending the prohibition also ends the violence. The illegality of prostitution means that, if violence against a prostitute or a client occurs, the victim often hesitates to call the police. And if the victim does call the police, it may be difficult to identify the perpetrator, since prostitutes and their clients often operate with anonymity to avoid arrest. Since perpetrators are, for these reasons, much less likely to be caught, more violence occurs. And to protect themselves from violence, prostitutes often feel the need to hire their own private muscle -- also known as a pimp. The pimp then may be able to exploit the prostitute.
The anonymity of the market caused by prohibition also means that, unlike other businesses, prostitutes do not depend much on reputation or word of mouth for sales, and a client who experiences a bad outcome is typically unable to spread the word to other potential clients. Fast food purveyor Chipotle’s sales dropped precipitously last year after news broke about E. Coli outbreaks at some of its stores, demonstrating the incentives restaurants have to avoid such outcomes. By contrast, prostitutes have much weaker incentives to test themselves frequently and use protection to avoid the spread of sexually transmitted infections.
All of this basic economic theory of prostitution is logical enough. But is there evidence to support it? The answer is yes. A recent National Bureau of Economic Research study by economists Scott Cunningham and Manisha Shah examined an unexpected legalization of certain types of prostitution in Rhode Island due to a court ruling in 2003. Despite the fact that the prostitution market grew in Rhode Island as a consequence, the authors found that, relative to other states over the same time period, Rhode Island experienced a 31% reduction in rape offenses and a 39% reduction in gonorrhea cases.
Many people – with good reason – find the practice of prostitution distasteful and immoral. That is not sufficient, however, to justify legal prohibition. Many practices that are considered distasteful and immoral are not prohibited, including abortion, adultery, and viewing pornography. Legalization would therefore not make prostitution any more or less repugnant from a moral perspective, but it likely would serve to eliminate some of the violence and other misery suffered by those involved in the market.
Of arguments in favor of tolerating prostitution, the weakest is the economic. Like advocates of legalized marijuana sales and other underground transactions, partisans of legalizing prostitution point to enhanced taxable revenue streams, not to mention creation of secondary industries in apps, fashions, and efficient birth control. Market mechanisms would, in theory, reduce incentives for trafficking and official corruption, lower costs of policing minor offenses, and restore dignity to individual entrepreneurs. Yet legalization is just as likely to produce escort service conglomerates ruled by obscenely paid CEOs exploiting non-unionized employees.
We find it hard to think without confusion about the oldest profession, freighted as sexuality is by dogma and moral conflict. But prostitutes differ not much from professional athletes who wear out their bodies for the entertainment of others, and the best reason to legalize is to protect those victimized by far from “victimless” enterprises. Shielding juveniles and the poor from predators, coupled with better sex education, reasonable regulation, scheduled medical inspections, fair wages, and retirement plans would not turn a sex industry into the National Football League, but could foster better personal career choices, enlarged autonomy, and greater degrees of safety. If such measures allowed sex workers to attain a degree of respectability, of course, we would have to find a label other than “whores” to describe larcenous lobbyists, pharmaceutical executives, bankers, religious broadcasters, and politicians.
But those who argue whether prostitution should be legalized, decriminalized, criminalized, or combination thereof (as in the case of the so-called Nordic model) often miss the crucial reality that criminalization is not about what the laws on the book say, but about the targeting and persecution of communities and individuals deemed criminal, as the extra-legal executions and murders of Black men and women by the law enforcement and the dearth of prosecutions against such actions attest. Criminal laws do not make criminals; they are merely tools to further persecute those who are already labeled by the society as criminal.
That is why, while I welcome my fellow sex worker activists’ and allies’ efforts to decriminalize prostitution, I believe that the criminalization of sex workers who are people of color, trans women, immigrants, street youth, drug users, and other criminalized populations will continue unabated regardless of how the law might classify the legality of commercial sexual exchange. In fact, I have heard anecdotal stories from youth advocates in cities that have enacted “safe harbor” policies which prevent minors from being charged with the crime of prostitution that the constant harassment, abuse, and persecution of street youth engaging in sex trade by the police have not decreased as a result.
Even laws that ostensively target pimps and sex traffickers are in reality used to further criminalize young people of color (I heard the police chief of a city I lived at the time tell a crowd at a human trafficking community forum that we must “stop listening to that crap, rap music” in order to prevent sex trafficking), in addition to making it harder for people in the sex trade to help each other without committing the crime of “promoting prostitution,” which media often equate with “pimping” and human trafficking but does not necessarily involve coercion or exploitation.
Since around 2011, the federal government reframed “domestic minor sex trafficking” as part of the “gang problem,” setting the government’s “war on trafficking” on the same devastatingly racist trajectory as Richard Nixon’s “war on crimes,” Ronald Reagan’s “war on drugs,” and George W. Bush’s “war on terror.” In the meantime, the trafficking of foreign and domestic workers in our farms, factories, hotels, restaurants, and other businesses—none of which are predominantly owned by Black and brown people—remain unaddressed. We need to stop arguing in abstract about whether or not prostitution should be legal, and instead focus our attention on the white supremacy of our social, political, and legal institutions.
Prostitution Should NOT Be Legal (Or Decriminalized)
- "The ‘Pretty Woman’ fantasy is just that: a utopian idea that, as with the communist utopia, a naive idea that crumbles under the pressure of experience and education."
- Penny Young Nance // CEO & President, Concerned Women for America
- "Those who support decriminalization rely on the flawed logic that legalizing the buying and selling of people will somehow erase the abuse, neglect and trauma that creates the victims of the sex trade. Legalizing prostitution does nothing more than increase the demand for people who can be sold for sex."
- Katie Pedigo // Chief Executive Officer at New Friends New Life
Here are just three reality checks:
- In practice, prostitution always involves the abuse of women.
- Legalizing prostitution does not alleviate other types of sexual exploitation associated with it; it helps them thrive.
- Prostitution defiles a woman’s intrinsic value. I know this is an area not everyone wants to deal with, but here at Concerned Women for America (CWA), the nation’s largest public policy organization for women, we believe we are all created in the image of God and have intrinsic value, whatever sex, race, nationality, creed, etc. Women are to be respected and valued for who they are in their own right. No little girl dreams of a life of prostitution. Every story we hear brings out familial, societal, and/or cultural pressures that push a woman into prostitution. No woman should ever feel pressured into prostitution. If poverty is driving women to this, the public policy answer is to eradicate poverty, not to push women into a life of abuse and violence. In her book “Prostitution & Trafficking in Nevada: Making the Connections,” Melissa Farley, Ph.D., describes prostitution as a human rights violation. She describes it this way:
“[P]rostitution is a traumatic act of sexually exploitive predation. No matter how many lies are used to cover it up, prostitution is sexual predation, plain and simple. The existence of prostitution anywhere is society’s betrayal of women and its betrayal of those who are marginalized and, therefore, vulnerable because of their ethnicity or poverty or abuse or neglect.”
Those who support decriminalization rely on the flawed logic that legalizing the buying and selling of people will somehow erase the abuse, neglect and trauma that creates the victims of the sex trade. Legalizing prostitution does nothing more than increase the demand for people who can be sold for sex. Germany, which legalized prostitution in 2001, has since become a hotspot for sex tourism, with an estimated 400,000 prostituted women catering to 1 million men per day. Instead of discouraging people from buying and selling these victims, decriminalization would absolve them from their role in a market dependent upon a product which is primarily created through pain and abuse. Further, we as a society would be perpetuating an environment in which opportunistic enterprises would profit off the pain and suffering inflicted upon marginalized women and children.
In its position paper supporting decriminalization, Amnesty International concedes that “[y]ou cannot enter this debate without recognising that it is often women and men who live on the outskirts of society who are forced into sex work.” Decriminalizing the sex trade itself in no way means that people will no longer be forced into that trade. There is no evidence that people are refraining from selling their bodies for sex simply because it is illegal – put another way, there aren’t enough people waiting to willingly satisfy the increased demand that will follow decriminalization. Instead, that demand could only be met by expanding the same pool of vulnerable individuals currently being targeted, thus amplifying and multiplying the force, fraud and coercion now fueling the industry. The study published in World Development, “Does Legalized Prostitution Increase Human Trafficking?” examined 116 countries to analyze the relationship between decriminalizing prostitution and human trafficking. According to their findings, decriminalization is positively correlated with increased human trafficking, especially in wealthy democracies.
While some argue that decriminalization can empower women and reduce potential harm through regulation, the consideration must be made about what circumstances lead these vulnerable people, including children, to become the supply necessary to satisfy the market, and what becomes of them after they enter such an industry. Research clearly shows that decriminalizing the market doesn’t cleanse it – it only makes it bigger. Indeed, the only people who truly benefit from decriminalization are pimps/traffickers, johns and opportunistic profiteers. We, as a society, need to protect the most vulnerable. Who are more vulnerable than abused, neglected children and the broken adults they become?
Prostitution, because it entails such deeply personal and moralistic behavior, generates conflict between those who engage in it and defend its practice, and those who don’t engage in it and oppose it. That conflict might be on moral or religious grounds (offending some social mores and threatening some social institutions), on commercial grounds (promoting some commercial activities at the expense of others), on public-health grounds (facilitating the spread of disease), or on aesthetic grounds (altering the visual milieu in which it is practiced). Where such conflict exists, police are likely to be called upon to keep the peace.
Because it entails sexual activity between strangers, prostitution also increases the risks of transmitting various communicable diseases. A strong public-health regulatory scheme can help manage those risks, but probably not eliminate them.
Prostitution also generates risks that people who are other than fully rational adults will get drawn into its practice. Minors and those addicted to dangerous drugs are particularly vulnerable to being enticed or coerced into prostitution against their better long-term interests.
And prostitution is often accompanied by a range of other illegal or illicit activities (illegal drug use and trafficking, robbery, assault, and organized crime being among the most prominent) whereby one’s participation in one illicit activity can lead to becoming enmeshed in others.
Given that humans’ desire for casual, anonymous sex is unlikely to disappear anytime soon, whether jurisdictions choose to make prostitution legal or illegal is only one of many choices they must make as to how best to manage the social harms that inevitably accompany commercial sex, particularly the physical, psychological and medical harm that often befalls those drawn into its practice out of desperation or coercion. Prostitution may be innate to human nature, but it hardly promotes the better of that nature.
The question of whether or not prostitution should be legal falls squarely in the realm of morality policy. Since it involves what many have long considered sinful behavior, deliberations on the topic are often driven by core values of right and wrong about which people tend to be inflexible. The question, in starkest terms, regards a transaction between buyers and sellers, and wonders whether there ought to be a continued role for government in banning or regulating it. From a purely economic perspective, such intervention might only be warranted if there were some kind of market failure involved, or, from a purely libertarian viewpoint, not at all. But the morally fraught nature of the question more generally, despite the evolution of social mores, and the ascendance of market thinking, renders a strictly economic framework insufficient. Ethical theories offer competing considerations, but get us closer to encapsulating the conflicting values at play in the public sphere where prostitution is concerned.
Much policy is utilitarian in nature, based on some semblance of rational assessment of the greatest good for the greatest number of citizens. There are ostensibly benefits to be gained from legalization of prostitution, both materially for public health and ideally for personal autonomy. Where prostitution is legal, safeguards against sexually transmitted infections can be instituted, and rules put in place to ensure that sex workers are being treated fairly and are participating in the trade freely. Yet a casual review of the evidence where such policies have been put in place yields conflicting results, with some suggesting that legal prostitution is actually associated with higher rates of human trafficking. Though relatively few jurisdictions have implemented, or currently seem likely to consider, legalization of prostitution, any that do ought to examine existing evidence of policy outcomes.
Opposition to legal prostitution may be motivated by communitarian thought, which favors laws protecting traditional family structures and values, or paternalism, which sometimes limits women’s control of their own bodies, supposedly for their own good, such as in the case of abortion law. These, in my view, are not sufficiently justifiable grounds to oppose legalized prostitution.
Yet, laws and policies both reflect and contribute to perpetuating existing social constructions and values. The legalization of prostitution could arguably exacerbate the objectification and commodification of women in society, particularly in cultures where these historical habits have yet to be overcome. Modern markets offer new opportunities for women to sell their reproductive capacities, including the practices of egg donation (a misnomer, as “donors” are usually paid) and gestational surrogacy. While it can be argued that autonomous women, who have a property in their own bodies, ought to be able to freely choose to offer them for sale, it is worth noting that relatively few who are not subject to gender or economic inequality, or compelled by economic need, actually choose to do so.
On the other side of the debate, some left-leaning libertarians, who seek maximum expansion of individual liberty beyond state control and oppressive, moral ideologies of dominant, religious mainstream groups, would see things differently. Perhaps under the Due Process clause of the Fourteenth Amendment of the U.S. Constitution, and its sacrosanct liberty and privacy interests, they would argue that decisions of the utmost personal significance, for example sexual acts, should be left to consenting adults, which would therefore include the commercialization of sex. (Only when it serves some unavoidable state interest, such as national security, can burdens be imposed on individuals’ privacy rights that are not undue.)
Historians may argue that in fact most of our juridical, institutional, state, civil society infrastructures developed over the last two centuries in the modern West in a haphazard way and that no underlying moral logic has determined our ‘historical progress’ towards an ‘enlightened’ modern civilization. This in turn shaped twentieth century attitudes for or against prostitution; that is ‘against’ if it stemmed from a nineteenth century Victorian, bourgeois Christian moral ideology or ‘for’ prostitution in response to that ideology and in opposition to it. Hence all of our positions in the debate are rooted in historical contexts for which we remain largely unaware.
Lastly, some may point to the modern state of marriage, and its fragmentation or evolution (depending upon your perspective as a pessimist or an optimist) with increasing divorce rates or increasing numbers of people remaining single from the time they reach adulthood. Fading away is the secular-legal social contract between two individuals based on romantic attraction and chivalric gestures born in the eighteenth century against thousands of years of patriarchal dominance in which marriage was seen as a commercial transfer of property of women from one household to another across different religious cultures and civilizations.
Yet all these perspectives stem from the domestic case here in the U.S., even though the U.S. sits within the larger context of modern Western history. What is interesting are ethical debates regarding the recognition that prostitution is a global phenomenon by which different cultures and states respond differently even though it is safe to say that no major religion in the world would accept prostitution as legal, let alone moral. This raises the thorny issue of an instance in which legalization of prostitution - or at least not opposing its existence as something ‘illegal’ - has to take into account other social justice goals and missions like the health of sex workers and prevention of HIV/AIDs in developing countries.
During the Bush era, legislation was passed to fund billions of dollars towards addressing HIV/AIDs in developing countries. However, there was a caveat to this noble goal. Congress wrote in the 2003 law called The United States Leadership Act Against HIV, Tuberculosis, and Malaria, two conditions, namely funding can’t go towards the promotion of prostitution in developing countries and NGOS who receive funding must specifically have in their mission statements explicit opposition to prostitution. The constitutionality of the law was questioned by the U.S. Supreme Court in 2013 in Agency for International Development Et Al. v. Alliance for Open Society International, Inc. Et Al. The Court ultimately decided that the law violated the First Amendment in which Government can’t compel a funded program what to say based on a belief (in this case prostitution should be banned) that is not within the mission or scope of work of the organization (in this case combatting HIV/AIDs.)
Naturally, a trade-off arises. Is it more important to make prostitution illegal given that many believe this exploits people’s bodies and deprives them of a fundamental right to dignity, enshrined in the U.N. Declaration of Human Rights? Or should we be more pragmatic and recognize that the phenomenon exists globally under different contexts, and that the right to health supersedes a moral right to dignity (defined differently by different states and cultures) in which case prostitution should at least be acknowledged as something that persists? Does this give enough weight to the argument that prostitution should be made legal? By making the phenomenon legal, then those engaged in it will be protected under certain legal rights of protection and health services, and concomitant duties by the state and civil society to protect and defend those basic rights. In that case the argument against it from a moral-religious perspective may collapse. But that still leaves the basic question whether the commodification of sexual labor is exploitative, and for many that is the case and hence grounds for its abolition.
Prostitution exists because inequality exists. Prostitution embeds into society the very inequality it feeds on. For prostitution to exist as a monetary exchange, women must be commodified as products in the stream of commerce. Legalizing prostitution has a harmful impact on every indicator of violence against women. A thriving sex industry increases child prostitution and other sex crimes and has a negative effect on how women are regarded by men. The men who engage in it have more discriminatory attitudes toward women and are more accepting of prostitution and rape myths as well as being more violent themselves. Violence against women and children increases when prostitution increases because acceptance or normalization of prostitution sets up the image of women as suitable targets of violence.
Many women are forced into prostitution for economic, and indeed sheer survival, reasons; this does not constitute “consent.” In the United States, nearly eighty percent of prostituted women report a history of child abuse and twelve to fourteen is the average age at which children are first used in commercial sex. At that age, a child cannot legally quit school, marry, sign a contract, or drive a car. Nor can she give “consent” to enter prostitution.
The answer to the poverty of women cannot be prostitution but must be the fair distribution of power and resources. Maintaining prostitution as the last refuge for poverty stricken women is exploitation and cannot lead to gender equality. So long as prostitution remains an “option” for poor women, there is no incentive to develop educational opportunities, job programs, or economic policies that could uplift the poor.
Experiments in legalization have failed. Amsterdam Mayor Job Cohen said, “Almost five years after the lifting of the brothel ban, we have to acknowledge that the aims of the law have not been reached. Lately we've received more and more signals that abuse still continues.” According to the Amsterdam police, “We are in the midst of modern slavery.” In New Zealand, a 200% to 400% increase in street prostitution has been reported since prostitution was decriminalized. Police say organized crime groups are involved in many aspects of prostitution. In Victoria, Australia, the number of legal brothels doubled, and illegal brothels increased by 300%.
Prostitution has extremely negative legal and practical consequences for women and women’s rights. A society where full gender equality exists cannot at the same time support the idea that women are commodities that can be bought, sold, and sexually exploited. Prostitution is not only discrimination, exploitation and abuse by an individual man or men, but also a structure reflecting and maintaining inequality between men and women, north and south, white and non-white. Prostitution is the sexualization of power based on gender, class, and ethnicity and negatively impacts society’s view of women. Abolition is the only solution.
Image: Madzia71 / iStock.
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