"Red-Light District" courtesy of [Oleksandr Kravchuk via Flickr]
Law
Prostitution: Should The “World’s Oldest Profession” Be a Profession?
When the topic of prostitution comes up in conversation, most typically do not consider it a potential career option. Instead, we tend to think of prostitutes as young girls who are exploited and forced into prostitution by older men. The victims and villains are clearly cast. This situation is all too common and many young women around the world– and yes, even here in the United States–are kept as sex slaves.
But there are also prostitutes who choose sex work as a profession: people, and not just women, who were not forced into becoming prostitutes but chose that as their career. And then there are people in the middle. People who were coerced into prostitution by economic circumstances but not outright force. Individuals who may want to leave but have no other options to fall back on and no social services to help them.
All three of these sets of circumstances need to be dealt with. Victims who have been enslaved, people who see prostitution as their vocation, and those in the middle. Policy initiatives and laws that attempt to deal with the sex trade need to come up with a way to address the needs of these three communities. Which policies provide the best supports for all three kinds of prostitution? Is there a way to eliminate abuse while empowering free choice?
Models for Prostitution
There are several different models to choose from in crafting legal and social policy to deal with prostitution. One method is to criminalize both the purchase and sale of sex. This approach is based on the notion that individuals on both sides of the issue are criminals and immoral actors. This view of prostitution, a Victorian morality model, is the least popular. People still often have a moral problem with prostitution but generally view the relationship as one of exploitation, rejecting the view that a prostitute is just as morally guilty as a pimp.
The more popular view of prostitution is that the purchaser and the facilitator (typically called a trafficker or a pimp) are the criminals and the person being sold for sex is the victim. This innocent victim model is the view that underlies efforts to either partially or completely decriminalize prostitution while promoting “end demand” initiatives. Those who hold this view want facilitators and purchasers to be punished in a variety of ways but would not punish prostitutes themselves.
This view is encapsulated by the following clip of a “20/20” documentary on prostitution. The prostitutes interviewed are portrayed as women who were victimized and ones we should be sympathetic toward.
The third model of prostitution is one that acknowledges the existence of non-victim prostitutes, an entrepreneur model, which therefore advocates for the legalization of prostitution. This model is the most controversial because it would place prostitution on the same moral footing as other “vice” crimes, such as gambling. This would mean viewing it as something we may not personally like, but isn’t quite immoral enough to justify banning entirely. The moral stigma against prostitution is so heavily ingrained in our culture that most people reject the argument like, ‘it’s okay, it’s just like cigarettes really,’ on their face. But, the argument that prostitution isn’t as morally bad as cigarettes would not get much traction either.
Models for Policy
Recent efforts have been made in the United States to decriminalize prostitution and to push new “end demand” initiatives. Most of these efforts are actually efforts to decriminalize the sale of sex, as was done in Sweden, but keep trafficking or purchasing as punishable offenses. “End demand” initiatives seek to increase the penalties for clients who buy sex in an effort to make its purchase so costly and difficult that clients stop engaging in it. The hope is if clients do not feel that they can safely purchase sex, the industry will starve. As the demand for these services decreases, the incentive for traffickers and pimps to exploit sex workers will also dissipate.
End demand policies use a variety of instruments to make purchasing sex more difficult or costly. Fines, jail time, rehabilitation for solicitors, and good old-fashioned shaming like publishing offenders names in newspapers have all been used. But there isn’t any clear and convincing evidence that these methods actually do reduce the demand for sex work. On the contrary, there is some evidence that it may be making conditions for sex workers worse. While ending demand may free a sex worker from fear of prosecution, it keeps the pressure on clients, which may actually drive the market for sex even further into the shadows.
In Illinois, advocates of these initiatives, such as the Chicago Alliance Against Sexual Exploitation, go further in their attempts to end the demand for prostitution by trying to instill in young men the belief that buying sex is wrong. These campaigns are part of a larger sex-education plan that seeks to make commercial sex stigmatic not only for the prostitute but for potential clients as well. Legal changes are an important component, but cultural changes are also emphasized.
The biggest criticism of these efforts is that they do not help sex workers. Making it more difficult for clients to purchase sex not only affects the buyer but also the seller. One drawback for the sex worker is less time and transparency to negotiate. Because the rationale behind these policies is based on a model of prostitution involving a pimp-victim relationship, the end demand efforts don’t want to facilitate better discussions between clients and prostitutes. Some sex workers argue that these laws make their conditions less safe.
The other option is to legalize prostitution entirely. The following interview with Maggie McNeill, author of the blog The Honest Courtesan, does an excellent job of summarizing the viewpoint of those who argue that some voluntarily engage in prostitution and think it should be legalized.
The argument in favor of legalizing prostitution is best viewed as an argument in favor of the freedom to contract. It removes the moral stigma from prostitution found in both the Victorian and the end demand models and replaces them with a model of prostitution that includes those who freely choose it as a career. The entrepreneur model would argue that if a person wants to sell a sex act they should be free to do so–just as they are free to sell other personal services. There is also evidence in places where prostitution was legalized, as we saw in Rhode Island from 2003 to 2009, that the conditions for sex workers improve and violent crime is reduced.
This view does not deny that there are people, particularly women and children, who are enslaved as prostitutes. There are significant issues with the rape and abuse of prostitutes globally and in the United States, but supporters of the entrepreneurial model argue that the legal framework for combatting these abuses already exists. For example, to form a contract to commission a piece of artwork the purchaser and the buyer both need to be able to consent. Those who can’t consent because of age or mental incapacity can’t form that contract for art. Similarly, they wouldn’t be able to form that contract to sell or buy sex.
But for those concerned about violence and exploitation, to say that contract laws are enough of a tool to protect children from rape and trauma is insufficient. In fact, the most compelling criticism of this approach is that it does not do enough to combat violence. Other approaches may over-correct by disallowing voluntary prostitution, but that may be a better alternative for those whose primary goal is to end sexual violence.
The Murky Middle
There is perhaps a middle ground between the view of prostitution as pure victimhood and prostitution as the empowered entrepreneur. It’s a model that acknowledges the murky middle in which people become sex workers out of economic necessity, not through enslavement, but who may still need additional protections that are not present in other service industries should also be explored.
In contract law, a contract that is entered into because the defendant coerced the plaintiff with the threat of economic harm can be voided under the doctrine of “economic duress.” It’s a form duress that isn’t quite duress, yet may still be grounds to void a contract. However, it isn’t a very popular doctrine because it is so vague.
The court can grant relief to the plaintiff if they can show evidence of coercion or intimidation. This is not saying that the person is incapable of entering into any contract or that they would always be the victim in a contractual exchange. Rather, it merely acknowledges that in this particular contract his or her consent was not freely given and some restitution should be made.
Similarly, a middle-ground approach would acknowledge that there are contracts for sex that are entered into where both parties provide full consent. Those contracts, like the vast majority of contracts that we engage in every day with varying degrees of formality, would not need to be challenged. They may need to be regulated or taxed, like any other business, but they are not inherently void because of their subject matter.
This approach would also acknowledge that many of these contracts may be the product of coercion. In those cases, legal remedies to prosecute crimes such as rape, kidnapping, and theft should be employed. If they aren’t yet tough enough to bring violent criminals to justice, or not written in such a way to include crimes against sex workers, then they should be strengthened. Societal remedies and safety nets also need to be expanded so that sex workers who were victims of crimes can get some help, and so those who are at risk of becoming the victims of sexual slavery are prevented from becoming victims. Any change in policy, whatever the moral model it is based on, needs to include more tools for law enforcement to combat sex slavery. But supporting a vigorous effort to punish traffickers and slave traders isn’t tied to one set of policies for prostitution.
A great example of a combination approach to prostitution is how New Zealand treated the issue in 2003. According to the New Zealand’s Prostitute Collective, the sex workers of New Zealand gave input on the new laws in a push to reform local laws and policies. The results are a mixed bag of protections for sex workers, which also presuppose that there is a unique ethical concern with selling sex. For example, a sex worker cannot be compelled to have sex with a particular client and cannot have pay reduced for refusing sex with a particular client.
The law also adds in protections for sex workers under the age of 18 while borrowing from the end demand legislation ethos. It is a criminal offense for a manager or brothel owner to hire someone under the age of 18 for sex, or to pay for their services as a client. But it isn’t illegal to sell sex if you are under 18, meaning that punishment rests solely on the purchasers and traffickers.
Conclusion
The debate over how to deal with prostitution is an ongoing policy problem for everyone concerned about human trafficking. It also is an example of how moral sentiments and the way they can clash with modern interpretations of personal freedom can impact policy decisions.
Our culture makes intense moral judgments about sex workers. When we refer to someone as a “whore” it usually is not a comment on that person’s actual profession but meant as an insult. These moral judgments are unlikely to change in the near future and certainly won’t change just because a law or policy changes. But changes in policy can have a profound impact on the lives and safety of our citizens as evidenced by the dramatic change in the number of rapes in Rhode Island when prostitution was accidentally legalized. Whether they represent a true reduction in violence or a shifting of violence from a non-paid victim to a paid one is still debated. But if the goal is to craft a policy that will reduce violent crime and end sexual slavery then these various methods of doing so need to be debated on their practical merits as well as their moral implications.
Resources
Law Street Media: Prostitution: Should It Be Legalized or Criminalized?
BAYSWAN: Initiatives to “End Demand” For Prostitution Harm Women And Undermine Service Programs
GAATW: Moving Beyond Supply and Demand Catchphrases
The Stranger: Sex Workers Write Open Letters To Law Makers Over End Demand Bills
CATW International: Ending The Demand
Hughes, Hubbard, and Reed: The Economic Duress Doctrine- A U.S. Perspective
Cato Unbound: Perverse Incentives: Sex Work And The Law
The New York Times: A Misguided Moral Crusade
The Washington Post: When Rhode Island Accidentally Legalized Prostitution Rape Decreased Sharply
The Huffington Post: 9 Things You Did Not Know About American Prostitution
The New Zealand’s Prostitute Collective: The Prostitution Reform Act 2003
Comments