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Law
Prostitution: Should it be Legalized or Criminalized?
Attitudes toward prostitution in the United States have long been based on the Judeo-Christian tradition arguing that selling sex is immoral; however, global trends arguing for sexual self-determination and changing attitudes toward the sex industry have become more popular. The United Nations Secretary General has even called for the decriminalization of sex work. These changes pose the question: how should the United States address the issue of prostitution?
The U.S. still criminalizes sex work, but the urgency of making changes in this sphere is evident in the growing sex worker rights movement that strives to define the legal status and rights of prostitutes. Read on to learn more about different models of regulating prostitution, and the arguments for and against them.
What are the real numbers behind prostitution?
Prostitution is “the act of offering one’s self for hire to engage in sexual relations.” In other words, it’s an exchange of a sexual act for money.
It’s hard to determine the real numbers behind prostitution due to the fact that sex work is criminalized in the United States. As most of the actors involved in this business operate underground, statistics are rather scarce. Some estimates of the current number of prostitutes range from 230,000 to 350,000, but others put the number closer to one million.
Prostitutes come from a variety of backgrounds. Indisputably, there are those who come from marginalized and impoverished environments, were sexually abused, homeless, poorly educated, or drug addicted. In addition, some women and men are coerced or trafficked into prostitution. Every year thousands of people are trafficked for the purposes of exploitation, including sexual exploitation. However, this doesn’t mean that all prostitutes are forced or trafficked. There are also those who chose to become involved in sex work of their own volition. These people can have different motivations to enter the sex industry, citing high earnings, flexible work hours, or genuine passion for this line of work.
Should prostitution be decriminalized, legalized, or none of the above?
Generally, you hear about three distinct approaches to prostitution: criminalization, decriminalization, and legalization. All of them are rooted in different ideological perspectives and include diverse goals and contrasting methods of achieving their desired objectives. Watch the video below to learn more about the ongoing debate over prostitution.
Criminalization
Prostitution is criminalized in most parts of the United States. Proponents of this view often believe that prostitution is immoral, and therefore label it as a criminal behavior. In their view, prostitution endangers marriages and is simply wrong. Prostitutes are viewed as criminals who behave illegally. The rhetoric of those who support criminalization is often centered on the notion that such alternatives as legalization will have devastating consequences on the American morale.
The supporters of criminalization also connect legal prostitution with increased sex trafficking, the spread of STDs, and a greater number of children being coerced into the sex industry. Watch the video below to learn more about Catharine MacKinnon’s arguments against the legalization of prostitution and its connection with human trafficking.
Decriminalization
Decriminalization means the removal of certain criminal laws related to the operation of the sex industry. When prostitution is decriminalized, consensual adult sexual activity in a commercial setting is no longer viewed as a crime. Decriminalization can be considered a half step toward legalization as individuals engaged in the business can be required to obtain a special permit or be subjected to penalties. Essentially, if a person is caught in the act, his punishment will be no more than a fine, something along the lines of speeding or a parking ticket.
At the same time, decriminalization doesn’t legalize sex work, but does instruct law enforcement to give low priority to prostitution cases. This approach intends to use the already existing legal mechanisms to support the health and safety of prostitutes. Many advocates of decriminalization cite labor and anti-discrimination laws as arguments to grant prostitutes certain rights, including freedom of choice and self-regulation.
Decriminalized systems often still impose criminal penalties for all other actors involved in the business, including clients and pimps. This perspective is rooted in the abolitionist movement that historically rescued women from prostitution and trained them for alternative careers. In this view, prostitutes are victims of male exploitation and supporters of this approach often consider prostitution demeaning to women.
The ultimate goal of decriminalization is to uproot the profession by targeting those who purchase sex in the first place. It’s believed that by eradicating the demand, the supply will subside on its own. The advocates of this form of decriminalization usually strongly oppose legalization that will make the sex business flourish instead of extinguishing the industry.
The Swedish Model
The Swedish model is the most influential decriminalization example. Since 1999, buying sex in Sweden is a criminal offense punishable by fines or up to six months imprisonment. Contrarily, selling of sexual services is not a criminal offense, meaning that prostitutes are not subjected to criminal law proceedings. The law is popular in Sweden–80 percent of the Swedish population supports the initiative, but many are still skeptical of its effectiveness.
The Swedish model was also adopted in Norway and Iceland. In 2014, Canada moved to this model of controlling public solicitation of prostitution and restricting demand on sexual services. In addition, similar decriminalization models were adopted in Nepal, India, American Samoa, Bhutan, Cambodia, China, Fiji, Guam, Republic of Korea, Palau, and Taiwan.
What are the arguments in favor of decriminalization?
Decriminalization of prostitution can arguably decrease violence against prostitutes. A study in San Francisco found that 82 percent of prostitutes have been assaulted and 68 percent were raped during their time working in the sex industry. Another study in Colorado Springs found that prostitutes were 18 times more likely to be murdered than non-prostitute women of their demographic. If sex work is criminalized, prostitutes are reluctant to ask for help or go to the police if victimized. If decriminalized, prostitutes and law enforcement will have an avenue for communication, and if a prostitute is victimized she can report the crime to the police without the fear of being charged and detained for prostitution.
Decriminalization can also benefit the investigation of sex trafficking cases as prostitutes can aid law enforcement with information from the inside. In addition, law enforcement can save valuable resources as police departments won’t need to deal with as many prostitution cases. In 2011, Texas alone spent $8 million on prison expenses related to prostitution. Decriminalization won’t eliminate the financial burden completely as pimps and johns are often criminalized in those countries who adhere to decriminalization model, but it can decrease expenses overall and re-direct resources towards other crimes.
What are the arguments against decriminalization?
Criminalization of sexual services for clients, and not for prostitutes, can be challenging as both those who purchase and provide sexual services are unlikely to admit to the transaction. Clients will be reluctant to do so due to the existing criminal laws, while prostitutes can lose their income and clientele if they aid law enforcement. In fact, several independent studies have shown that current laws have pushed some Swedish prostitutes underground, resulting in an increased danger of victimization.
Those who oppose the Swedish approach to prostitution are also concerned with its unintended consequences of stigmatization and marginalization of those who enter the sex industry of their own volition. The Swedish model doesn’t acknowledge that prostitutes can choose this occupation out of their free will, but view all prostitutes as passive victims of violence and abuse.
Overall, there isn’t much evidence that this approach improves the quality of work and life of sex workers, or decreases HIV or STD transmissions. Even through the Swedish model is popular around the world, both the Swedish and the international experiences don’t provide enough indications of decline in prostitution.
Legalization
Legalization usually involves a system of laws and government regulations that define the operation of the sex industry. Such a system can be highly regulated or merely define the legal conditions under which prostitutes can operate. Legalization is often accompanied by strict criminal penalties for those who operate outside the established framework. Prostitutes are often required to pay special taxes, can work only in specified zones, and to register with the government. In addition, prostitutes are often obligated to regularly undergo health checks, and to obtain special licenses to legally operate as a sex workers. Thus, the legalization of prostitution seeks to control, regulate, and define the rules of the sex industry.
The legalization model emphasizes freedom of personal choice and regards prostitution as a form of work. The supporters of this approach maintain the belief that sexual relations between two consenting adults should’t be criminalized as those who engage in this type of relations do so voluntarily. This rhetoric is centered on the notion that people are free to choose what to do with their bodies and, therefore, entering into contracts to provide sexual services is their right that shouldn’t be undermined by the views of those who don’t agree with their decision. At the same time, advocates for legalization acknowledge that people can be forced or coerced into prostitution. They also acknowledge the existence of trafficking and exploitation, but don’t believe that all women are victims, and that prostitution automatically leads to violence.
European Experiences
The Netherlands and Germany are, probably, the most prominent examples of legalization. The Netherlands legalized prostitution in 2000, and it’s now regulated by the country’s labor laws. Germany followed in 2002 by providing prostitutes with legal protections and social insurance. In both countries the sex industry boomed, resulting in increased numbers of legal brothels and prostitutes, but also prompted concerns over increased cases of human trafficking.
Nevada’s Legal Brothels
The state of Nevada has a long history of regulating prostitution in some counties, starting in 1937 when a law was enacted to require weekly health checks for all prostitutes. In 1971, Nevada began taxing brothels, thus legalizing the sex industry in rural counties of the state. As of now, there are around 500 prostitutes who are working in 30 brothels. A recent study found that 84 percent of the surveyed prostitutes in Nevada felt safe working in the legal brothels, and were not trafficked or coerced into prostitution. Contrary to the European countries that have legalized prostitution, Nevada’s sex workers are considered independent contractors. Consequently, they don’t receive unemployment, retirement, or healthcare benefits.
What are the arguments for legalization?
All arguments cited earlier in support of the decriminalization model, such as decreased violence, better cooperation with police, and re-direction of valuable law enforcement resources, can be relevant when taking about legalization, as well.
The advocates for legalization argue that such a model of regulating prostitution can provide even more safety for prostitutes. Legal brothels are often closely observed and monitored by the law enforcement agencies to ensure compliance with safety regulations and to prevent sex trafficking cases. Legalization can also completely eliminate the financial burden from police departments as there will be no prostitution cases to pursue. It’s estimated that in 2010, California alone arrested 11,334 people for prostitution. In Texas, an average of 350 prostitutes are sentenced to serve time in state prisons yearly. Proponents argue that legalization can decrease the prison population and save state resources that otherwise would be used to investigate, prosecute, sentence, and house those who are charged with this “victimless” crime.
In addition, legalization advocates argue that condom requirements and mandatory HIV and STD testing can reduce health risks for prostitutes and clients alike. If sex work is criminalized, fewer prostitutes will have access to testing services and fewer of them will practice safe sex. It was found that in the United States only three to five percent of STDs can be attributed to prostitution, supporting the argument that prostitutes are not vehicles of HIV and STD transmissions. The number of prostitutes infected with STDs in New Zealand and New South Wales, where prostitution is legalized, is very low or non-existent. In Nevada, there were no registered cases of HIV among legal sex workers. Watch the video below to learn more about Nevada’s health regulations and condom requirements for legal prostitutes.
Another argument is the revenue that legalized prostitution can bring in the form of income taxes. According to some estimates based on the current income of Nevada’s legal prostitutes, legalization can generate $20,000 in federal income taxes per person per year. Not only could this money be used to provide more social and health services for prostitutes, but could be spent on other governmental needs as well.
Perhaps the biggest and the most controversial argument in support of legalization of prostitution is the extension of labor rights and other occupational benefits to prostitutes. If prostitution is treated as any other profession, legal sex workers can be entitled to minimum wage, freedom from discrimination, and safe work environments. They can claim benefits, form or join unions, and get access to medical insurance and pension plans.
Lastly, supporters of legalization believe that prostitution is no different than pornography, lap-dancing, tobacco, alcohol, and gambling, which are all legal in the United States.
What are the arguments against legalization?
The most common argument against legalization of prostitution is its close connection with human trafficking and organized crime. The Netherlands’ legalization of sex work is cited as an example of a failing experiment as Amsterdam became a hub for traffickers and organized crime groups. The Dutch Justice Ministry closed over 320 prostitution windows as a part of the initiative to curb violence against migrant women, who are often forced by traffickers and pimps to work as window prostitutes in the city’s Red Light District.
The increase in child sexual exploitation is another point of concern for those who advocate against the legalization of prostitution. The adult sex industry is viewed as perpetuating the recruitment of children as sex workers, who also could be trafficked and coerced into sexual exploitation.
Prostitution is also thought to increase crime rates as it is a magnet for ancillary crimes, including drug, sex, and violent crimes. In this view, with any form of legalization those crimes can only increase as pimps and traffickers would have more legal avenues to conduct their illicit businesses.
Together with increased crime rates and human trafficking, legalization can give more power to pimps as they are transformed into businessmen. According to this assumption, working in legal brothels can increase the likelihood of victimization as women spend their time in closed spaces and have fewer resources to ask for help or seek protection against abuse. Prostitutes in one of Nevada’s brothels compared their working conditions to a prison environment as most of the time they were locked inside their rooms waiting for clients and could leave the premises only with their male pimps.
Those who oppose legalization of prostitution also state that prostitutes will continue to spread diseases, even if their services are legalized. As it can take up to two weeks to process STD tests, sex workers can continue to infect their clients, prompting the spread of infections and STDs, regardless of their legal status.
Conclusion
How to deal with prostitution is an endless topic of debate. As decriminalization has its benefits and pitfalls, so does legalization. Even though each model has a different set of goals, both converge on the opinion that prostitutes shouldn’t be criminalized. The United States needs to start participating in the international discussions and may soon consider an alternative to the outdated criminalization model.
Resources
Primary
Additional
RNW: FAQ – Prostitution in the Netherlands
Alternet: Should Prostitution be Legalized?
Business Insider: Everything You Ever Wanted to Know About Prostitution in Nevada
Business Insider: Seven Reasons Why America Should Legalize Prostitution
California State University Northridge: Should Contractual Sex Be Legalized?
CBS News: Prostitution Laws: Europeans Debate Whether Criminalization or Legalization Works Better
Difference Between Net: Difference Between Legalization and Decriminalization
Digital Journal: Amsterdam Courts Ready to Clean Up Red Light District
The New York Times: Labour Laws, Not Criminal Laws, Are the Solution to Prostitution
The New York Times: Legalizing Prostitution Leads to More Trafficking
The New York Times: Nevada’s Legal Brothels Make Workers Feel Safer
The New York Times: Nevada’s Legal Brothels are Coercive, too
Prostitution Education Network: Prostitution Law Reform: Defining Terms
The NAYked Truth: Prostitution: The Economic and Criminal Justice Benefits of Legalization
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