Legalizing Prostitution

“Baby, cash money.”  With these words a Colombian prostitute initiated a deal with a U.S. Secret Service Agent that would eventually create a scandal and embarrass the entire agency.  Widely considered the “world’s oldest profession”­­––prostitution is the act of performing sexual acts in exchange for money.  It’s interesting though, that the world’s oldest profession is a crime in many places.  Just last week, on September 25, 2012, Anne Gristina plead guilty to running a prostitution ring in New York.  She’s not the first person to be convicted of assisting with prostitution.  Heidi Fleiss is one of the more famous people who got convicted for participating in the prostitution.  Around the world, in a survey of one hundred countries, at least 61% have some form of legal prostitution.  Today in the United States, prostitution is illegal everywhere except for 11 counties in Nevada.  Should prostitution be a crime in the U.S.?   

 There are strong opinions on both sides of the fence regarding prostitution.  One side thinks that prostitution should be a crime because it’s immoral and leads to additional criminal activity, as well as the spread of sexually transmitted diseases.  On the other side is a group that believes prostitution should not be a criminal violation and prostitutes should be recognized as workers like everyone else.  Among those that advocate for non-criminal prostitution, there are those in favor of legalizing prostitution and those in favor of decriminalization.  Legalization entails the state regulating a particular practice––here the practice of prostitution.  Decriminalization is when the state has no laws related to the practice.  Proponents of decriminalizing prostitution advocate for the removal of all laws related to prostitution.  There would be no criminal laws under which prostitutes could be punished.  This would allow prostitute to seek legal assistance if cheated or assaulted and would reduce law enforcement costs of policing and prosecuting prostitutes.[1] 

Arguments for Legalized Prostitution	Arguments Against Legalized Prostitution
·      Increased rights for prostitutes ·      Decrease in public expenditures on prosecuting prostitutes and customers ·      Increased safety for prostitutes ·      Increased revenue for the state in the form of taxes ·      Liberation of women from the paternalistic bonds of the government	·      It’s immoral ·      Exploits women ·      Increases crime ·      Attracts prostitutes from countries where it is illegal ·      Spreads sexually transmitted diseases ·      Will eventually lead to a decreased in the quality of life prostitutes

Why Legal Prostitution Can Work

Prostitution should be legalized instead of decriminalized.  Prostitution is an industry that should be regulated in some way––mainly for the purpose of ensuring the safety of prostitutes and promoting the protection of their employment rights.  It should not be regulated in order to perpetuate gender stereotypes and paternalism by the government.

Western society has a long history of enacting paternalistic laws, which in effect, control the behavior of women.  For example, women were prohibited from engaging in many professions simply because they of their gender.  In a Supreme Court case, Bradwell v. State, Bradwell, a woman, was denied the opportunity to practice law because “natural and proper timidity and delicacy [of] the female sex” make her unfit to do many occupations.  The criminalization of prostitution is a remnant of this time.  The state is essentially telling women what is best for them, what job they can have, and under what circumstances they can engage in sexual behavior.  Criminalizing prostitution infringes upon the individual liberty a woman has to decide whom to have sex with and to choose the employment that she desires.  The state should not be in the business of regulating how an individual uses her body.  State regulation of behavior based on the state’s interpretation of morality is wrong.  We saw this back during the days of miscegenation, when the state prohibited individuals of different races from marrying.  Loving v. Virginia was the case that led to the decriminalization of this practice.  The Lovings (a White husband and Black wife) were convicted and sentenced to jail for being married since they were not the same race.  This was considered a morally right practice––frequently, scriptures from the Bible were cited in support of the practice.  Today, we see regulating behavior based on morality in the gay marriage debate.[2]  States are regulating whom people can marry largely due to moral justifications.  While everyone is able to have her or his own opinions about what is right and moral, the state should not impose its morals on its citizens.

Prostitutes should be considered employees in their chosen field.  They deserve the same rights and protections that other employees enjoy.  In a country where prostitution is legal, a prostitute may able to break the chains of the pimp and avoid much of the danger associated with the job.  She can work for herself, choose her clients, and work in a safe work environment.  She does not have to worry about being fearful of reporting crime committed against her and can get benefits like her counterparts who are not in the sex industry.

Some argue that legalizing prostitution will encourage or increase human trafficking.  This claim has little merit.  It is entirely possible for the state to legalize prostitution and at the same time prohibit the forcing of individuals into prostitution.  Legalizing prostitution will have no effect on federal laws prohibiting human trafficking.  In fact, decriminalization or legalization of prostitution could decrease human trafficking.  Right now, because there is no legitimate market for prostitutes, individuals are trafficked in to meet the demand.  If women (and men) were able to be prostitutes legally, there is likely a large number of people who would be prostitutes, but for its illegal status.  The amount of prostitutes will increase when it is legalized and there will be enough workers to meet the demand.

There are a number of regulated regimes under which legal prostitution could operate.  One option is the decriminalization model, where all existing laws related to the prohibition are removed and it is allowed to operate on its own.  Another alternative is to allow prostitution to be legal but maintain statutes prohibiting pimping, a situation when a person serves as an “agent” of a prostitute and takes some of her earnings, and statutes prohibiting others from financially benefitting off prostitution.  Yet another model used in some countries is to allow prostitution, but criminalize street prostitution.  The model used in most of the counties in Nevada where prostitution is legal, is to allow it in certain cities and only in state regulated brothels. 

Legal prostitution can work in the United States; even though it may have some negative drawbacks like any other profession.   It may take much time for the stigma associated with it to erode, however through state regulation, prostitution can be a safe, legitimate and profitable business

Bethany J. Peak

Blogger, Criminal Law Brief

Author’s Note:  Throughout the blog I refer to prostitutes as women only for ease of writing. I understand that there are men prostitutes as well, however, since the majority are women, I focus on their concerns.

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[1] Michael Conant, Federalism, the Mann Act, and the Imperative to Decriminalize Prostitution, 5 Cornell J.L. & Pub. Pol'y 99 (1996).

[2] Dent Jr., George, The Defense of Traditional Marriage, 15 J.L. & Pol. 581, 588 (1999), (commenting that “. . . moral considerations are appropriate in law-making . . . “)