Why Prostitution Should Be Decriminalized
COYOTE’s position on prostitution is that it should be decriminalized rather than legalized, for all private, consenting adult commercial sex. Any public activity (such as solicitation) can be regulated as other public activities are, and thus the concern over prostitution in one’s neighborhood on the street is not a factor in decriminalization.
There is a criteria which can be applied to any activity that occurs anywhere, and that is this- is the activity in and of itself illegal- regardless of the exchange of money? If it is not illegal, then the exchange of money has nothing to do with it- if, however, activity is prohibited regardless of any financial considerations, the exchange of money is totally irrelevant. For instance, can people currently engage in public sex (without the exchange of money)? The answer is no. Neither can they trespass, litter, loiter or cause traffic congestion. . . etc. So activities (regardless of the exchange of money) which result in violations of existing private property rights or other individual rights will continue to be illegal.
Applying the same criteria to private consenting adult sex- whatever is not prohibited in the privacy of one’s home (or hotel) when there is no financial consideration involved, should not be a crime when money is freely and consentually exchanged.
The legalized system in Nevada is often discussed as a model for other states. The women work out of brothels and have little control of their working conditions. Unfortunately, it appears that by legalizing rather than decriminalizing prostitution, we end up exchanging one exploitive system for another- one set of bureaucrats for another. Many prostitutes simply cannot or would not work within the confines of a brothel. Perhaps brothels are an ideal situation for the male clients- a man gets to go to a place where all the women are lined up waiting to be chosen- but it is an extremely uncomfortable, degrading situation for women such as myself. That is not to say that brothels should be excluded from the picture- not at all. They should be one of the many ways women can work- as they already do. If a woman opts to work in such an environment, safeguards should be taken that she is not coerced into working conditions that no other worker in any other profession would be expected to tolerate. Unions might be appropriate for that.
Government run brothels would be the prostitute’s worse nightmare. I can think of nothing worse than having to work for a bureaucrat- especially in the sex- industry, where there is already a long and well documented history of abuse by the police- and prior to the criminalization of prostitution at the turn of the century- by the licensing bureaucrats and the police. Some people think that it is unlikely that a situation would arise such as existed at the turn of the century which originally caused such concern for the plight of the prostitute and led to reform (albeit unsuccessful)- that of the abusive and exploitive bureaucrat. Unfortunately, the situation already exists in the person of the police officer (a government agent) who, by having the power to arrest the women in the name of protecting them from being exploited, extorts, rapes and kills them. This is not a hysterical exaggeration of the facts on my part, but is a well documented tragic phenomenon. Surely, if it can happen to prostitutes in 1994 at the hands of our law enforcement officers, it can happen at the hands of the licensing bureaucrat, who, having no more incentive not to abuse the women than the police officer, will revert to the old ways that led to the reform movement in the first place. (A look at the history of the prohibition of prostitution at the beginning of this century makes it abundantly clear that government agents cannot now or ever could be trusted to protect women in the sex industry.
Then we come to the myth of the STD’s. Most people are not aware that prostitutes are responsible for less than 3% of the sexually transmitted diseases in this country. The Center for Disease Control has conducted many studies on both legal and the underground prostitution businesses, and the studies show that the majority of sexually transmitted diseases are attributable to high school and college age people, and that prostitutes (unless we are talking about the street-walking, drug addicted kind- which accounts for about 10-15% of all working prostitutes, and again, would not be included in the decriminalization of private, consenting adult commercial sex for the reasons discussed before) have been practicing safe sex and using condoms for years. Of course, we want to continue to have fewer and fewer cases of STD’s, so the women should be able to negotiate health services through agencies the way other businesses do, whether or not they work in a brothel. If they work independently, they could join a co-op and buy health insurance at reduced rates, or they could continue to obtain health services through a private practitioner. In a system where there is open competition for clients, the clients would be able to request that their sex service provider have a certificate of health. Rather than having a licensing system, which does not ensure the safety of anyone, a healthy dose of competition, as well as being made to be responsible for any transmission of an STD to a client- would lead to greater care in maintaining one’s physical health regularly. (If a client were to transmit a disease to a prostitute, the prostitute could have some protective insurance to pay for her treatment and disability. She would not be able to sue the client, unless it could be proved that he deliberately infected her, knowing that he was already infected.)
Some people argue that once a legalized system is in place, decriminalization could then take place. Unfortunately, that is not the way it works. The government does not relinquish it’s power and control, and it is unrealistic to believe otherwise. Once established, a legalized system will not give way to a laissez- faire one. By the way, we are not in favor of licensing- it is one of the major abuses that occurred a century ago, and would continue today- because of the nature of the work and human nature. The license does nothing to ensure the safety of either the customer or the prostitute. That is not to say that women shouldn’t have frequent medical testing- they should. But, the ultimate factor in determining how adequate the woman’s medical inspection was is her ability to have a repeat clientele. If a woman gains a reputation of transmitting diseases, she will not continue to work for very long. Just as a restaurant will lose it’s reputation if the food isn’t fresh or it serves tainted food and it’s customers become ill- so will the free market regulate the health standards of the working women.
Suggested further reading:
COMMERCIAL SEX AND THE RIGHTS OF THE PERSON- A MORAL ARGUMENT FOR THE DECRIMINALIZATION OF PROSTITUTION– BY DAVID A. J. RICHARDS THE UNIVERSITY OF PENNSYLVANIA LAW REVIEW VOL. 127. NO 1195 MAY 1979
AIDS PROSTITUTION AND THE USE OF HISTORICAL STEREOTYPES TO LEGISLATE SEXUALITY – JOHN MARSHALL LAW REVIEW, SUMMER 1988, BY BETH BERGMAN
THE CHALLENGE OF CRIME IN A FREE SOCIETY – A REPORT BY THE PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE
NEW YORK STATE BAR ASSOCIATION HEARINGS: WHAT LAWS SHOULD GOVERN PROSTITUTION – COMMITTEE REPORT – COMMITTEE ON REVISION OF CRIMINAL LAW; JANUARY 1986
PROSTITUTION: A FEMINIST ANALYSIS – THE WOMEN’S RIGHTS LAW REPORTER, SUMMER, 1989 BY BELINDA COOPER
CONTRACTARIANS AND FEMINISTS DEBATE PROSTITUTION – NEW YORK UNIVERSITY REVIEW OF LAW AND SOCIAL CHANGE. 1990-1991 BY SIBYL SCHWARZENBACH
NEW YORK SUPPLEMENT “IN RE P’ – DECEMBER 1977 DECISION BY JUDGE MARGARET TAYLOR FAMILY COURT NEW YORK COUNTY
THE HIGHEST PAYING CUSTOMERS: AMERICA’S CITIES AND THE COSTS OF PROSTITUTION CONTROL – A REPORT IN THE HASTINGS LAW JOURNAL VOLUME 38 NUMBER 4 APRIL 1987 BY JULIE PEARL
EXCERPTS FROM CRIME AND CRIMINOLOGY : CRIMINALIZATION OF CRIMES WITHOUT VICTIMS SUE TITUS REID, J.D. PHD. UNIVERSITY OF WASHINGTON SCHOOL OF LAW 1976