Defining Decriminalization and Legalization in Regard to Prostitution
Prostitution Law Reform: Defining Terms
There has been much debate over the last few decades about prostitution law reform. In the course of discussion, several terms are used to indicate current or preferred situations, alternatives and legal strategies. To understand the definitions of legalized, decriminalized, regulated prostitution, etc., we need to understand the context in which these terms are used.
Definitions Legalisation and Decriminalisation according to Scarlet Alliance, Australia
Scarlet Alliance and the Australian Federation of AIDS Organisations
Decriminalisation refers to the removal of all criminal laws relating to the operation of the sex industry. The decriminalisation model aims to support occupational health and safety and workplace issues through existing legal and workplace mechanisms.
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. Legalisation can be highly regulatory or merely define the operation of the various sectors of the sex industry. It can vary between rigid controls under legalised state controlled systems to privatising the sex industry within a legally defined framework. It is often accompanied by strict criminal penalties for sex industry businesses that operate outside the legal framework.
Defining terms for contemporary discussion
Although there have always been reformist efforts and movements concerning prostitution, the prostitutes’ rights movement, as we know it today, began in the late 60’s and early 70’s. The difference between the contemporary prostitutes’ movement and previous efforts is that the current movement has been defined in a large part by prostitutes themselves. Prostitute activists have defined prostitutes’ legal status in specific ways since the beginning of the prostitutes’ rights movement. The current movement includes a recognition of the rights of prostitutes to autonomy and self-regulation.
Common definitions of legalization
There is no official definition of legalized or decriminalized prostitution. Those who are not familiar with the contemporary discussion about prostitution law reform usually use the term “legalization” to mean any alternative to absolute criminalization, ranging from licensing of brothels to the lack of any laws about prostitution. Most references to law reform in the media and in other contemporary contexts use the term “legalization” to refer to any system that allows some prostitution. These common definitions of legalization are extremely broad. Conflicting interpretations of this term often cause confusion in a discussion of reform.
Many (or most) societies that allow prostitution do so by giving the state control over the lives and businesses of those who work as prostitutes. Legalization often includes special taxes for prostitutes, restricting prostitutes to working in brothels or in certain zones, licenses, registration of prostitutes and government records of individual prostitutes, and health checks which often means punitive quarantine. The term legalization does not necessarily have to refer to the above sorts of regulations. In fact, in one commonly accepted definition of legalization, legal can simply mean that prostitution is not against the law.
From sociological perspective, the term legalization usually refers to a system of criminal regulation and government control of prostitutes, wherein certain prostitutes are given licenses which permit them to work in specific and usually limited ways. Although legalization can also imply a decriminalized, autonomous system of prostitution, in reality, in most “legalized” systems the police are relegated the job of prostitution control through criminal codes. Laws regulate prostitutes businesses and lives, prescribing health checks and registration of health status (enforced by police and, often corrupt, medical agencies), telling prostitutes where they may or may not reside, prescribing full time employment for their lovers, etc. Prostitute activists use the term legalization to refer to systems of state control, which defines the term by the realities of the current situation, rather than by the broad implications of the term itself.
Because of the range of definitions of legalization, it is difficult to use the term in a discussion of reform. When the general public concerned with civil rights, privacy, etc., call for “legalization,” they may not be aware implications of that term, or of the problems inherent in many legalized systems.
Prostitutes’ rights organizations (ie, COYOTE, National Task Force on Prostitution) use the term decriminalization to mean the removal of laws against prostitution. Decriminalization is usually used to refer to total decriminalization, that is, the repeal of laws against consensual adult sexual activity, in commercial and non-commercial contexts. (Prostitutes’ rights organizations such as US PROS, English Collective of Prostitutes prefer to refer to ‘the abolition of laws against prostitutes’). Prostitutes’ rights advocates call for decriminalization of all aspects of prostitution resulting from individual decision. Asserting the right to work as a prostitutes, many claim their right to freedom of choice of management. They claim that laws against pimping (living off the earnings) are often used against domestic partners and children, and these laws serve to to prevent prostitutes from organizing their businesses and working together for mutual protection. They call for the repeal of current laws that interfere with their rights of freedom of travel and freedom of association. Civil rights and human rights advocates from a variety of perspectives call for enforcement of laws against fraud, abuse, violence and coercion to protect prostitutes from abusive, exploitative partners and management.
The “regulation of prostitution” usually refers to the criminal regulation of prostitution, but prostitutes’ rights activists also refer to regulation in terms of both civil regulation and self-regulation. They call for prostitute regulation of prostitute businesses, and civil codes regulating prostitute businesses with regard to the conditions and rights of workers. Those who call for autonomy support solo and collective work arrangements, and prostitutes’ control of their own lives and businesses. The discussion of regulation is primitive and it is difficult to invoke concepts of self-regulation in a context that presumes police control over prostitutes.
The attitudes of prostitutes’ rights activists contrast with attitudes about prostitution by anti-prostitution or abolitionist organizations. Abolitionist movements define prostitution and other categories of sex work as inherently exploitative. Currently abolitionists define prostitution as violence, per se, emphasizing involvement in prostitution as a response to childhood sexual abuse. As a reaction to the exploitation fostered by imperialism and military occupations, international anti-prostitution activists oppose prostitution per say, as well as sex tourism and trafficking (international “pimping”). Historically, abolitionists have dedicated themselves to rescuing women from prostitution, and training women to find alternative careers or security in marriage. Abolitionist groups want to end the institution of prostitution, envisioning a world where no one sells sexual services for any reason. Organizations such as WHISPER (Women Hurt In Systems of Prostitution Engaged in Revolt) oppose the legitimization of prostitution. These organizations do not self- define as prostitutes’ rights organizations. They work to reduce or abolish the sex business, advocating against pornography, strip clubs, etc.
Obviously there is much work to be done as we create the framework for a broad discussion of prostitutes’ rights. Each of the linguistic approaches can be problematic: The term legalization is overbroad. The term decriminalization has not worked its way into a contemporary discussion and can elicit confusion and misinterpretation. Obviously, all the above terms will be evoked in thorough discussion of the issues. Consensus regarding definitions should be established early on. As the discourse develops, it is essential that terms be developed from the perspective of those who will be effected by the legislation.