Legalizing Prostitution: From Illicit Vice to Lawful Business (10 page)

Decriminalization and legalization, to which we now turn, are alternatives to criminalization.

Legalization and decriminalization are examined in depth in
chapter 4
and in selected nations in later chapters. In this chapter, I restrict the discussion of these policies to how they have been viewed in the United States, and I describe a third alternative: a two-track policy.

There are three types of decriminalization.
Full decriminalization
removes all criminal penalties and leaves prostitution unregulated, albeit subject to conventional laws against nuisances, sex in public, disorderly conduct, or coercion. Under full decriminalization, prostitution could exist in any locale, so long as the parties do not disturb the peace or violate other ordinances.
Partial decriminalization
would reduce but not eliminate penalties—the charge may be reduced from a felony to a misdemeanor or violation, and the penalty might be a fine instead of incarceration. A third option is
de facto decriminalization
, which means the offense remains in the penal code, but the law is not enforced. Decriminalization may or may not be a precursor to legalization (government regulation).

Proposals for full decriminalization run up against a wall of opposition. A 1983 poll found that only 7 percent of Americans thought that there should be “no laws against prostitution,” and in 1990, just 22 percent felt that prostitution should be “left to the individual,” while a greater number thought that it should either be “regulated by law” (31 percent) or “forbidden by law”
(46 percent).
¹²
American policymakers are almost universally opposed to the idea, making it a nonstarter in any serious discussion of policy alternatives. Advocates sometimes manage to get it placed on the public agenda, however. In 1994, a task force in San Francisco explored alternatives to existing prostitution policy. After months of meetings, a majority of the members voted to recommend decriminalization, but the city’s Board of Supervisors rejected the idea.
¹³

In November 2008, San Francisco residents voted on a ballot measure that would have de facto decriminalized prostitution in the city. The measure stipulated that the police would discontinue enforcing the law against prostitution. The measure failed but was endorsed by a sizeable minority of voters: 42 percent. Four years earlier, Berkeley, California, voters were presented with a similar proposal, and 36 percent supported it.
¹⁴
As this chapter shows, the San Francisco and Berkeley cases are exceptional in contemporary America, where liberalization is rarely voted on by the public or even discussed by political leaders. As a task force in Buffalo, New York, reasoned, “Since it is unlikely that city or state officials could ever be convinced to decriminalize or legalize prostitution in Buffalo, there is nothing to be gained by debating the merits of either.”
¹⁵
Decriminalization is thus the untouchable third rail of prostitution policy in the United States.

Legalization
couples decriminalization with some kind of official regulation. In other words, removal of criminal penalties is linked to other controls—such as vetting and licensing business owners, registering workers, zoning street prostitution into a designated area, mandating medical exams, instituting special business fees (a “sin tax”), or periodically inspecting legal establishments. Because legalization involves official regulation, citizens are more inclined to support it than laissez-faire decriminalization. Five polls in
table 3.1
show support for legalization ranging between one-quarter to nearly half of Americans. None of these polls specifies the
kind
of regulation, however, so we lack information on the specific restrictions favored by the public. Still, it is noteworthy that such a sizeable minority favors legalization in principle.

In the United States, only Nevada has state-regulated prostitution. Nevada’s 30 legal brothels are relegated to rural areas and prohibited in Las Vegas and Reno, due largely to opposition from the gaming industry. A slight majority of the Nevada population favors retaining legal brothels (52 percent, in
table 3.1
), though the system is more popular in rural counties that already have legal brothels. But this rural-only model is remote, both geographically and cognitively, from urban areas. Illegal prostitution flourishes in Las Vegas
and Reno, despite the existence of legal brothels in adjacent counties. Only a minority of Nevadans want to see legalization extended to Las Vegas: 35 percent favor the “legalization of prostitution in a limited area of downtown Las Vegas,” while 59 percent oppose the idea (
table 3.1
).
¹⁶

TABLE 3.1
Attitudes toward Prostitution Policies, United States

Sources:

1. Louis Harris poll, 1978, N = 1,513. “Engaging in prostitution” should be “regulated by law.”

2. Merit Audits and Surveys, Merit Report, October 1983, N = 1,200. Prostitution should be “legal under certain restrictions.”

3. Louis Harris poll, 1990, N = 2,254. “Engaging in prostitution” should be “regulated by law.”

4. Gallup poll, 1991, N = 1,216. To “help reduce the spread of AIDS, prostitution should be made legal and regulated by the government.”

5. Gallup poll, 1996, N = 1,019. “Prostitution involving adults 18 years of age and older should be legal.” Question wording does not stipulate restrictions or regulation, unlike the earlier polls, which might explain the lower approval level compared to all but one of the earlier polls.

6. General Social Survey, 1996, N = 1,444. “How much do you agree or disagree with the following statement? There is nothing inherently wrong with prostitution, so long as the health risks can be minimized. If consenting adults agree to exchange money for sex, that is their business.” The figure combines the responses “agree strongly” and “agree somewhat.”

7. November, 2004, ballot measure (Measure Q), instructing Berkeley police to treat enforcement of prostitution law as the “lowest priority.”

8. November, 2008, ballot measure (Measure K), instructing San Francisco police to discontinue all prostitution arrests and defunding the city’s john school.

9. Nevada poll, N=1,213, conducted November 1988 by the Center for Survey Research at the University of Nevada, Las Vegas. 22% thought that prostitution “hurts the state’s tourism industry.”

10. Poll of Nevada residents, N=600, Law Vegas Review-Journal, September 17, 2002. Poll conducted by Research 2000. 31% were opposed to legal brothels and 17% were undecided or had no opinion.

11. Poll of Nevada residents, N=601, Las Vegas Review-Journal, October 30, 2003. “Do you support the legalization of prostitution in a limited area of downtown Las Vegas?” Poll conducted by Magellan Research. 59% were opposed to the idea and 6% had no opinion.

Since Nevada legalized brothels in 1971, no other state has seriously considered legalization. Legislators fear being branded as “condoning” prostitution and see no political advantages in any kind of liberalization. On those rare occasions when the idea has been floated, it has had a short life. The San Francisco and Berkeley decriminalization ballot measures, mentioned earlier, were rejected by a majority of voters. Still, it is noteworthy that 42 percent of San Franciscans voted for full decriminalization in 2008, suggesting that this kind of policy shift remains a distinct possibility in the future, at least in this city.

How is legal reform viewed by sex workers themselves? National data in the United States are lacking on this question, but a survey of 247 (mostly street) prostitutes working in San Francisco found that 71 percent supported decriminalization (“get rid of laws that make sex work illegal”), and 79 percent said that sex workers “should determine their own working conditions without being taxed or regulated by government,” whereas 83 percent agreed that sex workers should be “required to undergo health screenings to be able to do sex work” even as they roundly rejected other types of regulation.
¹⁷
The figures thus show support for general decriminalization plus one kind of regulation. What about clients’ views? A survey of 1,342 arrested clients reported that 74 percent of them thought that prostitution should be legalized.
¹⁸
Neither survey was based on a random sample, but they are suggestive of high levels of support for liberalizing the law among both providers and their clients.

If neither formal decriminalization nor legalization is a viable policy in the United States at present, is there any other alternative to blanket criminalization? Since prostitution manifests itself in fundamentally different ways on the street and in indoor venues, it seems sensible to treat the two differently. In fact, most of the nations that have decriminalized prostitution have done so only for indoor venues, not street prostitution. As one assessment concluded, “Street-based sex work is problematic everywhere. … Street sex workers comprise the most vulnerable and traumatized section of the sex industry.” The authors advocated reducing the street sector by “ensuring an adequate supply of indoor alternatives.”
¹⁹

More than 50 years ago, the landmark Wolfenden Committee in Britain produced a report advocating a dualistic approach to prostitution. Street prostitution was defined as a public nuisance and as offensive to the public. As the committee put it, legal penalties should apply to “the manner in which the activities of prostitutes and those associated with them offend against public order and decency, expose ordinary citizens to what is offensive and injurious, or involve the exploitation of others.”
²⁰
Because street prostitution was deemed an offense against public order and decency, the Wolfenden Committee recommended harsher penalties for prostitutes who operate outdoors (replacing the existing petty fines) and amplified penalties for repeat offenders. Indoor prostitution was a different matter altogether: “It is not, in our view, the function of the law to intervene in the private lives of citizens.”
²¹
The committee argued that prostitution should be tolerated in workers’ private premises but stopped short of advocating licensed brothels because this might encourage men to avail themselves of services if they became so readily available. Thus, only the most hidden and small-scale indoor prostitution was to be allowed. The committee recognized that such a policy could lead to an increase in indoor prostitution but considered this “less injurious than the presence of prostitutes in the streets.”
²²

These recommendations were incorporated into legislation two years after publication of the Wolfenden report. The 1959 Street Offenses Act provided enhanced penalties for street soliciting (fines, incarceration) and left indoor prostitution untouched (except for retaining the prohibition on persons living off the earnings of a sex worker). This dualistic policy remained in effect for decades, along with some amendments on the street prostitution side: incarceration was abolished in 1983 for those convicted of solicitation on the streets, relying on fines instead, and a new offense of persistent “kerb crawling” was created in 1985, allowing for the arrest of clients who repeatedly cruise for prostitutes on the streets. The Policing and Crime Act of 2009 takes client culpability a step further, by making it illegal for someone to pay for sex with a person who has been subjected by a third party to force, threats, or deception—regardless of whether the client is aware of the coercion.
²³

The policy framework that I present below is inspired by the Wolfenden report while departing from it in some respects. This
two-track policy
would (1) target resources toward the reduction of street prostitution and (2) relax enforcement against indoor actors who are operating consensually.
²⁴
I am not advocating this policy as a universal solution worldwide, but I do think it has promise in the United States—given that blanket criminalization is problematic, while the more radical proposals of de jure decriminalization or legalization are extremely unlikely in the foreseeable future.

Some jurisdictions in the United States, Britain, and many other nations have adopted an informal policy of de facto decriminalization of indoor prostitution—essentially ignoring escorts, brothels, and massage parlors unless a complaint is made.
²⁵
Elsewhere, however, police devote substantial time and resources to this side of the sex trade, accounting for as much as half the prostitution arrests.
²⁶
Law enforcement policies can differ dramatically even between adjacent areas. In Riverside County in California, police have regularly arrested indoor sex workers and their clients, whereas this is not the practice next door in San Bernardino County.
²⁷