Legalizing Prostitution: From Illicit Vice to Lawful Business (16 page)

Unlike high-consensus crimes such as murder and robbery, vice is distinguished by moral ambivalence: vice is considered deviant and pleasurable simultaneously, and even some of those who partake of the vice have mixed feelings about it.
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This moral ambivalence also means that vice law and public policy are fraught with controversy.

But not all vices are created equal. Some are more acceptable than others to a broader range of the population. In an analysis of drug policy, Simon Lenton lists the following conditions that increase the chances of decriminalization and legalization:

1. Support from a majority of the population

2. Survivability for politicians, that is, their support will not mean electoral suicide

3. Support from law enforcement officials

4. Support from consumers, who are theoretically the beneficiaries

5. An evidence basis for legal reform, for example, that the harms are greater under criminalization than under decriminalization or legalization

6. A policy sustainable under international treaties

7. A policy subject to regular review and evaluation
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Criminologist Jerome Skolnick identifies a somewhat different set of variables that help to explain the degree of acceptance of a particular vice and, by extension, the potential for decriminalization. If one or more of the following is present, the chances of toleration or legitimation increase:

1. It will provide revenue to the government (e.g., gambling casinos and lotteries).

2. It is engaged in by a large number of people (e.g., two-thirds of Americans participated in some form of gambling during the past year).
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3. The social status of participants is high; criminalization is easier to sustain if marginal individuals are involved (e.g., homeless heroin addicts).

4. Participants have otherwise traditional lifestyles, not being part of a deviant subculture.

5. Young people can be shielded from the vice.

6. Adults who wish to avoid the vice can be shielded from it.

7. The vice can be confined to the private sphere or at least relegated to places (e.g., casinos, brothels) that do not encroach on nonparticipants.

8. The vice does not create dependency or interfere with one’s ability to fulfill obligations (e.g., addictive drugs).

9. The vice is controllable by the authorities and will not proliferate to an unmanageable level.
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Items 5, 6, 7, and 9 suggest the corollary superiority of indoor, building-based activity over street-level activity. In other words, indoor vice is preferable to public vice inasmuch as it is invisible to the public and does not threaten public order. The 1972 National Commission on Marihuana and Drug Abuse advocated decriminalization of possession of marijuana only in indoor settings (public possession of under one ounce would be subject to summary forfeiture; public possession of more than one ounce or public use of marijuana would be punishable by a fine of $100),
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and most of the recent marijuana-decriminalization bills in the United States make a distinction between private (tolerated) and public (prohibited) use, just as they provide stiffer punishment for users who are underage than for adults.
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It is not necessary that a particular vice satisfy all of Lenton’s and Skolnick’s conditions in order for it to gain acceptance or legitimacy, but the more the merrier. Legal abortion, for instance, does not appreciably increase government revenue, but it appears to satisfy most of the other conditions.

What about prostitution? It can be organized in a way that yields revenue to the government, net of the cost of government regulation. Special business taxes or licensing fees can be imposed on establishments. Licensing is a central part of many legal systems; not only does it generate income for the state, but it provides the basis for periodically monitoring licensed premises and punishing violations. It can also give the authorities power to squeeze certain types of businesses out of existence. An alternative to privately owned but
state-regulated businesses is the state-owned brothel. In medieval Europe, for example, some brothels were owned and managed by village officials. Regulations offered some protection to the women, for example, rules against beatings, being kept against their will, and falling into debt to the brothel owner.
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Such state-owned brothels are a thing of the past but worth considering at least on an experimental basis because of the potential reduction of exploitation by third parties and the associated empowerment of workers.

Where prostitution is illegal, most of the sellers avoid paying taxes, or the proper amount of tax, on their proceeds. Decriminalization facilitates the paying of taxes by individual providers and business owners, although doing so is not guaranteed across the board. Some of those who are accustomed to paying no taxes will continue to evade them, at least in the immediate aftermath of legalization.

For the clients, prostitution is not associated with dependency or addiction, in the way gambling or drug use are for some consumers. Most clients are gainfully employed and have social ties to conventional institutions and thus meet the test of having traditional lifestyles apart from their paid sexual transactions. The same is true for a segment of the prostitute population, though those who work in down-market arenas (streets, low-tier brothels) are often socially isolated and detached from conventional lifestyles. Legalization may have at least some normalizing effect on their everyday lives, but the potential here is unknown.

Prohibition on youth involvement is a staple of legal vice regimes, including sex work. In addition, some states attempt to shield young people from the trade by confining it to indoor settings where underage entry is prohibited or by banning certain types of advertising. Such restrictions also safeguard adults from exposure, keeping it out of public view. German cities that have window prostitution take a rather unusual approach to shielding the public, by barricading the street that contains window units and posting signs stating, “Youth under 18 and Women Prohibited.”

Controllability is trickier. Prostitution is notoriously difficult for the authorities to manage. First, legalization might lead to an overall increase in the number of participants. The number of prostitutes is partly affected by demand, though it is possible that greater supply—especially under conditions of legality—might increase demand. Supply is capped by the social stigma that taints sex work: most people will continue to shun this kind of work because they disapprove of it. With regard to the demand side, it is quite likely that the number of customers will increase once criminal penalties are abolished, although there is a threshold here as well, related to the
continuing stigma of buying sex. It is also conceivable that some of those who currently buy sex where it is illegal will stop doing so when it is decriminalized if this is perceived as diminishing the desired thrill or risk involved—the “forbidden fruit” effect—but I doubt that this will reduce demand appreciably. In New Zealand, nationwide legalization in 2003 has not increased the number of prostitutes in the country.
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Documented increases in the number of sex workers and customers in other legal systems may or may not be traceable to legalization per se, since it is impossible to know if the amount of prostitution would have increased anyway,
without
legalization. In order to restrict industry expansion, some regimes impose caps on the number of sex businesses or on the number of workers, but this has the unintended effect of forcing excluded participants to operate illegally.

Second, will prostitutes comply with the regulations? This is an extremely important question. Insofar as legalization includes stipulations as to who can and cannot engage in sex work, those ineligible (e.g., persons underage, HIV-positive, or illegal immigrants) would be forced to operate illicitly in the shadows of the regulated system. In addition, every conceivable form of legalization would be rejected by at least some eligible prostitutes, who would see no benefits in abiding by the new restrictions (e.g., mandatory registration or health examinations) and would resent the infringement on their freedom. While some streetwalkers, for example, would accept a policy zoning street transactions into a locale away from residential areas provided that it is safe and unintimidating for prostitutes and customers alike (as evidenced in some European tolerance zones, mentioned in
chapter 3
), others would reject this arrangement for personal reasons. Street prostitution tolerance zones are shunned if they lack places of refuge and sustenance, such as restaurants, coffee shops, grocery stores, bars, parks, and cheap hotels—amenities desired by most streetwalkers.
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Moreover, while zoning seeks to concentrate street prostitution in a particular area, it does not necessarily remedy other problems associated with street work, such as violence and drug abuse.

One of the few academic attempts to outline a set of “best practices” is criminologist Roger Matthews’s proposal for a new British approach to prostitution. Matthews advocates the following:

• Reducing and then eliminating street prostitution

• Reducing youth involvement

• Decriminalizing soliciting

• Reducing demand

• Cracking down on pimps and other exploiters

• Intensifying sanctions against those who engage in violence or coercion against prostitutes

• Enhancing opportunities to exit prostitution

• Increasing the “monitoring and surveillance” of indoor prostitution
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Most of these goals are unobjectionable and consistent with what other analysts would endorse. But Matthews offers few concrete steps for achieving some of his goals, and the rationale for some of them is opaque. He does not explain why reducing demand—that is, customers—is a worthy goal but instead simply assumes that we should do so. Nor does he provide any concrete indication of what the monitoring and surveillance of indoor prostitution should consist of. His proposal is so vague as to be meaningless to authorities tasked with such oversight.

If Matthews’s policy package is deficient in key details and justifications, some of his proposals are nevertheless meritorious and provide a useful starting point for a more comprehensive and practical program, which I offer in the book’s conclusion. When considering potential benefits of legalization, much depends on exactly what is regulated. Having said that, we can sketch some expected or desirable general benefits:

• Participants are no longer illegal actors simply because they engage in paid sex transactions, thus reducing the costs to the criminal justice system.

• Providers face less risk of being exploited by unscrupulous third parties, and criminal sanctions can be redirected to those who abuse individual workers.

• Providers, who become more accessible, can be encouraged to follow safe-sex practices and have regular medical exams.

• Underage individuals can be more easily prevented from selling sex, at least in the regulated sector.

• Safety may increase, for all participants.

• Costs to consumers are likely to decline with legalization, though this may not be viewed as a benefit to providers, whose cost per unit transaction may decline.

• Legalization reduces doubts regarding the precise services or products consumers are paying for. This can reduce the risk of misunderstandings and “rip-offs.” Providers can advertise openly without fear of arrest, do not need to use euphemisms to conceal specific services and their prices, and no longer need to operate behind fronts such as salons, karaoke bars, spas, and the like. (Advertisements and signage should be sensitive to what the surrounding community will tolerate, however.)

• If a legal establishment is required to display a sticker indicating that it is a legal business, clients will know that they are buying sex lawfully. This is trickier with independent providers, who may not want to carry a card identifying them as a sex worker. But in a system in which independent sex work is allowed, the client can have a reasonable expectation that the provider is legal, unless it appears that the provider is underage or under duress. In those systems in which providers must be registered, they can be be required to show the registration card to the client.

• Nearby merchants may experience beneficial side effects from legal sex establishments—for example, increased numbers of patrons of bars, restaurants, and other businesses in the vicinity.
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One implication of the preceding discussion is that law reform should take into account the interests and preferences of multiple stakeholders. Some writers who discuss policy alternatives focus exclusively on the needs and desires of sex workers. Sex workers are absolutely central to the success or failure of any policy innovation, but it is also important that reforms take into account other parties as well, including local residents, the authorities, clients, and managers and owners of sex establishments.

This section shows how some legal regimes have addressed the generic challenges described in the preceding section and serves as a prelude to our in-depth examination of three European settings. How do these models differ? And which policies seem best?