Legalizing Prostitution: From Illicit Vice to Lawful Business (37 page)

Philosopher Christine Overall has argued, “It is imaginable that prostitution could always be practiced, as it occasionally is even now, in circumstances
of relative safety, security, freedom, hygiene, and personal control.”
³
I want to emphasize the word “imaginable” in Overall’s remark. This book can be read as a first step in imagining an alternative to the conventional wisdom—one in which sex work is characterized by “relative safety, security, freedom, hygiene, and personal control.” Most existing legal prostitution systems have registered a degree of success in achieving one or more of these goals for at least some categories of sex workers, although none has fully realized all of these ideals.

In every legal prostitution system that I know of, the state has focused almost exclusively on women who sell sex. The regulations are applied primarily to women, with male sex workers and their managers usually left out of the monitoring system. It can be said that male prostitutes therefore benefit from decriminalization in these nations but are left largely untouched by the regulations and controls. This gender bias mirrors larger debates about prostitution policies, which pivot on the relationship between female providers and male clients. Ignoring male sex workers, critics argue that legalization ratifies and normalizes men’s sexual use of women by giving prostitution the state’s stamp of approval. So, whatever the practical benefits of legalization, some people will reject it because of what it seems to symbolize—men’s access to women’s bodies or the very notion that men have a legal “right” to buy sex from women who otherwise would be unavailable to them.
⁴
The existence of prostitution in general and legal prostitution in particular, critics argue, commodifies women and reinforces the broader cultural objectification of them.

This larger context is important. We have witnessed a steadily growing sexualization of Western culture over the past two decades, manifested in increasingly permissive sexual attitudes, emergence of new eroticisms, growth of the sex-toy market, and proliferation of sexual themes in music, movies, television shows, and commercial advertisements.
⁵
Whatever one thinks of these trends, it is clear that they are not driven solely by men; women are actively involved as well.
⁶
Insofar as this ubiquitous cultural sexualization serves to reinforce the public’s interest in sex, whether unpaid or paid, it can be argued that these trends do not augur well for abolishing sex work. If the latter is true, prostitution will continue to exist, whether legal or not—so the question becomes one of minimizing harms and empowering
workers to the maximum extent. Criminalization satisfies neither of these goals, as many feminists recognize: America’s premier women’s rights organization, the National Organization for Women (NOW), passed a decriminalization resolution several decades ago. The resolution declares that NOW “opposes continued prohibitive laws regarding prostitution, believing them to be punitive” and “therefore favors removal of all laws relating to the act of prostitution.”
⁷
I now turn to a consideration of some practical aspects of legal prostitution systems.

The question of whether it is possible to identify gold standards applicable to all systems of legal prostitution has rarely been raised. Ericsson’s “sound prostitution” ideal has the following ingredients: it is legal, voluntary, and restricted to adults; grants sex workers the same rights as other workers; and is destigmatized and recognized as fulfilling “a socially valuable function” by “decreasing the amount of sexual misery in society.”
⁸
These are general principles, which can be distinguished from the practical challenges involved in implementing them.

Each nation that has legalized prostitution has implemented a model that differs in at least some ways from that of other nations. There has been some cross-fertilization from one setting to another, but much of the experimentation has occurred in a national vacuum. This leaves open the questions of whether we can identify a set of generic “best practices” and what the proper criteria are for evaluating a regulatory system. Some writers who discuss prostitution policies focus exclusively on the desires of sex workers. Sex workers are absolutely central to the success or failure of any new regime, but it is also important that reforms take into account (but not be determined by) the interests and preferences of
all
relevant parties—local residents, owners of sex businesses, sex workers, and state officials responsible for public order, health, and safety.

Drawing from the vice-legalization models presented in
chapter 4
as well as my analysis of existing legal systems, I offer the following set of standards. These standards may not be fully comprehensive, but they do address the central pillars: visibility, eligibility, health, safety, and rights. The starting point is that
consensual adult prostitution be officially recognized as work and that participants be accorded the rights and protections available to those involved in other occupations
.

Visibility

• Minimize public visibility and encroachment on nonparticipants. Those who favor unfettered decriminalization will argue that minimizing visibility runs counter to the larger goal of normalization, but I argue that keeping prostitution as discreet as possible is a superior goal in light of the risk of backlash if the sex sector is too obtrusive. Keeping it largely out of sight will reduce the chances that residents and others will mobilize to recriminalize it. Another advantage is that workers’ exposure to public view and to demeaning comments from people is reduced. I should note that this point best applies to newly legal systems in places where there is no preexisting identifiable red-light area. It is less relevant to a setting where prostitution has long existed in a particular geographical area (prior to formal legalization), such as in Amsterdam’s centrally located red-light district, where commercial sex was thoroughly entrenched in the local culture and tourist economy prior to formal legalization in 2000.

• Prohibit sexually oriented businesses from locating near schools and playgrounds.

• An alternative to highly visible window prostitution is the enclosed building containing individual rooms—such as the hotel-brothels in Germany or the interior window rooms or courtyards in some places in the Netherlands. While the buildings themselves are obvious centers of sexual commerce, the workers and clients are not visible from the street.

• Street prostitution should be discouraged, in accordance with the minimumvisibility maxim and the problems associated with street prostitution set forth in
chapter 3
. Most states that have decriminalized prostitution ban the street variety because of the problems associated with it. The street sector is difficult to manage in a way that reduces harms and, according to some analysts, is inherently problematic. Zoning street work into a particular area rarely remedies problems even when there are amenities and safeguards in place, as in the Dutch
Tippelzones
, most of which have now been closed. Street prostitution in New Zealand and New South Wales, Australia, is allowed subject to public-nuisance laws, but the street market continues to be contentious in both places, and the workers continue to face more risks than do their indoor counterparts.

• In line with the preference for invisibility, there should be no restriction on one or two sex workers operating out of their own residences, subject only to existing laws regarding public nuisance and a prohibition on signage on the premises. More than two providers at any private location in a residential community increases the number of clients and, hence, the chances of public
annoyance. The idea of decriminalizing sole operators has a long lineage, being one of the proposals of the landmark Wolfenden Committee in Britain 50 years ago; today, some nations allow sole providers to operate freely.

• Advertising and signage should be sensitive to what the local community will tolerate. But to reduce potential offensiveness, advertising on billboards should be prohibited, and signage on sex businesses should be discreet. In some places, existing obscenity laws may be sufficient to restrict improper marketing. Advertising on the Internet should be permitted, so long as this does not take the form of unwelcome pop-up ads and instead requires consumers to search for services.

Eligibility

• Prohibit minors from participating in the sex trade. This is a common feature of legal prostitution systems and should be a universal rule. In most places, the minimum age is set at 18.

• Exclude minors from premises where sex is sold (e.g., adolescents seeking titillation, children of brothel workers).

• Instead of punishing underage prostitutes, the government should create and fund robust programs to facilitate their exit from prostitution, enlisting a network of service providers to promote rehabilitation and reintegration. The same resources should be available to adult sex workers who wish to leave the trade.

• Sex workers should not be forced to register or be licensed. This has been problematic almost everywhere it has been tried. As NOW warned decades ago, mandatory registration “will result in ongoing persecution of women who will not register because they do not wish publicly to proclaim themselves prostitutes.”
⁹
Additional concerns include how the personal information would be used, how secure it would be, who would have access to it, and whether the records would be expunged after one stops selling sex. In short, registration has much stigmatizing potential and will be resisted by a large number of workers, who will have no option but to operate illegally and hence more vulnerably.

• Businesses should be licensed, just as any other business is. This applies to brothels, massage parlors, and escort agencies. The license should be visibly displayed on the premises, so that clients know the business is legal.

• Conduct thorough background checks on the operators of sex establishments to determine whether they have been convicted of crimes involving drugs, finances, coercion, or violence. A conviction for such crimes should be grounds for denial of a license. Prostitution-related offenses that occurred prior to legalization should not be held against actors operating under the
new system (e.g., running an illegal brothel in the past should be irrelevant). Unlike the current practice in the Netherlands, the burden of proof should not be placed on the applicants/operators, nor should they be rejected simply on the basis of suspicion of illegal activity. The authorities must prove that an operator has committed a crime.

• Conduct periodic, unannounced site visits to sex businesses, to ensure that the business is complying with the rules. The police, public health board, and building-code agency should conduct such visits in a routine and professional manner; they should not take the form of massive paramilitary raids, as occurs in some cities in Germany.

• If a licensing board exists, its role should be limited to receiving applications, conducting background checks on applicants, and reviewing another agency’s site visits to licensed premises. The criteria for granting an application should be concrete—not subject to vague references about “the reputation” of an applicant, as in Queensland, Australia.
¹⁰
The licensing authority should have no policy role, as it does in Queensland, where by law it is required to advise the Minister of Justice on various matters, including ways to reduce the number of sex workers in the state. The latter function would seem to lessen the board’s inclination to grant licenses, which helps to explain why so few have been granted in Queensland.

• A two-tiered structure of legal and illegal sectors is common in legal prostitution systems, but the size of each sector is influenced by the kinds of regulations adopted. The less onerous and costly the regulations, the smaller the size of the illegal sector (the latter is virtually nonexistent in New Zealand).
¹¹
When the regulations are extensive, expensive, stigmatizing, and perceived as arbitrary or discriminatory compared to other businesses, this amplifies the temptation to opt out and operate illegally. The costs of a license and of complying with the regulations should not be such as to force operators out of the legal market, as in Queensland. The costs should be comparable to those of other service agencies: there should be no special, added “sin tax.” At the same time, an overly minimalist system can be a problem. Recall the German government’s judgment that the 2002 decriminalization law had “only to a limited degree” achieved its stated goals and that “a more broad-based approach to regulating prostitution is required.”
¹²
Although crimes related to prostitution have declined since 2002, the German law does not require owners to provide good working conditions (such as hygiene and safety) in their establishments. A laissezfaire system can result in insufficient safeguards and controls, disempowering sex workers.

Health

• Encourage safe-sex practices, including condom usage. Although difficult to enforce, safe-sex practices serve the interests of all parties involved as well as public health generally. Health officials should conduct safe-sex outreach education with sex workers, clients, and managers, as they do in many existing legal prostitution systems.

• Regular health examinations should be encouraged but not mandated and should be offered free of charge to sex workers (as is the practice today in several legal prostitution systems). Compulsory testing for sexually transmitted infections stigmatizes sex workers, tests are not always accurate, and testing clean on a certain day may give the false impression that a person is sexually healthy afterward. Still, workers (and customers) should be encouraged to be tested periodically and to routinely practice safe sex.