Sex Offenses: Consensual

Prostitution differs greatly from the consensual sex crimes discussed thus far, in that criminal prohibitions are routinely enforced, and the crime engages substantial law enforcement resources. It is, therefore, a theoretical concern. However, there is no shortage of theory surrounding the criminal law response to prostitution; whether and how to respond to prostitution has generated enormous debate from many quarters.

In the United States, prostitution was not directly prohibited by the criminal law during most of the nineteenth century, but prostitution activities were prosecuted under public lewdness, vagrancy, or nuisance statutes that ordinarily led to fines without imprisonment. Toward the end of the nineteenth century, most states passed laws prohibiting prostitution. These laws applied only to the women who worked as prostitutes, and not to their customers, or johns.

Not until the second half of the twentieth century were laws extended to cover the activities of johns, and not every state today criminalizes the patron of a prostitute at all. A number of states criminalize the conduct of both the prostitute and the john, but provide for more severe penalties for the prostitute. With a few exceptions, these statutes survive court challenges. By the 1980s, the official law on the books had come closer to equal treatment of prostitute and john. But in practice, the enforcement still has been extremely lopsided, with the vast majority of arrests and prosecutions brought against prostitutes. Studies of some jurisdictions have shown that virtually all of the thousands of prostitution arrests made each year in a given city have been of women prostitutes, not of the johns who are their compatriots in crime (Kandel). In the 1990s, however, there were sporadic attempts in some jurisdictions to arrest johns. These efforts included novel and controversial penalties, such as the publication of pictures and names of johns for the purpose of shaming them and thereby deterring others, and the seizure of automobiles driven by johns when those cars were used in the commission of the crime.

At common law, acts of prostitution were not crimes themselves, but solicitation was; this is the classic expression of the Victorian compromise. A number of states today continue this approach: they have no criminal prohibition of the actual exchange of money for sex where all aspects of the transaction are conducted in private. Instead, the criminal law in those states addresses solicitation, pandering, living in a house of prostitution, engaging in prostitution as a business (a single incident of prostitution is not enough to gain a conviction under these provisions), procuring a prostitute for another, inducing a person into a life of prostitution, or profiting from the prostitution of another. The majority of states do criminalize the private exchange of sex for money, but provide for trivial penalties, reserving the more severe sanctions for the organizational crimes associated with pimping. Finally, though it is widely believed that prostitution is not a crime in Nevada, in fact the state of Nevada simply delegates prohibition and regulation of prostitution to county governments, a few of which permit highly regulated prostitution.

The arguments in favor of criminalizing prostitution are numerous. They include the suppression of other crimes and harms that are incidental to prostitution, including organized crime activities, drug trading, violence against prostitutes and among pimps, as well as violence or offense to nonparticipant passersby, and emotional harm to the spouses of johns. These are about third party harms in some cases, and in some cases about harms to participants that are not easy to prosecute independently. For example, it is extremely difficult to obtain a conviction for sexual assault against a prostitute, though in study after study prostitutes report a high rate of nonconsensual sexual violence against them by both pimps and johns.

Underlying some of the dispute over the practice of prostitution is a dispute over facts. Libertarians often portray prostitutes as savvy entrepreneurs who have decided to capitalize on their sexuality. The contrasting picture, however, is of prostitutes who begin the work at an average age of fourteen, well below the age of consent, who are subject to routine sexual violence by pimps and johns, and who often have drug dependencies (that are sometimes encouraged by pimps) that drive their desperate need for cash. All three of these factors—early entry into the work, regular violence, and drug dependency—put in question the quality of the consent that would form the basis of the libertarian argument.

It is important to note that most of the criminal law response to prostitution has nothing to do with the protection of prostitutes themselves from these conditions. The response stems instead from the bargain struck in the Victorian compromise: seedy sexuality can take place without interference but anything that brings with it harms to bystanders in the form of criminality, violence, or offense in the neighborhood will not be tolerated. Therefore, some argue that we have the worst possible system: one that does not protect prostitutes themselves from the difficult conditions in their lives, but instead contributes a new difficulty in the form of arrests and fines aimed at the prostitutes themselves and not at the customers who create the demand for their work. Proponents of decriminalization argue that it would reduce some of these harms, specifically those associated with the black market corruption of law enforcement or organized crime involvement. They argue that it is the illegality itself that provides the opportunity for exploitative and violent behavior on the part of pimps and johns. Though the argument has become popular, it has not led to any actual changes in the law, or at least not to any decriminalizations.

There is a significant difference between the concept of decriminalization and the concept of legalization. Decriminalization makes the practice free from legal punishment. Legalization gives the practice all the protections of civil law. These include the legal enforcement of contracts, the protections of labor laws such as occupational safety laws, antidiscrimination laws, and Social Security, workers' compensation, and unemployment laws. Few libertarian advocates for decriminalization go so far as to advocate legalization. Decriminalization would remove police harassment from the lives of prostitutes and johns. However, it would not necessarily improve the conditions of prostitutes in other ways, or not to the extent that legalization would. Decriminalization would still permit violence by pimps and johns, and prostitutes would still need pimps to enforce contracts with johns were they unable to rely on the court system to do so instead.

An objection raised to complete legalization is that it would legitimize fully commodified sex. The argument continues that where the sale of sex is completely legitimate, a change would occur in the conception of sex among those who do not buy and sell it, as that noncommercial exchange would occur with the knowledge that the acts have a specific market price and availability.