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Social Attribution And The Construction Of Prostitution As A Social Problem

Prostitution as a category of crime and social identity is located at the intersection of sexuality and economics. Georg Simmel linked the "essence of prostitution" to the "nature of money itself" (p. 414). A more contemporary study has characterized prostitution as

a business transaction understood as such by the parties involved and in the nature of a short-term contract . . . . [T]o be a prostitute, one has to treat the exchanging of sexual gratification for an established fee as a business deal, that is, without any pretence to affection, and continue to do this as a form of financial occupation . . . . In other words, it must be clearly demonstrated that there is a buyer and a seller, a commodity offered and a contracted price. (Perkins and Bennett, p. 4)

The field of economics and the study of human sexuality have both gone through sharp internal polemics and revisions since the 1970s. Social and criminal justice policy toward prostitution has trailed along somewhat uncertainly in their wake. Indeed, prostitution policy has reacted to these scholarly developments in piecemeal fashion at best, as it has undertaken—in the absence of any single generally accepted conceptualization of the social problem of prostitution—a variety of ad hoc measures to mitigate prostitution's perceived negative social effects.

Universalist accounts of prostitution have maintained that it has existed throughout human history—the "oldest profession" canard—in all human communities, and even among some animal species. It is difficult to imagine that a historian writing after 1980 would undertake a project so grandiose and allencompassing that it could be entitled The History of Prostitution (Bullough). Earlier scholars' claims that, for example, ancient Babylonian religious ritual sexual practices or the great variety of short term marital or quasi-marital relations (Islamic law temporary marriage, European morganatic marriage, East African malaya relationships) constitute prostitution seem now to reveal more about the writers' theoretical commitments than about the social institutions in question (see Bullough, pp. 17–30; Richards, p. 88; and for a critique Pateman, pp. 195–196). Instead, since the 1970s, a great many empirical studies of sexual exchange and of human sexuality in general have exhaustively demonstrated the historical, geographic, and ethno-cultural diversity of the forms of human sexual interaction, identity, and relations (e.g., Davis).

Prostitution as a crime of sexuality and commerce requires that an economy of market exchange exist within a particular social order and that certain forms of sexual interaction be normatively excluded from economic exchange by the force of criminal sanction. Following Ferdinand Tonnies's classic sociological analysis that posited an ideal-type distinction between Gemeinschaft, a community ordered by kinship and customary obligation, and Gesellschaft, a society organized by free economic exchange, we see that a crime of prostitution could logically exist in neither of them. In a community of reciprocal gift-obligation, nothing could be put on the market for sale to the highest bidder—sexual interaction perhaps least of all. Similarly, in a society of pure economic exchange, everything is understood as available for a price, so that the selling of sexual services could hardly constitute a crime. It is only in a social order where some things are expected to be allocated by buying and selling in a market and other things are not to be sold at all that the selling of sexual interaction can be understood as a criminal offense.

This conceptual problem of how to distinguish between categories of licit and illicit sexual socioeconomic connection is an old issue in feminist thought that has attracted renewed attention since the 1970s. Two hundred years ago, Mary Wollstonecraft described a wife's status as "legal prostitution" (p. 247). To Emma Goldman in the early twentieth century, "it is simply a question of degree whether [a woman] sells herself to one man, in or out of marriage, or to many men" (p. 179). And for Simone de Beauvoir writing at mid-century, a wife is "hired for life by one man; the prostitute has several clients who pay her by the piece" (p. 619).

Since the 1970s many studies have focused closely on the gender politics of prostitution law and its enforcement. Although the Model Penal Code endorses gender neutrality by drawing no distinction between males and females accused of prostitution (section 207.12(1)), attention to prostitution as a two-sided economic transaction highlights a sharp gender asymmetry in the role of the consumer of sexual services. Markets in sexual services performed by men as well as women and directed toward male consumers are very widely attested. Yet, though it is easy enough to imagine a prostitution market aimed at female consumers, the virtual absence of reports of established markets selling sexual services to women is a robust sociological fact that has compelled a reconsideration of the gender effects of prostitution markets (Pateman).

A heightened concern over the public health aspects of prostitution followed the appearance of AIDS in the 1980s. This concern recalls the nineteenth-century furor over prostitution as path for disease transmission that achieved legal expression in the passage of Britain's Contagious Diseases Acts of the 1860s. In Carole Pateman's view, the compulsory public health registration of suspected prostitutes required by these acts was the precipitating factor for prostitution in our contemporary sense. This effect of compulsory registration was to "professionalize" a more or less permanent subclass of women as "common prostitutes" because of the difficulty of removing one's name once it had been added to the registry list and of subsequently finding other employment. Since the 1980s, public health concerns about AIDS and other sexually transmitted diseases have contributed to the expansion of risk management and transaction cost approaches to prostitution as a social problem. The case law of the 1980s and 1990s in many jurisdictions reflects a "prostitutephobia" (Davis, p. 114) in numerous instances of lengthened prison sentences for prostitution justified as a form of quarantine for public health reasons.

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Law Library - American Law and Legal InformationCrime and Criminal LawProstitution - Social Attribution And The Construction Of Prostitution As A Social Problem, Transaction-cost Approaches To Prostitution: From Repression To Regulation