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Regimes Of Prohibition, Criminalization, And Regulation

The 1980s and 1990s saw different faces of prostitution presented in American media. The 1980s case of Sydney Biddle Barrows, the "Mayflower Madam," and the 1990s case of Heidi Fleiss, the "Hollywood Madam," brought public scrutiny, even celebrity, to the world of elite call girls who earn thousands, even tens of thousands, of dollars per day for their services. Over the same period, the expansion of crack cocaine consumption in poor urban neighborhoods contributed to the appearance of the "crack whore." The "crack whore" has become an urban American social type, a persona that is at once a depiction of the most severely drug-addicted, impoverished street prostitutes as well as a rhetorical figure summoned up in policy debates over "welfare reform" and the "war on drugs." Socioeconomic studies of the lives and livelihoods of such drug-addicted prostitutes reveal that their income is often less than the federal minimum wage (Maher and Daly).

Academic, political, and criminal justice policy debates frequently hinge on whether one takes the "entrepreneurial call girl" or the "crack whore" as the paradigm case of prostitution, that is, whether the underlying "cause" of prostitution is free individual choice or socioeconomic and psychopharmacological compulsion. Arrest statistics showing that the vast majority of those charged with prostitution offenses are low-income urban ethnic-minority women are commonly cited to support the latter position. Yet, empirically, it is difficult or impossible to falsify the counterclaim that there exist large numbers of prostitutes who go about their business providing services and contributing to the economy in low visibility, informal market sectors and who are rarely or never arrested. Ultimately, there remains a lack of conclusive empirical findings and criminal justice policy is often mired in the politics of folk moralizing embodied in the warring media stereotypes of glamorous call girl versus pitiable crack whore. As a result, most American jurisdictions retain criminal statutes strictly prohibiting prostitution with little or no change from a century ago.

The legal prohibition in force in all U.S. jurisdictions except Nevada's rural counties is something of an anomaly in the global context. In most of Western Europe, India, Southeast Asia, Canada, Australia, the Pacific, and much of Latin America the policy regimes governing prostitution tend not to criminalize sexual commerce itself (which is usually not fully legal, but rather "decriminalized"). Instead, these countries generally criminalize prostitution-related activities such as solicitation, advertising, living off another person's earnings from sexual commerce, and recruiting and transporting persons to engage in prostitution (in the United States, most of these activities are also criminally sanctioned in addition to prostitution per se). The criminalization of activities associated with prostitution shades subtly into other regimes that are intended to regulate the conduct of prostitution while at least implicitly tolerating it (see Davis).

In Western Europe and certain other regions such decriminalization and regulatory approaches have led to a dual market in prostitution. Most European Union residents can engage in prostitution without criminal sanction, yet at the same time there also exists a widespread illegal secondary prostitution market made up of tens of thousands of migrants from Eastern Europe, Asia, and Latin America. These migrants practice prostitution in an underground economy, for lower earnings and in lesser conditions, fearing arrest, deportation, and coercive violence from their employers.

In virtually no country has prostitution been entirely accepted as a legitimate profession with the full social rights, worker protection, pensions, and other benefits accorded to other laborers and business enterprises. Whether legally prohibited, decriminalized, or regulated, wherever prostitution is practiced it remains a liminal social space subject to regimes of social control. Increasingly, no matter whether prostitution per se is legal or not, criminal justice and other social control strategies are directed toward minimizing the negative externalities (undesirable effects upon third parties or on society in general) that result from prostitution transactions.

A growing tendency is to make use of strategies for spatially segregating prostitution and activities associated with it in order to manage or minimize perceived externalities. This echoes the long-time practice in many cities where overt prostitution is de facto shunted into specific enclaves, often called "red light districts." These have usually been "low-rent" neighborhoods, that is, low-valued land-use urban zones, in or near ethnic minority or migrants' residential areas. It is illustrative of the spatial logic of minimizing the social costs of prostitution that the only place where it is legally tolerated in the United States are certain rural counties of Nevada—areas with very low population densities whose economic development alternatives include military weapons testing sites and toxic waste dumps.

In nearly all other American jurisdictions where prostitution is prohibited, it exists nonetheless and is in effect regulated through various spatially differentiated control strategies. Dallas, Texas, is an example of what has been called the "Control Model" (Reynolds). Here, police pressure is exerted to keep prostitution all but invisible in Dallas, except for some poorer neighborhoods. A certain amount of hotel and call girl/boy prostitution is tolerated as long as it remains confined to the convention trade and the more highly visible streetwalking is confined to poorer minority communities in the region.

San Francisco, a city that prides itself on its cosmopolitan tolerance, has been a long-time example of the "laissez-faire model" of prostitution regulation (Reynolds). One might describe this as a regime where nothing is legal but everything is permitted. Historically, overt street prostitution has flourished in the Tenderloin district and certain other lower-income neighborhoods. It is periodically suppressed by police pressure, just enough to minimize unsightliness that might offend the tourist trade. Much like Western European regulatory policies, San Francisco police strategy has often been to prosecute incidents of theft and violence associated with street prostitution but not to pursue the sexual offenses themselves. Call services and other less visible forms of prostitution are only rarely targeted by vigorous police enforcement.

In the 1970s, the city of Boston decided to use zoning law to localize de jure the city's "adult businesses" within a single neighborhood called the "Combat Zone." Although prostitution was not legalized, it was to a large extent effectively enclosed along with adult cinemas, pornography shops, and massage parlors. This extremely influential strategy has been called the "zoning model" (Reynolds). It sets up something rather like a sexual version of the "free trade zones" that exist in seaports and border towns, exempted from ordinary tariffs and regulations. Such spatial concentration of sex-oriented business may in fact lead to greater efficiency for sexual commerce because of lower search and transaction costs. However, the zoning model's greatest influence has been as a strategy for localizing and managing the risks and externalities associated with prostitution and other sexual commerce.

In the 1990s, other cities (notably Portland, Oregon) have employed zoning in a different fashion. Rather than quarantining sexual commerce by zoning it into a specific urban area like Boston's Combat Zone, now zoning is used to exclude prostitutes by establishing "prostitution-free zones." Drawing upon new urban strategies such as business improvement districts and area-specific gang-abatement injunctions, people who have been identified as known prostitutes are legally banned from whole sections of the city. The "cleansing" of New York City's Times Square in the 1990s is another example of such exclusionary strategies.

These adaptations of zoning law for the suppression, displacement, and spatial regulation of vice are part of a broader policy shift from strictly criminal repression to a flexible mix of criminal and civil sanctions in the crafting of new regulatory regimes. Although no jurisdiction has maintained customer-arrest levels equal to the arrest of prostitutes, there has been a new attention to this disparity. Some cities, notably San Francisco and Portland, have established programs modeled on so-called traffic schools for automobile driving infractions. Although these "therapeutic" programs are in principle available to prostitutes as well as to their customers, they are commonly referred to as "john schools" and have reportedly been little used by arrested prostitutes (Meier and Geis, pp. 52–53).

Additional topics

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