Criminalization of Prostitution
Prostitution is an old profession, dating back to even ancient Roman times when it was commonplace for the wealthy to pay for sex with men or women. Even through much of modern history, it remained legal. It was not until the end of World War II that prostitution was criminalized and certainly not for the reasons many would assume. The criminalization of prostitution began with the Nazi party in Germany.
Part of the ideology of the Nazis that were brought during the war was perfection. They frequently took up strong stances against immorality and sought to eradicate those that would defy those standards (Roos, 2002). However, Nazis faltered in one strong regard: prostitution. They not only accepted it as a practice but actively engaged in it throughout the war, going so far as to have policies and regulations governing the practice. The underlying principle of these prostitution policies was to eradicate homosexual behavior and establish the sexual needs of men, essentially using one behavior to snuff out another (Roos, 2002). These policies led to Nazis seizing control of many brothels as their invasions continued and forcing women into roles as sex workers.
Other nations were so eager to demonize the Nazis in any way possible that they seized on this fault within the group. Even though prostitution in other countries was far different than the regulated versions within Nazi Germany, the rest of the world looked upon these practices as if they were the standard everywhere and needed to be stopped. Nazis taking prostitution to an extreme caused a dramatic shift in social acceptance of prostitution and bans started landing across the board. Because of the Nazis, prostitution as we knew it would come to an end and be relabeled as deviant behavior.
The argument of “because the Nazis did it” does not hold much water as time moves forward, for the obvious reason that is not a valid argument against prostitution by any means. This has forced opponents of prostitution to fabricate new arguments to maintain its criminal status. Some have maintained the simplicity of prostitution being immoral and simply needing to remain illegal as it has no place in our society. Some have pointed at sexism and taking advantage of women for men’s needs.
Perhaps the most outlandish attack against prostitution is the attempt at reclassifying it as something completely different: sex trafficking. This tactic from abolitionists attempted to remove the legal distinction between forced prostitution and consensual prostitution, making all forms of prostitution fall under the former’s definition (Bazelson, 2016). They even went so far as to try and convince President Bill Clinton to make these changes in both an international crime treaty and a federal bill targeting trafficking (Bazelson, 2016), which would have implemented stiff penalties and incarceration for anyone paying for sex. The ploy ultimately failed to gain any traction.
Despite abolitionists providing little argument as to why all prostitution should be reclassified as sex trafficking, opponents of the move provided detailed arguments against it. They pointed to examples of supposed sex trafficking busts where the women involved were treated poorly by the federal government, facing abuse and coerced sexual acts from police as well as deportation back to their origin countries (Bazelson, 2016). While these workers may have been trafficked into the country, they were not always unwilling and sometimes did whatever it took to get away from poor situations in their home countries.
Feminists have also argued back and forth on the points of sexism in the prostitution business. Some argue that sex work and violence is one of the greatest tools for oppression towards women that needs to be quelled (Bazelson, 2016). Others argued that sex workers were not victims at all but are strong women that have found a way around the usual patriarchy (Bazelson, 2016). Essentially, women through sex work find a way to take advantage of men rather than men taking advantage of women.
The narrative of prostitution being sexist and demeaning to women is counter to historical accounts of prostitution. Back in ancient Rome, both men and women served as prostitutes and engaged in sexual activities with them. However, women in prostitution tell quite an inspirational tale of how they affected the development of the Midwest. When the United States first started expanding westward, many of the towns along the way were nothing more than work camps filled with desperate men willing to pay to see a pair of panties (Conover, 2016). Women were easily able to take advantage of this situation and open brothels in many of these towns, charging men for prostitution of the women that worked there.
The goal here was not only to make money, though. These madams used that money for town improvements and other charitable needs to help the towns grow and improve everyone’s lives. According to Conover, there were several madams well-known for their contributions. Madam Millie helped put children through college, Madam Laura Evens provided shelter for victims of abuse and provided compensation for injured workers in the area, and Madam Diamond Jessie Hayman helped to provide food and clothing after an earthquake left many people homeless (2016). Outside of charity, many madams also helped by building schools, churches, and other service buildings to evolve them from work camps into towns.
The innovation of women did not stop there. Money often equates to power, and women were no strangers to obtaining power to serve their own needs. Most were able to influence politicians with their standing, and some were even elected to positions. Most importantly, women in Wisconsin were able to establish their right to vote. At one point, Wisconsin even refused to join the Union unless women in their state could be guaranteed they would retain their right to vote in the state (Conover, 2016). Arguably prostitution was one of the driving forces behind early women’s rights and it may have taken much longer to reaffirm the equality of women without it.
There are many other myths and misconceptions associated with prostitution. Many of them are used as arguments for keeping it criminalized, so it is important to address them all. We should not consider any behavior deviant based purely on misinformation. Some common ones include the fallacy that criminalization of prostitution also leads to its abolishment, that prostitution contributes to the spread of disease, and that all prostitutes are victims in need of immediate rescue.
The age-old argument from abolitionists continues in this profession: abolishing prostitution requires criminalizing it. Despite this argument being quite successful and getting the sale of sex outlawed in many countries, there has never been any evidence to suggest that the industry suffered in any way (Ahmed, 2014). All criminalization did was push the industry underground and made it harder for sex workers to protect themselves due to the lack of safe places to operate.
History has proven that abolition through criminalization has never worked, and often works counter to the goal. No better example exists than that of alcohol prohibition in the United States, which caused organized crime to skyrocket while causing no decline in alcohol consumption. It was later rightfully repealed. The simple fact remains that if there is a large demand for something, you can never abolish it and there is no point in trying. Behavior, whether considered deviant by the majority or not, will always exist.
Many people who think of prostitution also think of sex trafficking, emphasized by previous attempts to reclassify all prostitution as sex trafficking. However, the two are quite different. Trafficking, by legal definition, involves acquiring some form of labor (in this case, sexual acts) through force, fraud, or coercion. Most people engaging in the prostitution industry do not fit this definition by any means. Yet because of this misunderstanding, many people hold onto a fantasy that all sex workers need to be saved from brothels and that they appreciate law enforcement stings that free them from this line of work.
Not only do sex workers not want to be saved, but oftentimes those being trafficked for sex do not want to be saved either (Ahmed, 2014). Most trafficking occurs with people (or in the case of prostitution, mostly women) who want to be trafficked because it is a way out of a terrible life at home, sometimes being imported from other countries. They voluntarily join these organizations because they believe it will lead to a better life. It is an opportunity for them to enter another country, even if illegally, and potentially “buy” their way out of this trafficking organization through forced labor. If they make it through, they are free. Thus, some trafficking “victims” can be partially complicit in the crime themselves because they know if they are captured they will face legal consequences of their own, such as being deported back to their home country if they are an illegal immigrant.
Another frequently used bit of misinformation concerns that of disease spread among prostitutes. Prostitution, due to current criminality, is most associated with street workers which are often riddled with diseases such as HIV, posing a strong danger to those who interact with them. The illogical argument is then that all prostitution contributes to the spread of disease, even though the reason why disease runs so rampant in current communities is that those workers are denied all access to healthcare and testing (Ahmed, 2014). Due to the profession being criminal, the responsibility of disease prevention lies entirely on the individual with no aid from employers or the government. The disease spread within prostitution communities is thus no different than the average sexual encounter between consenting adults that are not paying to have sex with each other.
Paying for sex does not inherently make sex more dangerous. Criminalizing the act of paying for sex does make it more dangerous. Research has proven that disease spread can be greatly reduced by providing programs to reduce harm among sex workers through the distribution of condoms and education of sex workers on health risks, as well as providing healthcare and counseling to these workers (Ahmed, 2014). These practices are already in use in many prostitution communities that are properly regulated, including in Las Vegas, Nevada where prostitution is already legal and regulated by local governments.
All these misconceptions on prostitution and more that have not been covered attach a strong negative stigma to the profession. Opponents have seized on this stigmatization to continue spreading false and inaccurate information that only contributes to further problems rather than helping to fix them. Understanding the reality behind prostitution can not only help the workers in the industry but also eliminate these false perceptions of the industry and see sex work as just another job one can hold.
Differences from Pornography
By all statutory definitions of prostitution, pornography squarely falls under those definitions yet is still common practice and not considered illegal. Many jokes have been told about prostitution being illegal but the simple act of filming it suddenly turns it into an acceptable form of art. Back when prostitution was first criminalized, pornography was prosecuted as a crime as well. That all changed when a case was brought before the Supreme Court and arguments were heard. The Court ruled at the time that pornography – because it was filmography and often involved creative storytelling – was protected under a person’s right to free expression (Kaye, 2016). This ruling carved out a large exception to prostitution laws nationwide, making prostitution which was being filmed exempt from prosecution.
Pornography does not need to be attacked or criminalized again. Pornography provides us insight into how prostitution can operate safely when it is properly regulated. Think of the myth that prostitution helps to spread disease again. Pornography is a perfect example of how untrue that is. The industry has been operating for decades and disease spread is low because actors are required to undergo regular testing to participate. Responsible producers want to protect their actors, just as responsible madams always wanted to protect their girls.
Instead, pornography can be held up as another example of how well prostitution legalization and regulation would work, as well as countering many of the misconceptions people hold about prostitution. There is little sexism in the industry, with a wide variety of both men and women engaging in the activities. There are no victims either. Everyone performing in these films wants to be there for a variety of reasons. It is not always just a way to make money. Some people legitimately enjoy being able to have sex all they want and getting paid to do it is just a cherry on top.
The profession of prostitution has evolved much since the days of ancient Rome. As society has continued to alter its views, it had also labeled things like homosexuality and women as dominant figures as deviant behaviors. Many societies slowly forced men out of the roles of prostitution through other societal changes, causing the role to become predominantly a female-only role. Even while criminalized, the prostitution profession continues to evolve in new ways. Men have increasingly entered the field again as those previous ideas of deviance have slowly faded away.
According to functionalist theory, if something has survived for a long time then it must serve some important function within society (Clinard & Meier, 2015). Humans throughout history have always had a strong desire for sex, and prostitution has always served the important function of allowing individuals to experiment sexually. While prostitution has changed much over time, the core function of it has remained steady and unwavering. That it has survived thousands of years is a testament to its permanence in human society. The desire for sex cannot be eliminated and so long as that desire remains, prostitution can never be abolished from our culture.
Prostitution deserves to be legalized across the globe, as it was for centuries before. Not only does legalization stand the chance at reducing disease spread, but it can also lead to more empowerment among sex workers and protect them better from dangerous situations like in any other profession. Because prostitution is illegal, sex workers are also not able to unionize to better organize their efforts and allow for appointed representatives to fight for the best interests of all sex workers collectively (Ahmed, 2014). Even though it is a job like any other, sex workers are unable to receive many valuable benefits that unions could provide.
There is irony in the situation as well, given that governments do not even need to create new regulations for sex work. Most countries already have detailed labor laws and need only reclassify sex work to fall under those laws. If sex work were legalized and regulated under existing labor laws, workers would also be subjected to fair wage laws, compensation for on-the-job injuries, and other mandatory employment benefits (Ahmed, 2014). Sex workers have many things to gain through legalization, and opponents have nothing to gain by fighting to keep it a criminal act. It is time to repeal laws against prostitution and enact proper regulations on the industry.
Ahmed, A. (2014, January 19). Think Again: Prostitution. Foreign Policy. Retrieved from https://foreignpolicy.com/2014/01/19/think-again-prostitution/. Bazelson, E. (2016, May 5). Should Prostitution Be A Crime? The NY Times. Retrieved from https://www.nytimes.com/2016/05/08/magazine/should-prostitution-be-a-crime.html. Clinard, M. B., & Meier, R. F. (2015). Sociology of Deviant Behavior. [MBS Direct]. Retrieved from https://mbsdirect.vitalsource.com/#/books/9781305840874/. Conover, A. (2016, November 27). Adam Ruins the Wild West. [Television series episode], Adam Ruins Everything. Turner Broadcasting System. Kaye, A. (2016, Winter). Why Pornography is Not Prostitution: Folk Theories of Sexuality in the Law of Vice. Saint Louis Law Journal, 60(2). Retrieved from https://scholarship.law.slu.edu/cgi/viewcontent.cgi?article=1161&context=lj. Roos, J. (2002). Backlash against Prostitutes’ Rights: Origins and Dynamics of Nazi Prostitution Policies. Journal of the History of Sexuality, 11(1/2), 67-94. Retrieved from http://www.jstor.org/stable/3704552.