Prostitution
An analysis of policy responses to the commercial sex trade based on their degree of effective harm reduction
EXECUTIVE SUMMARY
The criminalization of prostitution in California directly undermines the safety of prostitutes. The current legal status of prostitution must be altered to effectively address the inherently exploitative and violent nature of the commercial sex trade for sex workers. The four leading legislative approaches to prostitution — full criminalization, full decriminalization, partial decriminalization, and legalization — diverge in their degree of repressiveness and the ultimate result they seek to achieve. They share the similarity of placing greater emphasis on abolitionism over harm reduction.
The optimal policy guidelines for addressing prostitution would prioritize the wellbeing of sex workers over the communication of moral rhetoric. Narrow decriminalization, a hybrid of full decriminalization and legalization, would prove effective in doing this through its holistic nature. This approach lifts all criminal laws punishing the buying and selling of sex, incorporating the economic activity generated from commercial sex into the real economy. Prostitution does not gain full occupational legitimacy as the state government will serve as its primary regulator, possessing the power to impose restrictive directives that’ll preside over the industry’s practices. Thus, in addition to being subject to traditional employment and labor laws, the commercial sex trade must abide by additional stipulations such as routine STD testing for both sex workers and their clients, contraceptive use during penetrative sex, and zoning ordinances. Narrow decriminalization of commercial sex work will empower prostitutes’ abilities to seek legal justice, negotiate their working conditions, access public social services, and receive other forms of community support. This, in turn, will reduce the extent to which sex workers are subjected to and forced to accept mistreatment as an industry convention.
RATIONALE FOR ACTION
Prostitution — the commercial exchange of a sexual act for goods, services, or other monetarily valuable compensation — remains illegal in 2022 throughout the state of California by Penal Code Section 647b (Shouse California Law Group). Violation of this statue as a seller or buyer is considered a standard misdemeanor, warranting a penalty of up to six months in county jail as well as a fine of up to $1,000 (Shouse California Law Group).
While real-world sex buyers and sellers are not gender-specific roles, most active legal frameworks and public understandings of the commercial sex trade position males as the buyers and females as the sellers. Thus, this policy brief will maintain the same heterosexual-oriented perspective when describing the nature of prostitution. Furthermore, only circumstances under which all parties are legal adults will be considered.
Despite the unwavering criminality of the commercial sex trade, California has actualized several harm-reductive legislations for sex workers in recent years. One was Senate Bill 233, passed in 2019, which effectively created two safeguards: 1) protecting an individual from arrest for engagement in prohibited sex work crimes if they’re reporting to be a victim of or a witness to felonies such as human trafficking, stalking, or sexual battery, and 2) rendering the possession of condoms unsubstantiated probable cause for arrest on the basis of prohibited sex work crimes (California Legislative Information). More recently, Senate Bill 357, signed by state governor Gavin Newsom in 2022, repealed a provision of a previous state law that prohibited public loitering with the intent to sell sex (Wiley, Hannah). While the explicitly articulated intent behind this signage was to combat the “disproportionate harassment of women and transgendered adults” by law enforcement officers, some interpreted it as a step towards full decriminalization of the commercial sex trade in California, shrouding the bill’s passage in controversy (Wiley, Hannah).
Reaching a firm consensus on the most appropriate government approach to addressing prostitution has been notoriously difficult. This difficulty stems largely from sharp divisions over the nucleus of the “prostitution problem” (Benoit, Cecilia, et al.). Three distinct positions have been set forth in a Springer article, “The Prostitution Problem,” co-authored by a group of professors and researchers at the University of Victoria’s Canadian Institute for Substance Use Research and School of Child and Youth Care: 1) prostitution is no different from any other profession aside for the societal stigma surrounding the exchange of money for sex, 2) prostitution is “principally an institution of hierarchal gender relations that legitimizes the sexual exploitation of women by men,” and 3) prostitution “has a historical antecedent in earlier stages of capitalism marked by [the] globalization of markets and the internal migration of labor … where multiple forms of social inequality (including class, gender, and race) intersect in neo-liberal capitalist societies” (Benoit, Cecilia, et al.). The logic underscoring each perspective has shaped one or more of the four leading policy options superintending the commercial sex industry.
POLICY OPTIONS & ANALYSIS
Full criminalization is a zero-tolerance approach to prostitution. It employs multiple dissuasion mechanisms including the imposition of jail sentences or monetary fines onto those who engage in commercial sex in the long or short positions, rehabilitation programs for ‘Johns,’ and societal re-entry workshops for prostituted women (Benoit, Cecilia, et al.). Actual sexual contact is not necessary for an individual to be charged with prostitution; “simply offering or agreeing to perform a sexual act is sufficient” (Benoit, Cecilia, et al.). This is the current status quo in California as well as all other areas of the United States aside for sparsely populated pockets of Nevada. Proponents of this framework, namely traditional feminists and anti-human trafficking advocacy groups, possess a moral outlook that conflates the commercialization of sex with the sex-based enslavement of vulnerable women and children, many of which have marginalized intersectional identities.
The results from a 1999–2004 cross-sectional study of adults accessing healthcare at St. James Infirmary in San Francisco, California helps put into perspective the “rampant violence sex workers experience in criminalized settings” (Lutnick, Alexandra and Deborah Cohan). 32% of the women reported experiencing physical assault during sex work and 29% sexual assault (Lutnick, Alexandra and Deborah Cohan). Many of these respondents did not file a complaint because the illegality of their occupation deters them from seeking legal justice, or as in the words of one of the surveyed sex workers: “You know, it’s like when you are prostituting and something happens to you, the police don’t really want to help you, because you are already committing a crime … So it’s like why should they help a criminal?” (Lutnick, Alexandra and Deborah Cohan).
The illegality of prostitution depersonalizes sex workers as belonging to a disposable and unvirtuous population. It outwardly communicates that the rights and protections of sex workers take a back seat to shielding the broader population from the alleged negative effects of the commercial sex trade, such as its supposed role in the expansion of human trafficking (Benoit, Cecilia, et al.). In reality, research quantifying the presence of sex trafficked victims within the general sex work population is extremely problematic. Its main use has been to vindicate callously punitive government policies that fail to consider the more prevalent socioeconomic, financial, and dependency factors that drive entrance into sex work in much greater droves (UCL Institute of Health Equity).
The full criminalization approach prioritizes the termination of sex work at the sacrifice of implementing adequate social mobility and exit mechanisms for sex workers. This illustrates willful ignorance of the chronic social exclusion that a major proportion of sex workers are victims of (UCL Institute of Health Equity). For example, in an annual risk assessment survey conducted by the Los Angeles County Department of Public Health in 2004, 25% of its respondents identified themselves as engaging in survival sex trading, or the exchanging of sex for resources that’d meet their subsistence needs, like food or money (Clingan Sarah E., et al.). The data from this study supported the general assumptions that the greatest drivers into prostitution include barricades from the mainstream employment structure (e.g. lack of technical training and qualifications, possession of a criminal record), childhood abuse, crippling financial debt, alcohol and drug dependencies, and disjointed institutional care systems and safety nets (UCL Institute of Health Equity). Similar to other vulnerable populations, sex workers “experience a syndemic, where social problems, such as poverty, violence and homelessness, combine to negatively impact on health in a way that is more severe than if they were afflicted by just a single social problem” (UCL Institute of Health Equity).
The illegality of prostitution forces sex workers into even more “marginalized and vulnerable positions” (UCL Institute of Health Equity). Considering the reality that a significant proportion of sex workers are in the business simply because they lack any other economic option, it does not make sense to emphasize punishment or abolitionism over rehabilitation and support. An absence or fragmentation of social services for sex workers with a complex array of persistently unmet needs obstructs their abilities to break free from cycles of exploitation and destructive behavioral patterns (UCL Institute of Health Equity). Even if compulsory rehabilitation measures are put into place to support an individual’s exit from sex work, the majority of these programs and directives are not multi-faceted enough to address the complex interaction of social exclusivity factors that the majority of prostitutes possess (UCL Institute of Health Equity).
Full decriminalization, falling on the opposite end of the spectrum, “is the complete removal of criminal penalties related to the [commercial] sex trade” (Global Health Justice Partnership, and Sex Workers and Allies Network). Prostitution becomes totally integrated into the legitimate economy as any other ‘ordinary’ profession. This legal framework is the one most enthusiastically supported by networks promoting the rights of sex workers, viewing it as “expanding the individual and collective power of sex workers to work more safely, challenge injustice and seek fair renumeration for their labor” (Global Health Justice Partnership, and Sex Workers and Allies Network). According to this perspective, the evangelical feminist discourse that presents a one-dimensional depiction of prostitutes as being victims of sexual abuse is inaccurate. The mainstream overemphasis on the sexuality component of prostitution minimizes the resourcefulness of women’s’ success with securing employment “in the context of persistent poverty and instability … [that] offers just enough money, stability, autonomy, and professional satisfaction” (Benoit, Cecilia, et al.). Complete legitimization of prostitution thus stems from the understanding that commercial sex workers should be viewed through the same lens as any other worker that recognizes the lucrativeness of capitalizing off of the male gaze.
In reality, positioning prostitution as a form of sexually liberating female empowerment warps the industry’s true dangerous nature. Full decriminalization ignores the uniquely destructive nature of prostitution, even relative to other professions that commodify the female physical form such as pornography or exotic dancing. The exchange of sex for money severs a woman’s “inner connection to and ownership of” her body (Benoit, Cecilia, et al.). ‘Consent’ is rendered a storybook concept for working prostitutes when the commercial exchange of sex is necessary to sustain their livelihood. Most male sex buyers would likely harness their purchasing power in a sexually coercive manner, believing they are entitled to have their sexual appetite appeased however they see fit, regardless of whether or not the prostitute is comfortable with the request. Decriminalizing commercial sex work will not empower prostitutes. What it will do is empower the minimization of sex workers as nothing but objects of physical desire whose purpose for existence is to provide sexual fulfillment.
In a model of full decriminalization, only conventional “tax, zoning, and employment laws as well as occupational health and safety standards” would be imposed on the commercial sex trade (Lutnick, Alexandra and Deborah Cohan). Since there are no other occupations that involve customers genitally penetrating service providers, there are no pre-existing labor or trade protections inheritable by prostitutes to serve as sex safeguards. If the commercial sex trade is fully decriminalized, the government is also not allowed to impose a prostitution-specific code of conduct that addresses this discrepancy either. The full decriminalization of prostitution thus does not protect sex workers from bearing unreasonable risks on the job such as sexually transmitted diseases, unplanned pregnancies, or forced fulfillment of client requests that violate personal sexual boundaries.
Partial decriminalization, also sometimes referred to as the “Nordic model” or “neo-abolitionism,” enacts punitive laws only upon those that purchase sexual services or profit off of the earnings of a sex worker, exempting sex workers themselves (Benoit, Cecilia, et al.). This concept of asymmetrical punishment was first introduced in Sweden in the late twentieth century and is reflective of the country’s understanding of the ‘prostitution problem’ as being grounded in gender inequality (Kingston, Sarah and Terry Thomas). The desired outcome for this approach is the eventual eradication of prostitution through the elimination of its market demand. Almost immediately, the Nordic model seemed to be successful in deterring street prostitution, incentivizing its adoption in other countries including Canada, Northern Ireland, and Iceland (Benoit, Cecilia, et al.).
Outside of the reviews undertaken by the Swedish government themselves to demonstrate the laws’ effectiveness, there exists little evidence that the Nordic model has actually made any substantial progress in the abolishment of prostitution and the gender inequalities it profits off of (Kingston, Sarah and Terry Thomas). Even the figures reporting a decrease in street prostitution in Sweden necessitate questioning as external research hypothesizes the decrease as instead simply being indicative of a venue change as clients seek to avoid police prosecution. The constriction of the street-based industry may have unintentionally pushed the sex industry further underground into indoor venues with significantly less visibility (Kingston, Sarah and Terry Thomas). This has reduced the negotiating abilities of sex workers and increased the pressure for them to accept whatever clients they can get and perform whatever services are requested of them. They are met with resistance when attempting to screen customers as many are now unwilling to provide identifying information (Kingston, Sarah and Terry Thomas).
The literature also indicates that when the Nordic model is implemented by countries attempting to replicate Sweden’s apparent success, there arises a “problem of incomplete and inappropriate policy transfer because of the lack of support for the law by practitioners and a lack of implementation” (Kingston, Sarah and Terry Thomas). Despite selling sex no longer being the punishable offence, law enforcement officers continue to respond to and deal with sex workers in a biased and discriminatory manner.9 Stigmatization of and misconceptions regarding prostitution have persisted with many police officers expressing the belief that those who sell sexual services cannot be raped (Kingston, Sarah and Terry Thomas).
Legalization places the commercial sex market in a state of quasi-legality where the sale and purchase of sexual services is considered neither explicitly legal nor illegal (Benoit, Cecilia, et al.). In addition to the conventional regulatory and protective legislation governing most other professional activities in the United States, another set of legal requirements would be imposed specifically on prostitution by the state government.
This is the legal system that is currently in place in Nevada. Prostitution is permitted only in legal brothels in eight of the state’s counties (Nevada Division of Public and Behavioral Health). Outside of these locations, prostitution remains a misdemeanor crime (Nevada Division of Public and Behavioral Health). In licensed brothels, prostitution is subject to many rules and regulations including: 1) regular submission of blood samples collected by a licensed health care professional to confirm the presence or absence of common sexually transmittable diseases, 2) required use of “latex or polyurethane prophylactic,” and 3) a health notice provided by the Nevada Division of Public and Behavioral Health visibly mounted somewhere in the establishment (Nevada Division of Public and Behavioral Health).
Legalization receives the least amount of support from sex workers because it takes away the most appealing aspect of the commercial sex trade: the high degree of independence (Lutnick, Alexandra and Deborah Cohan). In fact, some prostitutes have even expressed preference for full criminalization instead. An independent sex worker based in San Francisco, California explained, “I can take care of my own health and pay attention to my own health and do what seems right to me, and not be prodded and examined all of the time. Which I’ve heard from people working in … Nevada. They say they are just so sick of all of the exams and hoops that they have to jump through, and the paperwork that they have to fill out, and that it is very laborious” (Lutnick, Alexandra and Deborah Cohan). The legalization of prostitution does very little to remove the criminality aura surrounding the profession. The regular mandated poking and prodding of prostitutes, for example, conveys the sense that sex workers are ‘dirty.’ The ‘whore’ stigma is sustained in the legalization framework.
POLICY RECOMMENDATIONS
A legislative model of narrow decriminalization, a hybrid of full decriminalization and legalization, appears to be the optimal option for alleviating the exploitative nature of the commercial sex industry without invertedly encouraging the objectification of the female physical form by male sex buyers. An integrative policy strategy is grounded in multi-level government protection, community initiatives, and societal welfare promotion programs.
All criminal laws punishing the purchasing and selling of sexual services would be removed, qualifying them as activities that contribute to the real economy.
To address the unique circumstances surrounding the occupation, regulatory measures surveilling health, safety, and public decency would be imposed by the state government in addition to ordinary commercial and labor laws. Any violation of these prostitution-specific stipulations will be criminally penalized. Both sex workers and their clients are required to test negative for any sexually transmittable diseases before their transaction can occur and be able to provide dated documentation of these results. These examinations may be conducted at a community-based peer-led health clinic. Condoms, dental dams, or other contraceptives must be used whenever relevant. Prostitution does not need to occur in a full-fledged brothel but it should be in an indoor location that is 1) a certain proximity away from any public schools and religious buildings, and 2) officially registered with the state as a place for commercial sex to occur. The venue is subject to routine sanitation inspections and will be required to mount their health placard in a spot that is clearly visible to patrons.
Recognizing the proclivity of sex workers to be bound to multiple pathways of chronic societal exclusion, the state government is responsible for investing in holistic welfare resources that target their unique circumstances and needs. Structural reforms that address generational poverty and systematically imbedded marginalization should be prioritized in policy creation. Sex workers belonging to especially vulnerable identity groups should have access to strong safety net programs that help with finding stable housing, reducing debt and building credit, etc. In addition to physical/sexual health care, sex workers should also have access to programs that support mental and behavioral health, help combat drug and alcohol addictions, and manage stress or trauma. For prostitutes who desire employment outside of commercial sex work, multifaceted exit strategies should be available. This includes affordable vocational, training, and certification programs as well as unemployment benefits during transitional periods.
