Introduction
Repressive sex work policies characterize sexual politics all over the world. In most parts, sex work criminalization is dominant. However, people still engage in the practice. Thus, the abolition-like policy has always characterized many regimes with regard to how they view sex work. The rallying calls behind this policy leaning borrow largely from a strong moral rejection of paying for sex. Countries approach the concept of prostitution from three perspectives depending on their socioeconomic and cultural traits: criminalization, decriminalization, and legalization (Joulaei et al., 2021). Nonetheless, many governments worldwide have put punitive measures under criminalization towards buying sex, selling sex, or organizing. However, in recent times, there have been signs of laxity from different quarters in regard to the criminalization of prostitution. In the United States, several states, such as California and New Hampshire, have begun challenging repressive laws against prostitution, leading a public discourse on the reasoning behind the illegalization of prostitution.
The effects of legalizing prostitution are largely still unknown. The studies that have been carried out to try to unravel them have been in controlled settings. Thus, it is safe to say that the evidence of the effects of legalized prostitution can only be drawn from observation, leading to either legitimizing or delegitimizing safety and health public concerns. However, as Joulaei et al. (2021) posited, it will be almost impossible to observe empirical effects while punitive laws are still in place. Consequently, it will be prudent for the legislators to relax laws that ban prostitution, which seems politically infeasible, provided that society continues to view prostitution as a taboo.
On the flip side, the criminalization of prostitution has also been reported to be associated with various vices within society, such as increased violence and stigma, socioeconomic hardships, and infringement on the rights of prostitutes. Conversely, to what would be the expectation, Albert (2021) demonstrated that the criminalization of prostitution had not shown any evidence to deter sex workers and their customers. However, it only increases the danger associated with the practice. It forces sex workers and their customers to operate from isolated and remote locations, impeding the use of strategies for harm reduction and safety. These victims are also less likely to report cases of violence whenever they happen. Besides, the criminalization of prostitution leads to further stigmatization of sex workers, which limits opportunities such as resource access, education, and the acquisition of an official job (Pearson et al., 2022). As a result, sex workers are likely to be arrested and convicted, making it almost impossible to secure alternative, well-paying employment positions, which is why they remain in the sex work industry. The criminalization of prostitution also correlates with increased risks for violence, sexually transmitted diseases, and adverse social outcomes (Pearson et al., 2022). Besides, sex workers are also less likely to seek health care and other critical services.
Thus, there is a need to investigate the best ways of decriminalizing prostitution and assessing its effect on the criminal justice system. The biggest hindrance to this move is the hardlines held by those in authority, the societal moral view about prostitution, and the unavailability of sufficient evidence regarding the positive impact that decriminalization of sex work can have on criminal justice. In this paper, prostitution will be examined from a historical and social perspective, and arguments pro decriminalization will be highlighted as a recommendation that can create a safer environment for sex workers.
The History of Prostitution
Prostitution is one of the oldest professions, and it has been under regulation ever since. The regulation of prostitution provides an interesting analysis, reflecting the conjecture that regulating illicit markets may lead to a rise in criminal activities. Various historical episodes lend credence to the immemorial age of the profession through evidence that suggests that the profession was well intertwined in the economy, however, with some form of regulation (Joulaei et al., 2021). The first prostitution record is as old as 2400 BC, when sex work was closely linked to Sumer’s temple service (Sanger, 2019). During this time, sex work was regarded as a form of worshiping and sacrificing to the gods of fertility. In 600 BC, the Chinese empire led by Kuang Chung legalized brothels to help the state increase its income, with the profession only allowed to be practiced in designated places. Likewise, the Romans embraced regulation of the profession in 180 BC. In the case of Romans, the sex workers were required to apply for and obtain a license that would dictate the terms of their practice, including the price and names under which they practiced (Sanger, 2019). Although the Chinese and Romans had a negative moral view of the profession, a considerable chunk of the society argued that it helps to impart a critical order to society, helping to provide a healthy income source. The feeling of immorality towards prostitution has always existed since the early days. During the 1400s, when a pandemic hit Europe, there was a negative belief across the continent associating the profession with the pandemic.
Several concerted efforts and attempts have emerged in the last two centuries agitating for regulations that will legalize and reform the practice. Some of the reasonings backing these efforts have been the view that women are exposed to environments prone to violent acts and a high risk of contracting venereal diseases, and there is a need to reduce this risk. An approach to such regulations upon which the proponents of legalization of the profession base their argument is the 1864 Contagious Disease Act of the United Kingdom that mandated all sex workers to be arrested and women to be subjected to venereal disease examination before they were allowed back to society (Sanger, 2019). On testing positive, they were put under a treatment regimen to heal before being allowed back into the profession. Those agitating for the legalization of the profession argue that with legalization, such laws and inhuman treatment of sex workers will not be necessary since people will willingly take the initiative of accessing regular healthcare checkups to avert the risks that come with the profession.
In the United States, prostitution was relatively legal as it was not against the statutory laws before World War I. However, as a sort of vagrancy, the federal government provided regulations. The laws against adultery only punished prostitutes as sexual deviants. Individual states started enforcing regulations against the profession in 1875, leading to outlawing of the profession in 50 states (Sanger, 2019). The federal government also prohibited prostitute immigration from foreign countries. Further regulation of prostitution came in the form of the White-Slave Traffic Act (Mann Act) in 1910, which abolished white slavery and the transportation of women across states for immoral purposes. The Act was primarily enacted to address issues around prostitution, immorality, and trafficking. Its power to regulate prostitution was then weakened following the Hokes vs. United States ruling that restricted prostitution regulation to the province of the states (Joulaei et al., 2021). Thus, the states took over the regulation of prostitution between 1913 and 1971, enforcing laws of prostitution. By 1971, there were numerous laws enacted opposing the profession. Currently, prostitution is considered illegal in 49 states. In Nevada, prostitution is legal in only 11 rural counties.
The Criminalization of Prostitution and Its Link to Criminal Justice
A steadily growing literature reveals a close connection between the repressive approach to prostitution and its negative impact on human rights principles and public health. The criminalization of prostitution impacts these principles both directly and indirectly, and it is continuously becoming more understood. Besides the stigma faced by sex workers, they are at risk for violence and negative health outcomes due to the lack of regulations protecting individuals operating in this field (Srsic et al., 2021). As a result, it becomes nearly impossible for sex workers to benefit both from work and human rights. One would then argue that criminalizing sex work and workers could easily lead to emboldening negative opinions concerning the profession and the workers. The action would then subject sex workers exposed to such circumstances to an increased likelihood of developing a spoiled identity, which risks causing them to be undervalued in society, socially excluded, and discriminated against. These cases present perfect risk factors for living defiantly against the established rules and exposing sex workers to criminal tendencies.
Sex work for a long time has had very close ties to risks of HIV/STI infection and sexual and physical violence. Researchers suggest that while sexually transmitted diseases are prevalent among sex workers, potential interventions include the establishment of community resources maximizing collaboration, and facilitating social relationships among workers (Pearson et al., 2022). At the same time, such interventions would imply a level of decriminalization, as currently, legislation is designed to apply criminal justice against individuals operating in the field rather than rehabilitation and support.
Repressive policies do not benefit sex workers but, based on research, create further barriers. For example, current literature highlights that individuals who work in the field are at risk for physical and sexual violence (Srsic et al., 2021). At the same time, receiving protection would imply collaborating with law enforcement, which is impossible due to the criminalized status of sex work. These findings align with the argument of Albert (2021), who suggested that criminalization and oppression of the profession tend to make sex workers vulnerable to risks of violence from different corners, including clients, the police, managers, immigration officials, and the judiciary. The most vulnerable sex workers to violence risk include those also engaged in drug abuse, operating from the streets, transgender, and migrants. Nonetheless, while justice can be implemented to minimize the challenges experienced by this particular demographics, the current circumstances limit opportunities such as accessing legal and medical support. Decriminalization, on the other hand, can address the social justice challenges correlating with the marginalization of sex workers (Srsic et al., 2021). In a society in which sex work is supervised and regulated rather than punished, people would be able to work under safer conditions.
The criminalization of prostitution leads to causing the state to be the worst enemy of sex workers. It is especially highlighted regarding the violence and discrimination experienced by sex workers when interacting with law enforcement (Krüsi et al., 2021). In many circumstances, these oppressive tactics lead to blatant violation of basic human rights, including harassment and assault, shaming and naming, blackmail and extortion, arbitrary arrest and detention in inhumane conditions, bribery, and exploitation. It can also lead to unlawful profiling of prostitutes, denial to access justice, forced rehabilitation, deportation, and expulsion. Albert (2021) enriched this discourse by associating the excessive police force toward sex workers with various forms of harm. He alludes that instead of rescuing and providing security to sex workers, due to the criminalization of the profession, the police may also be the source of significant harm, including aggressiveness, displacing the sex workers from their sites of operation, raiding these sites, and closing them down in some circumstances. Such mayhem cases caused by the police have led to some plausible allegations linking the police as the greatest threat to the prostitute’s safety.
Trafficking is also a serious issue in the prostitution industry, whose definition relates to the prostitute’s regular practice of sharing information and space and dictating business terms. Two opinions exist in regard to trafficking and its correlation with prostitution. On the one hand, decriminalization is considered ineffective, while on the other hand, it generates fewer opportunities for traffickers to infringe upon one’s freedom (Lee & Persson, 2022). The most vulnerable sex workers in any form of repressive trafficking regulations are migrant sex workers. An example is a migrant sex worker entering a country with stringent regulations against sex work. They run a high risk of deportation. They are vulnerable to other forms of abuse merely on the suspicion that they engage in sex work.
Trafficking can also cause sex workers to become victims of very serious crimes, especially in foreign countries with strict sex work regulations. However, strict anti-sex work regulations facilitate circumstances in which individuals are coerced into entering the industry illegally or, as in the case of trafficking, against their will (Lee & Persson, 2022). Regardless, it is plausible that criminalization of sex work can be a key attraction of trafficking since it tends to increase the dependence of sex work on smugglers, pimps, and for-profit entrepreneurs. Thus, to have a market, migrant sex workers are forced to pay those organizing their travel for assistance in organizing their stay, work, and stay in the foreign country. As Joulaei et al. (2021) mention, the authorities may also perpetuate injustice towards sex workers if they face a court case by offering them insufficient witness protection. The inability of the law under the criminalization policy in governments that have taken a hardline towards sex work both hampers the fight against sexual abuses such as trafficking and harms the sex workers. Otherwise, in most cases, organized crime flourishes in illegality and criminalization situations.
Decriminalization of sex work has a negative impact on the working routines of the sex workers and their relations with the general public, which in turn impacts their integration into society. In their study, Pearson et al. (2022) conclude that repressing sex work does little to stop it. Instead, it only elevates stigmatization and the risk of violence and sexually transmitted diseases. When faced with stringent regulation measures, sex workers would prefer remaining out of reach of the authority as opposed to abandoning the practice altogether. Thus, many would prefer forming working groups that operate during odd times in remote environments that accord them a sense of freedom from the preying authorities. Illegalizing brothel keeping pushes sex workers to operate from dangerous isolations while criminalizing sex work clients jeopardizes establishing regular safety precautions. It also increases the danger of working routines and the interactions between sex workers and their clients. Such conditions also hurry the negotiation process and client screening, causing the clients to be less willing to reveal their personal information.
The increased difficulty of the working routines exacerbates the economic pressure leading to decreasing control of the sex workers over work. This situation is enabled by the risk of facing decreased possibilities of setting conditions they use to provide their services (Albert, 2021). The main factor leading sex workers to lose control over their work is the stigma that comes with the practice. As a result, the demographic is less likely to seek assistance from law enforcement as well as the healthcare community. Stigmatization of sex work and workers also has a negative impact on job-related psychological stress. It can then evolve into other serious dangers, including putting the safety of the client at risk.
Recommendation
Based on the aforementioned arguments, it is certain that criminalizing sex work does not minimize prostitution but only generates circumstances in which it becomes more dangerous. Thus, decriminalizing it would address the current barriers faced by the vulnerable demographic within the industry. Moreover, decriminalization addresses multiple elements, such as the current legal, economic, and socio-cultural barriers. On the one hand, sex workers will be protected under the legislation as well as provided with assistance. Moreover, the savings in the health sectors and the tax revenue are economically beneficial (Srsic et al., 2021). On the other hand, decriminalization addresses the current prejudice and stigma, which means that sex workers will be more likely to be able to leave without facing ethical repercussions from society. Decriminalization would address the lack of healthcare resources and limitations concerning human rights protection. In a society in which prostitution is accepted as impossible to abolish and only requires regulations, individuals will be comfortable going to the police in case they are violated, doctors in case health risks are high, and access social services. Moreover, decriminalization may indirectly benefit the efforts to minimize sex trafficking.
Conclusion
There is still lacking empirical evidence that provides clear input on the impact of the decriminalization of sex work on sex workers and society at large. The profession of sex work has been in existence since time immemorial. However, it has never received a green light to fully operate in any given society without facing on-and-off hurdles with stiff regulations. These regulations come with challenges, including the safety of those involved in the industry, violation of human rights by the authorities, human trafficking, and poor working conditions and schedules. Thus, to obtain empirical evidence associating the decriminalization of the industry with its integration into society, it will require that the authorities relax the laws and policies regulating the profession.
References
Albert, L. S. (2021). Lifting the veil: The unintended consequences of the legalization of prostitution. Human Rights Quarterly, 43(4), 659-682. Web.
Joulaei, H., Zarei, N., Khorsandian, M., & Keshavarzian, A. (2021). Legalization, Decriminalization or Criminalization; Could We Introduce a Global Prescription for Prostitution (Sex Work)? International Journal of High-Risk Behaviors and Addiction, 10(3). Web.
Krüsi, A., D’Adamo, K., & Sernick, A. (2021). Criminalised interactions with law enforcement and impacts on health and safety in the context of different legislative frameworks governing sex work globally. Sex Work, Health, and Human Rights, 121–140. Web.
Lee, S., & Persson, P. (2022). Human trafficking and regulating prostitution. American Economic Journal: Economic Policy, 14(3), 87–127. Web.
Pearson, J., Shannon, K., McBride, B., Krüsi, A., Machat, S., Braschel, M., & Goldenberg, S. (2022). Sex work community participation in criminalized environments: A community-based Cohort Study of occupational health impacts in Vancouver, Canada: 2010–2019. International Journal for Equity in Health, 21(1). Web.
Sanger, W. W. (2019). The History of Prostitution – Its Extent, Causes, and Effects Throughout the World – Being an Official Report to the Board of Alms-House Governors of the City of New York. White Press.
Srsic, A., Dubas-Jakóbczyk, K., & Kocot, E. (2021). The economic consequences of decriminalizing sex work in Washington, DC—a conceptual model. Societies, 11(3), 112. Web.