Because the U.S. may have to decriminalize prostitution per U.N. Treaty, the subject has received much attention in recent times.  If the U.S. Senate passes the UN Convention that was adopted by the U.N. General Assembly and has been signed by 165 countries this could force the U.S. to acknowledge voluntary prostitution as a legal women’s choice as well as a women’s right to choice of abortion (sexwork.com, 2006).

This paper debates whether the acknowledgement of this really is in the best interests of the United States of America, looking at statistical evidence and giving argument for both negative and affirmative answers on this question. It supplies motivation for this and draws a  conclusion based on argument presented herein that prostitution in America should not be legalized.

Prostitution in America has a long history. It began as a European import to North America. During the 1700s, due to the stationing of soldiers in New York and Boston these cities had the most prostitutes. After 1810, prostitution became both a political and social problem. Prostitution rose due to rapid urbanization, expanding male population, low female wages and discrimination against women (publicia.state, 2005).  Anything with such a long history cannot be expected to just go away and will have to be dealt with sensitively.

Current law in America regarding the issue stands as follows:  Prostitution is illegal in all states except Nevada, where it is strictly regulated. Some state statutes punish the act of prostitution, and other state statutes criminalize the acts of soliciting prostitution, arranging for prostitution, and operating a house of prostitution. On the federal level, the Mann Act (18 U.S.C.A. § 2421 [as amended 1986] makes it a crime to transport a person in interstate or foreign commerce for the purpose of prostitution or for any other immoral purpose (West, 1998).

Bearing the above in mind, there are a number of questions, moral, ethical, and perhaps legal in nature surrounding this issue which must be answered before any sort of satisfactory resolution to this question can be achieved.  Some of these are raised in this paper.

As with any situation, there are various pros which can be said to go in favour of the legalization of prostitution.  There is no doubt that prostitution is the oldest “profession” known to mankind, and that there is a market for it.  I use the inverted commas because there is debate as to whether or not it can be considered to be a profession.  The legalization of the “profession” would allow the money which is spent on all the legalities to be put towards prevention and rehabilitation.  In addition, the danger of the underground would be eradicated. There are other arguments for the legalizing of prostitution.

As reported on the Sex Work and Sexual Exploitation in the European Union website, Jo Bindman and Jo Doezema, in Redefining Prostitution as Sex work on the International Agenda, argue that the designation of prostitution as a special human rights issue, a violation in itself, emphasizes the distinction between prostitution and other forms of female or low-status labor… however exploitative they are. They go on to back this up by stating that it thus reinforces the marginal, and therefore vulnerable, position of the women and men involved in prostitution. By dismissing the entire sex industry as abusive, it also obscures the particular problems and violations of international norms within the industry which are of concern to sex workers.” Thus anything but legal status for sex workers leads to marginalization and abuses. Obviously the legalization of the “profession” would mean that rules, guidelines, and governing bodies would be implemented in order to oversee it.  Some people feel that the police should rather be spending their time going after harder criminals (Voices of Youth, 2006).

There are a number of historical American cases which have a bearing of the current state of American law, with results on both sides of the argument.  For example, in Griswold v Connecticut, in 1965, Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counseling, and other medical treatment, to married persons for purposes of preventing conception,  promoting the right to privacy (Oyez, 2005).

In the case of Roe v Wade (1973), the Court held that a woman’s right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court’s ruling (Oyez, 2005).

But these do not apply to prostitution because they are not form of a profession. It is rather closer to slavery since customers have control over them. Lawrence v. Texas says that people have sexual privacy (the Court reasoned that the case turned on whether Lawrence and his male lover Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause) (Oyez, 2005). This also does not apply to prostitution because prostitution affects the public in a negative ways.

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Many incidences of prostitution are also linked to other crimes, such as rape, kidnapping and drug use.  There is a theory that the legalization of prostitution would lead to a reduction in children being kidnapped or sold into slavery, and this is at best very optimistic, and at worst dangerously laughable, and negligible. Pedophiles and the slave trade exist on their own independently from prostitution and are issues that need to be addressed on their own.

Drug abuse and prostitution have also been linked.  For many people the side effect of drug consumption is to want to have sex, and if they are receiving payment for this, they can use it as drug money – a vicious circle. Injection drug use is high in these circles.  In “Examining the Criminal Careers of Prostitutes within the Nexus of Drug Use, Drug Selling and Other Illicit Activities, Sheila and Christopher Maxwell report that half of the women who reported regular drug use also prostituted (Maxwell and Maxwell, 2000).

Based on the above argument that the legalization of the “profession” of prostitution would in fact increase the number of women participating in it, injection drug use too would increase.  Drug users who are not prostitutes could even consider becoming prostitutes since legalization in order to get money to fund their drug habit.

Consider the following statistics, bearing in mind that prostitution is illegal in America currently.  There are about 1 million (or 1%) women who are prostitutes in North America alone.  In addition, approximately 600,000 children under 18 are involved in either pornography or prostitution (the average age of entry into this is 14). Most prostitutes who are addicted to drugs or alcohol became addicted on the streets, rendering them even more trapped so that they can earn money to support these habits.  90% of these women are controlled by a pimp.  The average cost of arrest, court appearance and incarceration costs amounted to nearly $2,000 in 1987.  Expenditure per city on prostitution control ranges from $1 million in Memphis to $23 million in New York.  Finally, every year, a prostituted women is raped 19 times, kidnapped ten times, and beaten (Veronica’s Voice, 2006).

Having borne all of the above in mind, questions must be asked.  How would the legalization of prostitution help this?  Surely these statistics would just increase should prostitution be legalized, as the legalization of prostitution could be taken by members of the public as a condoning of it.  Then there is the question of morality.  If we believe prostitution is immoral, would it be right to legalize something which we believe is immoral?

If prostitution was legalized, would the youth then take it that it was an acceptable way of making money and would they then be even more then be drawn into it? These are just some of the questions surrounding a highly controversial issue. Some people believe that prostitution increases the breaking up of families, and an increase in the divorce rate as they say that the legalizing of prostitution would lead to an increase of infidelity amongst men.

Certainly if the legalization of the “profession” leads to an increase in prostitution levels, then the levels of the transmission of sexually transmitted diseases and rape and violent sexual crimes would also increase.  It seems that there are more cons than pros associated with the legalization of prostitution.

One way of answering at least some of the questions surrounding the issue would be to analyze other countries where prostitution has been legalized and try to ascertain what lessons have been learned there.  Has prostitution lessened, or become less threatening for those involved in it in countries where it is now legal?  From information obtained for the purposes of this research, it seems not.

Take for example New Zealand where prostitution was legalized a number of years ago.  The following is part of a  comment which was obtained from the Voices of Youth website, where it was posted by a New Zealander:  I come from New Zealand, where prostitution became legalized just a few years ago!. The issue now in my country is the large number of under-age girls as young as 12, selling themselves on the streets. They are being pimped out by gangs, in return for drugs and money (Voices of Youth, 2005).

This seems to bear out the theory that legalizing the “profession” makes it more acceptable and draws children into it from an even younger age (12) than is the average age for children in North America entering into it (14).  Legalization of prostitution could send quite a mixed message to the members of the public, in particular the youth.  It would have the effect of teaching children that they don’t have to study, work hard and get a qualification in order to make money and get what they want in life.  It teaches them that they can make money by the sale of their bodies, and if they never get an education, they will never be able to get themselves out of it.   We must be careful to not give our children the wrong message  Legalization of prostitution can make children think that we not only condone it but also think that it IS moral.

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The fact does remain however that New Zealand appears to be a country which has legalized prostitution with the fewest conditions imposed – even street prostitution is legal there.  Other countries such as Canada, England, France, Wales, Denmark, a lot of South America, Israel, and Australia (sexwork.com, 2006), have all legalized prostitution, with varying results.                        Consider the case of a 25 year old waitress who turned down a job providing sexual services in Berlin, Germany, where the “profession” has been legalized. Under laws passed in Germany earlier this year she faces possible cuts to her unemployment benefit.

Prostitution was legalized in Germany just over two years ago and brothel owners – who must pay tax and employee health insurance – were granted access to official databases of jobseekers.

The waitress, an unemployed information technology professional, had said that she was willing to work in a bar at night and had worked in a cafe.

She then got a letter from a job centre which informed her that an employer was interested in employing her. It asked her to call him. She did so, and only then realized that the company was a brothel.

Under Germany’s welfare reforms, a woman under 55 who has been unemployed for more than a year can be forced to take any available job, including in those in the sex industry – or lose her unemployment benefit (telegraph.co.uk, 2005).

It would seem that even in a country where laws about prostitution have been passed, one can still be forced into prostitution!  In no way does this help alleviate the notion that prostitution is in fact a form of slavery.  If this notion was upheld, the legalization of prostitution would be contrary to the abolishment of slavery.  Nonetheless, America is one country out of a very few remaining where prostitution has not been legalized.

The Ciao website ran a survey asking people what their opinion on the legalization of prostitution was, and some interesting points were brought up, including the religious aspect.

For example, Christianity teaches that sex is something sacred, to be shared between a man and his wife. Other religions purport the same thing.

It is not necessarily the anti religious aspect of the “profession” that is the problem, but possibly more the fact that by legalizing it we are obliquely encouraging people to revolt against societal teachings and disciplines. Whereas churches, governments and other organizations to which people turn to for assistance should not turn prostitutes away, this condoning of a religiously frowned upon “profession” in a society which in some circles is thought to already be lacking in discipline can not be considered to be a good thing (Ciao 2006).

Another interesting point raised by a respondent to the survey was that if the law says that prostitution is legal and is a “profession” to be condoned, how can we as parents, guardians and advisors to children, advise them against it?  The argument that “the Government says it’s okay but we say it’s wrong” does not hold much influence with teenagers – it’s a known fact that teenagers on the whole are looking for reasons to rebel against their parents and for the most part will side with others who disagree with them (Ciao 2006).

It also seems that the legalization of prostitution may also lead to the legalization of abortion, an issue which must be given due consideration before any decisions are made.

One cannot simply say that legalization is not the answer, without giving some feasible solutions.  Perhaps aspects such as an education drive, showing people how to empower themselves, rather than how to sell themselves, could be embarked upon. Both adults and children need to be focused upon.  A “help them help themselves” attitude may be adopted.  Flyers and literature could be distributed advertising the initiative. Funding, adult education and job creation in more acceptable sectors could be used as motivation to get women out of prostitution.  Public awareness drives could also be beneficial in helping those who would like to counsel family members and friends about staying out, or getting out of prostitution.

Conclusion

At this point the question of the legalization of prostitution in America can only be resolved by assessing whether the surrounding questions and facts give more weight to the pro side or the con side.  Based on the above discussion, the author feels that prostitution in America must not be legalized, as the risks and moral issues associated with this outnumber the advantages associated with it. The country could redress the problem by looking at other factors such as education and empowerment.