Decriminalization takes prostitution from the jurisdiction of the criminal code. It means private sexual acts between consenting adults are placed outside the realm of criminal laws.
By Eric Glatz
With the exception of a rural area of Nevada, prostitution remains illegal in every state of the US. In Canada it is illegal in all provinces and municipalities to my knowledge. Illegal or not, it exists as an informal institution in every metropolitan area. The selling of sexual services represents a viable market in Canadian and US societies regardless of the criminal stigma attached to it and the consequences of engaging in it. Any analysis of prostitution requires the consideration of historical, economic and social factors which all contribute to our view of prostitution.
Our sexual mores, social attitudes, laws and our economic systems work on several levels; often behaviour that is not tolerated in public, is accepted, even encouraged, in the private areas of our lives. For us to look at prostitution it is necessary to consider the delicate balance between the public and private areas of our lives. We should also remember that when an issue as volatile as prostitution is a focal point, it tends to ellicit gut-level reactions. Even from a highly rational investigator.
Woman as a commodity in a market controlled by males is a feminist issue. This arrangement is often identified as being sexually exploitive and potentially harmful to the woman. Prostitutes have been viewed as oppressed by economic hardship, thus causing them to sell their bodies to men, by laws which punish them and not their customers, and by the violence of pimps who take a large cut of the money prostitutes earn. Prostitutes have also been glorified by male society as being "the only honest women." Prostitution then, as a feminist issue is subject to stereotypes, as it is as a kind of "scholarly subject" or as a moral issue.
Kate Millet in the "Prostitution Papers" stated, "Prostitution provokes gut-level feelings in women precisely because it reveals so starkly fundamental and tacit assumptions about women's relations in a patriarchal society. It reminds us that we are defined by our sexuality: i.e. wife, spinster, lesbian, whore; and it reminds us that most women are dependent on men for social survival and that most of us in one way or another secure our survival in exchange for the commodity that men want most from us. Feminists see this sexual objectification as dehumanizing and degrading — with the ultimate degradation experienced by women who sell their bodies to earn a living..." Prostitution becomes an uncomfortable issue not only for MP's, clergy, citizens, police, the political left etc., but for feminists as well. Many feminists feel that if historical and current sex roles are seen as oppressive, prostitution is the most oppressive sex role of all. However, the problem with this question is that, to a certain extent, it arrises out of a femrinist ideal rather than present reality. In initially thinking about prostitution, the earnest feminist envisions the best of all possible worlds. One where there is no sexual exploitation or no power hierarchy based on our sex roles. But this thought process does not provide any real answers to the fact that currently prostitutes are arrested and jailed. The current prostitution laws in Canada or the US favour the customers who in most cases are not even charged. The police agencies use dubious and illegal entrapments to arrest prostitutes, wholly ignoring the right to privacy.
The element of choice becomes obscured, not only by adherence to social ideals, utopic views and neglected realities but because very little research has been done on prostitution by women and without patriarchal bias. Available information tends to reflect the mores of the researchers. What must be done is that feminists and the left have to acknowledge that women do make choices to survive and that whether a woman chooses prostitution at one dollar a minute or that of clerk-typist at three dollars an hour our response must be consistent. With the best of intentions we can postulate on how we believe a woman's situation is discriminatory. We can work to gain legislation which will open up better options for women . This would make a woman's current role more bearable. And we should fight long and hard to make these changes. But when a woman decides we must not annul her choice. To do so is reverting to a paternalistic attitude and would in reality be an anti-feminist position. The issue of choice in prostitution is an understandably difficult yet important concept to accept. To view prostitution with "pity" is to negate prostitutes' individual self sufficiency and potential for power and change. This has been made clear in recent forums where prostitutes and feminists have spoken and worked together.
Prostitution asks that we consider prostitution beyond the boundaries of stereotypes. That realistic and comprehensive information be studied. That the issue not be reduced simply to avoid conflict.
ARGUMENTS OF THE PROSTITUTION RIGHTS MOVEMENT
The American Prostitutes' Rights Movement was begin by Margo St. James and others in California to protest the hypocrisy of laws that control female sexuality, particularly prostitution. COYOTE (Call off Your old Tired Ethics ) started as WHO (Whores, Housewives and Others) to develop a union of women — both prostitutes and feminists to fight for legal changes. The short term goals of COYOTE are decriminalizing prostitution, with the long term goals being to free women in their sexual roles. Margo St. James insists that COYOTE is not just an organization — "it's a political concept."
There are constitutional proportions to this Prostitutes' Rights Movement. These would be equal protection under the law, the right to individual privacy, free speech, the right to due process, freedom from cruel punishment, and the right to due process.
Current prostitution laws are under attack because they discriminate against women, especially poor women who tend to be the targets of all law enforcement activity. Also, poor and black women tend to be denied access to hotels, bars or apartment that cater to prostitution and are forced to work the streets where arrest rates are high. Poor women must then end up dealing with many of the street and criminal risks involved in prostitution, especially the prejudices of the police. Where there are no solicitation laws, police will arrest women on vagrancy or loitering laws.
Some courts consider prostitution to be a victimless crime, as is the case in Detroit where a traffic court judge has been letting prostitutes go free. Still, this means that the governmental bodies are regulating the behaviours of consenting adults — behaviours which are really private agreements. This control of private acts violates our right to privacy, as well as a human being's right to control his/her own body.
Because prostitution is a victimless crime, police have used entrapment to fulfill the law. Prostitution rights lawyers argue that court decisions regarding "a constitutionally protected zone of privacy surrounding areas of the body" (US Supreme Court) are precedent for removing prostitution's criminal stigma.
Equal protection under the law is raised because in many areas only the woman is identified as the law breaker. Thus, the Adam and Eve story is repeated in laws and their enforcement. Furthermore, this unequal enforcement has a lot to do with the fact that Canadian Parliament and US Congress are dominated by males.
Arguments against decriminalizing prostitution usually claim that "the moral climate of the community will be affected." Or, that "Prostitution will lead to other crimes and help proliferate them." However, research shows no clear-cut connection between prostitution and criminal behavior. The issue of change in community standards due to repeal of prostitution laws fails to take into consideration that sexual behaviour for money already exists in most communities and the customers taking part in this enterprise are in many cases the same individuals that run the communities.
Specifically, what is meant by prostitution decriminalization? Decriminalization takes prostitution from the jurisdiction of the criminal code. It means private sexual acts between consenting adults are placed outside the realm of criminal laws. It would essentially bring the informal practice of tolerance of sexual behaviour out in the open, without spending millions of dollars, endless energy prosecuting and incarcerating prostitutes.
Legalization, predominantly not favoured by prostitutes' rights advocates, is the governmental regulation of prostitution. The argument against this is that under legalization the state replaces the pimp and would collect a great deal of revenue from "the industry of sexual work." Legalization should be viewed as taking away the self control from prostitutes.
Decriminalization is the least restrictive alternative.