Legalizing Prostitution: From Illicit Vice to Lawful Business (15 page)

I maintain that it is farfetched to claim that state policy is wholly unrelated to the social organization of sex work and to participants’ lived experiences. Even if many actors operate outside the legal system (e.g., not registering, not paying taxes, avoiding mandatory health exams), it still makes a difference to them whether they are regarded as criminals or as legal actors with rights. And there
is
evidence, from various nations, that the type of policy regime can affect—positively or negatively—what happens on the ground, as the remainder of this book shows. Criminalizing clients in Sweden has had the effect of further endangering street prostitutes, who, because of increased policing, now must conclude their negotiations under duress and with less time to screen clients.
¹³
Outlawing indoor sex work in Rhode Island in 2009 resulted in closure of massage parlors, throwing a substantial number of women out of relatively safe workplaces into more dangerous venues (if they continued to sell sex). And an analysis of Australian policies concluded that “even very limited reform processes can open new possibilities for protecting the safety and rights of sex workers. There are clear benefits that flow to workers from the availability of more legal prostitution, the most obvious of which is having the right to work without the fear of legal penalties.”
¹⁴
Taken as a whole, the research on legal systems (past and present) suggests that prostitution
can
be organized in a way that is superior to blanket criminalization. At the same time, there is plenty of variation across legal systems in the nature of the regulations and their effects, both intended and unintended.

The remainder of this chapter outlines the central features of legal prostitution systems and then examines selected cases in order to highlight how they operate, the challenges they face, and what they tell us about prostitution when it is no longer illegal.
Chapters 5
and
6
extend this analysis with an in-depth examination of three additional cases.

Legalization
is defined here as
legislation that provides mechanisms for government regulation of paid sex transactions after prostitution has been decriminalized
. Regulation is what distinguishes legalization from simple decriminalization. Examples include the following: licensing of businesses, registration of workers, geographic restrictions (such as zoning in designated red-light districts or prohibitions near schools, churches, etc.), health requirements (e.g.,
mandatory condom use, periodic HIV and STD tests), age restrictions, and other rules for workers, managers, and clients. Prostitution is removed from the criminal law and regulated by civil law, yet the criminal law continues to apply to cases involving extortion, kidnapping, assault, rape, and other crimes.

States that liberalize their laws rarely decriminalize prostitution without coupling it with some kind of regulation. And those that simply decriminalize it without instituting safeguards put workers at risk. An extreme example of this is the city of Daulatoia in Bangladesh, where the authorities allow prostitutes to apply for “permission” to sell sex if they are over 18 years old but otherwise leave prostitution unregulated and the workers vulnerable to exploitation, abuse by madams, and violence from customers.
¹⁵
This case points to the need for government oversight, especially where workers are highly vulnerable to exploitation.

De jure legalization involves both decriminalization and at least some formal government regulation. Because legalization involves regulation, it is inevitable that some practices will remain prohibited while others are permitted. Legalization can thus take quite different forms, as a practice allowed in one place may be prohibited in another. Nevertheless, a common objective across legal systems is harm reduction.
¹⁶
A number of scholars and policymakers have come to the conclusion that legal regulation is superior to criminalization in reducing harms in sexual commerce. As one analyst writes, “An interest in reducing the internal and external harms associated with prostitution would seem to favor a legal and regulated commercial sex industry.”
¹⁷
Legalization may also have advantages over simple decriminalization in that the former involves greater control and thus offers both a practical and a symbolic dividend. State involvement in regulating vice can, over time, increase its legitimacy. The history of state regulation of gambling in the United States, as well as the more recent involvement of 15 states in regulating medical marijuana, arguably lends both of these practices greater credibility than when they were prohibited.

Recent polls, presented in
table 4.1
, show that majorities in several countries endorse legalization, either in the abstract or in the form of brothels. In France, a majority believes that legal brothels would make it easier to control prostitution and that the change would not lead to an increase in sexual commerce.
¹⁸
The majority supporting legalization in several other European nations contrasts with the United States, where the majority takes criminalization for granted, as shown in the previous chapter.

TABLE 4.1
Attitudes toward Legalization of Prostitution, Selected Nations

Sources:

1. ITV Poll, reported in Agence France Presse, November 16, 1998, N=2,000 (“legalizing and licensing brothels”).

2. IPSOS/MORI Poll, January 6-10, 2006, N=1,790 (“prostitution should be legalized”).

3. Compas Poll, Sun Media Newspapers, reported in Edmonton Sun, October 31, 1998, N=1,479 (“legal and tightly regulated”= 65%, “completely legal”= 6%).

4. IVVM poll, reported by Czech News Agency, National News Wire, April 26, 1999 (“legalizing prostitution”).

5. French poll reported in Boston Globe, January 22, 1995 (“legalized brothels”).

6. Dimap poll, 1999, cited in German government explanation of the prostitution bill that became law in 2002, Parliamentary Paper BT-Drs. 14/5958, May 8, 2001.

7. Jerusalem Post, July 19, 2005, N=500 (legalization of prostitution and licensing of prostitutes).

8. Dutch poll cited in Brants (1998) (“legalization of brothels”).

9. New Zealand Herald, May 14, 2003, N=500. “Don’t Know” responses removed from total (legal brothels).

10. Marketest poll of residents of Lisbon and Oporto, reported in Financial Times and Diario de Noticias, August 14, 2001 (“legal brothels”).

11. China Times poll, cited in The Straits Times, July 9, 2009. The reported results were 42% in favor of legalization and 39% opposed. Figure in table is converted to eliminate the “don’t know” responses.

12. Sunday Times poll, March 26, 2000 (legalization of brothels).

13. Poll reported in The West Australian, February 15, 2006 (legalization of prostitution).

A separate issue is whether prostitution is considered acceptable behavior. A recent poll reported that 59 percent of the British public believed that “prostitution is a perfectly reasonable choice that women should be free to make.”
¹⁹
(This tolerant attitude did not extend to family members, however, with 74 percent saying that it would be unacceptable for a female family member to work as a prostitute and 87 percent saying it would be unacceptable for a spouse or partner to pay a prostitute for sex.) The World Values Survey asks respondents whether they think “prostitution can always be justified, never be justified, or something in between.”
Table 4.2
reports “never justified” figures for a selection of nations. Here, we see that eastern Europe and nations where prostitution is criminalized (France, Italy, Sweden, United States) have larger proportions of their populations selecting the “never justified” option than do nations where prostitution is openly tolerated (Thailand) or legal (Australia, Germany, the Netherlands, New Zealand). Figures from the latter four countries range in the low to mid-20s, compared to 40 percent or more in eastern Europe, France, Italy, Sweden, and the United States. The exception here is Norway, ranking third in tolerance in 2007 but having followed Sweden in criminalizing the purchase of sex in 2009. In several other European nations, however, social tolerance and legal tolerance are in sync.

Some nations’ policies are located in a twilight zone—one where prostitution (or aspects of it) is
illegal but regulated by the authorities
. In such systems, as long as participants do not disturb public order or violate other laws and as long as they abide by whatever rules are imposed on them by the authorities, they are allowed to operate freely. In Western Australia, the police “license” brothels, periodically inspect them, and maintain a roster of brothel workers and owners (listing names, addresses, phone numbers, tax ID numbers), yet brothels remain illegal, and “the licensees are conscious that they still have criminal status.”
²⁰
De facto regulation currently exists in Antwerp and Brussels, Belgium, and was the practice in Germany, the Netherlands, and New Zealand prior to formal decriminalization. A policy of de facto legalization can be applied to other vices as well. In the Netherlands, for example, possession and sale of cannabis remains illegal but tolerated. In 1985, the Public Prosecutions Department imposed five rules on cafes that sell marijuana: no advertising, no sales to minors, no other drugs on the premises, no sales exceeding a certain limit per customer (30 grams initially, reduced to 5 grams in 1995), and responsibility for maintaining order in the
vicinity of their premises. Failure to comply can result in closure of the business. Subsequently, cannabis cafes were required to be licensed as well, which allows local authorities to restrict their number and location.
²¹
Drug sales remain illegal but are permitted and formally controlled by authorities who enforce these rules.

TABLE 4.2
Attitudes Regarding Acceptability of Prostitution, Selected Nations

Source:
The question asks “whether you think prostitution can always be justified, never be justified, or something in between,” and respondents record their view on a 10-point continuum. World Values Survey, conducted in 2005-2006 in all listed nations except New Zealand (2004) and Norway, Spain, Switzerland, and Thailand (2007). <
http://www.wvsevsdb.com/wvs/WVSAnalizeQuestion.jsp
>

Observers from outside these nations may have difficulty understanding how a vice can be both illegal and regulated by the government—seeing the notion of “de facto legalization” as a contradiction in terms. This is not a matter of a clash between national and local laws or policies (as is true for medical marijuana in the United States), nor is it the same as de facto decriminalization, which is simply nonenforcement of the law. Instead, de facto legalization involves
official regulation of illegal practices
and thus reflects a disjunction between the criminal law and
formal
policies and practices. Peculiar as it may seem, in those countries where de facto legalization exists, it is justified as a pragmatic alternative to both criminalization and de jure legalization.