Decriminalization vs. Legalization
August 26, 2008
There’s been a lot of discussion in a variety of different venues over the past several years with respect to legalizing prostitution to one degree or another. Just about everyone is familiar with the fact that prostitution is illegal in the U.S. with the exception of some places in Nevada. You may not be aware that the exchange of sex for money is legal in Rhode Island as well, though that is largely the result of a loophole in the state law outlawing prostitution at large (it specifically outlaws solicitation on the street and the operation of brothels, but makes no mention of the exchange of sex for money in a private setting, and therefore private prostitution is technically legal).
I’ve been involved in several raucous classroom discussions about whether or not sex in exchange for something of value ought to be legal, and some of them have involved very heated exchanges between those who favor legalization and those who believe it ought to remain illegal. In every one of those cases, believe it or not, the overwhelming majority of people in the class favored making it legal. And, interestingly, more women (in my classes) have been in favor of legalization than men.
There are two approaches to the legalization of prostitution that many people tend to conflate with one another, though the differences between the terminology of the two is mostly one of semantics. But many sex work advocacy organizations do differentiate between the two, and I am inclined to do as well to make the differences easier to discuss.
The first of these two approaches is legalization. Legalization, as it is used by most advocates involves making prostitution patently legal and developing a regulatory scheme to control and tax it. This is the way it is done in Nevada. Any county with a population of less than 400K (which is every county except for those where Las Vegas and Reno are located) is free to allow brothels to operate, and to set up rules and regulations to control how the brothels and those who work in them operate. And there are tons of rules governing everything from the licensing of the prostitutes to specific sex acts that are prohibited.
The other approach is known as decriminalization. This involves simply doing away with the statutes outlawing prostitution. This is the approach favored by most advocates because it removes the necessity of having the state act as a “pimp” and controlling or extorting money from individual sex workers (usually through requiring the purchase of expensive “licenses”). Technically speaking, the situation in Rhode Island is akin to decriminalization, albeit unintentionally. (To Rhode Island’s credit, though, the state legislature has resisted several attempts to close the loophole).
The major difference between the two is that with the latter there are no prostitution-specific regulations imposed by the state. Rather, regulation of the industry is accomplished primarily through existing statutes and regulations covering employment and public health (for example).
There are pros and cons to both approaches, and where you fall typically has something to do with the role you believe the government ought to play in prostitution. Many people believe government having any role at all infringes upon the rights of the workers to earn a living in a manner of their choosing, while there are others who see it as a legitimate role of government to ensure the integrity and safety of the work itself, those who perform it, and those who use its services.
I tend to believe that at least some modicum of regulation is necessary to ensure that the industry operates with minimal basic standards, to ensure the safety of the workers and their clients, and to allow the community to integrate sex work into the local economic infrastructure. I therefore favor some government regulatory role in prostitution. As much as those who think it should be totally unregulated would like to believe, any industry left unchecked will tend toward taking advantage of the workers and the clients by its nature, so I believe there is a need for at least a minimal involvement of the government in order to help keep things on the up and up.
So, given all of this, I was sitting around last night thinking about how I’d structure the regulation of the industry if I could design my own set of rules and regulations, and the following is what I came up with.
Alexa’s Model Prostitution Law
If I had to design my own laws regarding the legalization of prostitution, this is what I’d do. I know much of this disagrees with what many activists think ought to be done, but the purpose of my rules would be to make it safe and legal for them to work and ensure the safety and confidentiality of their clients.
Unlike many of the advocacy groups, I would not try to dispense with eons of stigmatization associated with sex work. While I believe that is a laudable goal, I don’t believe it is reasonable to expect to be able to do that in today’s society. Not at this point, at any rate. We certainly should strive for that, of course, but in the interim we need to approach this from a more practical perspective.
The first thing I’d do is remove all existing laws against prostitution from the books and start from scratch, with the exception of those involving the trafficking of humans (and make those applicable to all forms of human trafficking, not just sex workers). It would remain illegal to force or coerce anyone into working in prostitution, or to employ anyone under the age of 18 as a prostitute, or to work as a prostitute if you’re under the age of 18. Some might advocate for an age of 21, but I know many women who’ve worked as prostitutes to put themselves through college and it simply isn’t necessary to force them to wait until they’re 21 to do that. They can get any other job at 18, so prostitution should be just as much a solution for them as anything else.
Now for the specifics:
Streetwalking and solicitation would remain illegal. There are two significant reasons why I believe this should continue to be illegal. There are are a variety of safety issues involved, especially with respect to the sex workers themselves. Streetwalkers are many times more likely to be raped or killed than any other category of sex worker. Working from the street is about as unsafe as you can get in this industry, in fact. Many of the advocate groups claim this is the result of the fact that prostitution is illegal to begin with, but any time you get into random vehicles with strangers, you run the risk of being abducted, beaten, raped, and possibly killed, whether what you’re doing is legal or not.
The second reason involves quality of life issues in neighborhoods. While I think you should be free to engage in your chosen line of work wherever you wish, I don’t think it is unreasonable for neighborhoods to not want prostitutes on their streets. Removing the criminalization of streetwalking would allow prostitutes to set up shop in any neighborhood they wish.
I just can’t see any rational basis for legalizing street-based solicitation, in all actuality. If anyone can offer a coherent reason to do so, I’d sure be interested to hear it. I have seen advocacy groups openly suggest making street walking legal, but I don’t think you stand even the remotest of chance of getting something like that passed. Ever. The exchange of sex for money should take place indoors, in private, between consenting adults.
What would I do with those arrested on the street? Well, that’s a good question. I don’t know for sure, but I wouldn’t treat them like the criminal justice system does now. See my point below about creating programs to get prostitutes out of the business - maybe that would be a solution.
Jurisdictions would be prohibited from requiring “registration” or “licensing” of prostitutes. There’s no legitimate reason for this. Requiring sex workers to register puts their name in public records as being involved in sex work. For many, it is a private matter and they ought not be required to put this kind of personal information out there for future employers, pervs, lawyers, and anyone else with an agenda to be able to get a hold of. Being labeled a sex worker also carries restrictions with respect to subjects like international travel (some countries refuse to permit sex workers to enter), for example. The only legitimate reason one could argue for doing this would be to ensure medical testing is accomplished, and I’ll address that in a minute.
There is an argument that it is a good idea to do background checks. Why? Why would it be a problem for someone with say, a shoplifting charge, or even a robbery charge on their record to be a prostitute? Why would that be any more of a problem than any other personal service worker having a similar record (and for whom we don’t require background checks)? I believe the Nevada law even prohibits someone who’s been convicted of prostitution from becoming a prostitute. There’s some logic for you. I do think it would be a good idea to prohibit anyone whose been convicted of any type of organized crime or public corruption from owning or operating brothels or working as agents for sex workers, though.
Regardless, if the legislature sees some need to prohibit someone with a particular crime in their background from engaging in prostitution, make it a crime to do so. If they get caught prostituting with this in their background, then they can be charged with some violation of that law. There’s no reason for local law enforcement to extort money from sex workers in the name of “licensing” them. I’d have no problem with jurisdictions requiring prostitutes to have a standard business license if A) they require all other self-employed, personal-service individuals to have them, and B) they don’t set “special” (read: high) rates for prostitutes.
Prostitutes would be prohibited from seeing more than one, perhaps two, clients at a residence, either a house in a residential neighborhood, apartment, condo, etc. Neighborhoods have the right to ensure the value of the housing remains stable, and that a suitable climate to raise a family is maintained. Having a lot of traffic would draw attention to the fact that someone was seeing a lot of people, result in traffic and congestion problems, etc. Like it or not, having a de facto brothel in a neighborhood does bring down property values and negatively impacts the quality of life in those neighborhoods from a variety of standpoints. Therefore, if a prostitute was going to see client in his/her own home (incalls), then s/he could see no more than one or two in any 24 hour period under my plan. The option for outcalls is there, as would be renting/leasing space in brothels or other facilities in areas zoned to allow prostitution (see below).
Prostitutes would not be required to work in brothels. Nevada requires all prostitutes to work in brothels, and while I’ve spoken with some prostitutes who are okay with that, Amanda’s experience clearly shows that it is not necessarily the best environment for every sex worker. Certainly it should be an option, but many sex workers don’t want to work in this type of restrictive environment and shouldn’t have to give up that much of their freedom just to be able to earn a living.
Brothels cannot be zoned completely out of any city over a certain population. They could be restricted to commercial or industrial areas if necessary, but allowing individual large cities to simply zone them out of existence would be disallowed. I don’t necessarily have a specific population in mind, but something on the order of the largest cities within the state would require brothels that otherwise operated within the law be allowed to operate unmolested by local law enforcement and other officials. Law enforcement and public health agencies would have the right to inspect the facilities to ensure no one was working illegally and that all relevant health codes were being followed, of course. Jurisdictions would have the right to set reasonable health codes/practices for brothels if they so desire, and perhaps reasonable restrictions on the size or number of employees of brothels in any given zoning class. Local jurisdictions would have no zoning or land use regulatory authority over individual sex workers, however.
The state or local jurisdictions could not legislate or outlaw specific practices. The specific activities that take place between two consenting individuals should be left to them, and the government has no business deciding what these two people should do in the privacy of their own sexual relationship, even if it is one revolving around a financial transaction, so long as both parties are amenable to it (see the point on contracts below). This includes anal sex, BDSM activities, or any other activity that is legal between consenting adults who are in any other type of relationship.
There could be no children or minors in any place where prostitution was being practiced. This applies largely to individual houses and other residences. While it may be permissible to practice prostitution in one’s own residence, doing so with children or other minors in the place would be a crime. I know this would present a hardship for the single mother who’s trying to make ends meet and take care of her children, but kids should not be exposed to this kind of activity at all. Anyone found prostituting a child would face felony charges, as well the likely loss of custody of their children.
Written contracts would be required between the prostitute and the client. This contract would be executed at the beginning of the transaction, and would specify exactly what services the prostitute is prepared to offer, for how much, and for what time period. Further, it’d require the client to certify that s/he understands what the words “no” and “stop” mean, and the prostitute’s safe/stop words and that failure to honor those at any point during the transaction, might result in a charge of rape. Law enforcement and the judicial system would be required to treat any such claim of rape as legitimate until it was determined to be otherwise.
Prostitutes would be required to be tested periodically, perhaps once or twice a month. I know a lot of activists don’t like this at all, but I think the government has a compelling interest in preventing the transfer of STDs. The reason no transmission of STDs has been documented between prostitutes and clients in Nevada is because the law requires the prostitutes be tested every week. I would require public health departments to perform the testing and to do so anonymously, just like HIV testing has been done for years. The prostitutes would be required to show their latest test results to any client who requested to see them (as well as local public health officials), and if the prostitute knowingly saw clients without full disclosure after a positive result before the disease was remediated, s/he’d be charged with some type of assault. If the state’s laws did not already address this type of assault specifically, they’d need to be modified to do so. Note that I didn’t say that prostitutes wouldn’t be allowed to see clients if they were infected - there are plenty of things sex workers can do that don’t involve the exchange of bodily fluids or otherwise present a risk for infection. The problem comes in when the infection isn’t disclosed - then it becomes an issue.
And yes, I realize that prostitutes only account for about 2-3% of all STD transmissions. And I know that, in some cases, the latency time between infection and detectability makes tests a less than 100% reliable indicator. I don’t believe that should preclude using as many reasonable safety mechanisms as possible, however.
What about testing of the clients, you say? As soon a someone shows me a legitimate, logistically feasible way to test clients on such a massive scale, I’d be happy to entertain that requirement as well. As of now, it just isn’t feasible to require STD testing of all clients.
Well, you say, we don’t require food workers to be tested for things like Hepatitis, which infects a great many people each year. Perhaps we should. The fact of the matter is that Hepatitis and other non-STD infections are not considered “private” or stigmatized diseases and there’s a lot of publicity associated with them when an outbreak occurs. STDs are stigmatized diseases and not discussed openly as a general rule, so there isn’t the kind of public attention paid to them that we see with food-borne illnesses or other human-borne infectious diseases. Therefore, the best way I see to mitigate the potential for infection transfer is to require workers to be tested. I personally get tested once a month on my own anyway, and I don’t see that as intrusive at all. In fact, I see it as a very responsible thing to do for myself and my clients.
Some have asserted that a clean test might lead to clients pressuring workers for bareback sex, and I agree, that is certainly a potential. I think this is a point that must be negotiated between the worker and the client as a part of the contract process. If the contract stated that protection must be used and the client attempts or performs sex without one, then he’s violated the contract and would be guilty of a sexual assault (or whatever crime the state elected to define it as). And, for the record, I am not in favor of mandated condom use - I think that should be between the worker and the client, and if both can establish that they’re clean and want to have condom-free sex, then that should be their prerogative.
Prostitutes would be required to keep records of their clients. These records would be confidential and be available to law enforcement only with a subpoena during criminal investigations, and public health officials when tracking down STD infections. Tax officials might also have access to these to ensure workers were paying their fair share of taxes.
Services/Agencies would be prohibited from charging the prostitute more than 25% of the client’s fee for their services. While I personally think pimping ought to be wholly illegal, I recognize that many prostitutes will not/could not work independently and would prefer to have a service arrange the scheduling and so forth. With the work no longer being illegal, there wouldn’t be quite the number of risk factors the agency would need to mitigate (i.e., vetting for law enforcement, etc.). The agency would largely be functioning only as a booking agent for the prostitute, so the days of the 40-50% fee share would be gone. Agencies of a certain size would be required to provide some form of health insurance and other benefits to its workers, contract or otherwise. Agencies would be required to disclose any unique problems or issues a particular client exhibited that might impact the sex worker so that situations like THIS could be avoided. Failure to do so would subject the agency to liability for damages.
Offer economic incentives for groups of individuals to form co-operative brothels. This is an idea I got from reading Amanda’s writing, and something that a group of sex workers are trying to implement in time for the Olympics in Vancouver, Canada. The sex workers themselves would own and operate the brothel, they’d share in the costs required to operate it, and the profits would be split among them, not a pimp or an absentee owner. I’d try to find a way to provide some form of tax break or other economic incentive to encourage this kind of cooperative effort.
Public services and appurtenances, including social services agencies, public health and welfare agencies, workers compensation laws, discrimination laws, legal services, safe workplace rules, etc., would apply to sex work just as they do any other service job. All public sector agencies would be required to treat sex workers with the same respect and dignity afforded to any other class of worker, and extend all rights, benefits and privileges associated with their functions to sex workers just as they would any other class of worker, including the right to sue, the right to petition for redress, to file discrimination suits, etc. Health and medical professionals would be prohibited from refusing to treat sex workers because of their work, all other things being equal. Insurance companies would be prevented from charging sex workers significantly higher rates unless they can definitively show a higher degree of risk based on job description.
Create community-based programs to help sex workers leave the field when they’re ready. I’d probably fund this through some sort of tax on the client, but the funds would go to community-based organizations that work to help sex workers leave the industry, regardless of how they got in, why they wish to get out, or which strata they occupy.
So that pretty much wraps up what I’d consider doing if it were up to me. I do believe that this represents a fairly middle-of-the-road approach to it, and I’d be interested in any thoughts, ideas, comments, or suggestions you guys might have.
Posted by Alexa | Filed Under Sexuality, Work
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26 Responses to “Decriminalization vs. Legalization”
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Interesting analysis. I know this is largely off the cuff thinking of what an ideal policy would be but assuming you wanted some feedback here are some similar off the cuff thoughts in response:
(1) streetwalking
Tough to argue it should be legal. But if I had to take a shot, (a) criminalizing it doesn’t really alleviate any of the negatives of streetwalking but at the same time punishes those you’re ostensibly trying to help and makes them more vulnerable to predatory behavior (as alluded to in your post), sure the punishment in your scenario involves some sort of service akin to a drug clinic but nonetheless you’re maintaining its status as other a criminal or at least civil offense; (b) why should prostitution (if we view it absent a particular moral viewpoint) be in a unique category subject to special prosecution outside of restrictions given to other commercial activities carried out on the street?
(2) Registration and licensing
As someone who had to undergo a painful licensing process that involved background checks all involving exorbitant fees I’m sympathetic to your argument. That being said, these are the type of arguments I can hear people saying
(a) Why is it a private matter? If we take prostitution to be a legitimate profession, why does prostitution become exempt? We make people who cut hair, accountants, lawyers, doctors, insurance agents, etc. all meet certain licensing requirements. Even the jobs that don’t have such requirements aren’t exempt from them, we’ve simply chosen not to do impose such requirements. Why does prostitution, taken as a neutral commercial activity get a special pass from such regulation?
(b) One justification for not just why shouldn’t we impose such a requirement by why we should is the medical justification you mentioned. I’m a little perplexed by your requirement for regular testing and mandatory maintenance of health records. How can these be enforced outside of a licensing mechanism? How can we ensure there is regular testing if we have no record of who is subject to the testing requirement? Unless there’s a complaint filed by someone, how would the authorities know who must maintain and failed to maintain health records?
(c) a second justification is a consumer based justification, we require certain licensing for certain services, to make sure the consumer is assured a certain level of quality. A licensing requirement could provide some assurance to a consumer that the licensed provider met some health requirement or knowledge requirement (probably something like this person has demonstrated X level of knowledge relating to sex health/safety) or something else that would otherwise be difficult for consumers to be aware of.
(d) a third justification would be a provider focused one. Licensing is required for a providers own good because it makes sure they comply with certain educational, safety, etc. requirements that is in their best interest and they wouldn’t do it (at least not enough of them would) absent a licensing requirement. It’s a very nanny state justification (as the one above) but it’s similar to the requirements we impose on other activities where for a person’s own good we make them meet certain requirements (and charge them for it).
(3) Restrictions on the number of clients that could be seen, the de facto brothel issue.
(a) certainly there are the issues of traffic, congestion, etc. but why impose a special requirement on prostitution? Certainly a variety of other home based businesses create similar problems. If these issues are problematic what justifies a prostitution specific restriction? Sure prostitution may decrease home values, but so do obnoxious neighbors.
(4) The state or local gov’t could not impose restrictions on practices.
Setting aside the issues of federalism and all that, why shouldn’t state and local gov’ts be able to impose restrictions which they deem unsafe or otherwise problematic? We impose restrictions on other businesses that restrict the manner in which they can provide services (rules regarding helmets, procedures, etc.) even if both parties completely consent to the transaction. What justifies an exemption from such restrictions on prostitution?
(5) Your contractual requirement seems problematic.
(a) What would be the enforcement mechanism for the contract requirement? Absent a licensing or some other registration process allowing you to check up on people, how could you possibly know who wasn’t complying?
(6) How can a restriction on the percentage claimed by agencies be justified and why should pimping be wholly illegal? By this I mean, if we look at prostitution neutrally, why should the state have any say in the commercial transaction between a prostitute and an agency? We don’t impose these type of restrictions on sports agents, modeling agencies, talent agents, band managers, etc. Why prostitution?
Essentially a lot of these arguments are about why we should treat prostitution different from other commercial activities when we start with the assumption that prostition is neither morally deficient or superior to other services people provide.
Thanks for the questions, e. Let’s see if I can do them justice. If we took the approach advocated in most of your questions, it’d move us from simple decriminalization into the realm of legalization as was defined in my original post. My objective is to minimize the government’s role in it altogether, while maintaining some basic measure of safety and protection for the workers primarily, but the clients as well.
1(a) criminalizing it doesn’t really alleviate any of the negatives of streetwalking but at the same time punishes those you’re ostensibly trying to help and makes them more vulnerable to predatory behavior (as alluded to in your post), sure the punishment in your scenario involves some sort of service akin to a drug clinic but nonetheless you’re maintaining its status as other a criminal or at least civil offense; (b) why should prostitution (if we view it absent a particular moral viewpoint) be in a unique category subject to special prosecution outside of restrictions given to other commercial activities carried out on the street?
As I said in the piece, there are huge safety issues associated with streetwalking, and there are neighborhood quality of life issues that revolve around prostitution that you don’t find with other street-based commercial activities. And actually, with the exception of heavily commercialized areas (downtowns, for example), there are very few “street” based commercial activities approved in any neighborhood. There are a great many activities that are outlawed when performed on the street vs. performed in a private setting, specifically because of safety issues and issues associated with a “livable” neighborhood. This would be no different.
Further, by maintaining the criminal status of streetwalking while decriminalizing other forms of prostitution you would, at least in theory, encourage the workers to engage in the legal forms of the work. I realize that some would still work the streets (for a variety of reasons), but decriminalizing it would actually encourage many more to engage in streetwalking in all likelihood.
(2)(a) Why is it a private matter? If we take prostitution to be a legitimate profession, why does prostitution become exempt? We make people who cut hair, accountants, lawyers, doctors, insurance agents, etc. all meet certain licensing requirements.
How could you make a rational argument that it isn’t a private matter (unless one is doing it in public)? I’m not advocating that the government christen it or treat it as a “legitimate” profession, but rather to decriminalize what is for all intents and purposes a personal, private transaction, just as would be the case with the exchange of any other transaction involving money between two private individuals. We don’t regulate or outlaw them, outside of criminalizing fraud or providing legal recourse for violations of the agreement, and those remedies would be applicable to my scenario.
Even the jobs that don’t have such requirements aren’t exempt from them, we’ve simply chosen not to do impose such requirements.
I’m not sure what you mean here. That statement contradicts itself – by virtue of the fact that we’ve chosen not to impose requirements, they are exempt. If you wish to reframe this question, I’ll try to address it more appropriately?
(b) I’m a little perplexed by your requirement for regular testing and mandatory maintenance of health records. How can these be enforced outside of a licensing mechanism? How can we ensure there is regular testing if we have no record of who is subject to the testing requirement? Unless there’s a complaint filed by someone, how would the authorities know who must maintain and failed to maintain health records?
That’s just it, you wouldn’t know unless a complaint was filed. Why would you need to know before then? Since this is a private transaction, there would be no problem unless and until there was a report of an infection, and, ostensibly, the client would be the one reporting the infection. Assuming s/he’d know who s/he’d been with (which provider(s)), the public health officials can go to that provider and check his/her results, and can follow up with other clients the provider has seen based on the records s/he’d be required to keep. If the provider hasn’t kept up with the obligation to be tested and/or maintain appropriate records, s/he can be penalized accordingly at that point.
We don’t license food workers, yet when there is an outbreak or an infection (reported by a customer or a hospital, typically), the health authorities are usually able to go back and track down the infected parties relatively easy. Rather than just assume that sex workers are disease-carriers (they’re not, by default), treat them as you do any other worker with the potential for health implications – we don’t license them and only react once something occurs. I see no reason why a similar model couldn’t work with prostitution. My rationale behind the requirement is more for the worker’s protection than the client’s to begin with, by the way.
(c) a second justification is a consumer based justification, we require certain licensing for certain services, to make sure the consumer is assured a certain level of quality. A licensing requirement could provide some assurance to a consumer that the licensed provider met some health requirement or knowledge requirement (probably something like this person has demonstrated X level of knowledge relating to sex health/safety) or something else that would otherwise be difficult for consumers to be aware of.
Again, we’re talking about a personal, private transaction between two individuals. The state has no business determining the appropriate “level of quality” in these kinds of situations – that’s for the individuals involved to decide. The contract I referenced would allow the parties to come to a mutual agreement about what constitutes an appropriate level of service with respect to that particular transaction and could be enforced just like any other service contract.
Sex is a highly individualized experience and the satisfaction derived from the exchange is entirely subjective, so there’d be no way for the government to ascertain what would constitute an appropriate “level of quality” to begin with. I address the sex health/safety issue in the next point.
(d) a third justification would be a provider focused one. Licensing is required for a providers own good because it makes sure they comply with certain educational, safety, etc. requirements that is in their best interest and they wouldn’t do it (at least not enough of them would) absent a licensing requirement. It’s a very nanny state justification (as the one above) but it’s similar to the requirements we impose on other activities where for a person’s own good we make them meet certain requirements (and charge them for it).
You could, of course, make a rational argument for requiring providers to attend safe sex courses (and I don’t really have a problem with that – I kind of like that, in fact), but you don’t need to license them to implement that. Simply require it in the legislation and if they are found to be practicing prostitution without having attended the course, penalize them accordingly at that point.
It occurs to me that some industry group (like SWOP or similar organization) might even develop an educational program and perhaps a certification process that would be voluntary. The providers who complete the requirements and become certified could use that as a marketing tool.
(3)(a) certainly there are the issues of traffic, congestion, etc. but why impose a special requirement on prostitution? Certainly a variety of other home based businesses create similar problems. If these issues are problematic what justifies a prostitution specific restriction? Sure prostitution may decrease home values, but so do obnoxious neighbors.
As I mentioned in my original piece, prostitution carries with it certain neighborhood quality of life issues, love it or not. If someone has a woodworking business or a business selling Avon products in a residential area, people don’t have a problem telling their children what’s going on there, for example. And most home-based businesses don’t generate the kind of traffic that prostitution has the potential to generate if a provider is seeing multiple clients a day (i.e., daily, almost continuous traffic perhaps). As for obnoxious neighbors, they can be dealt with through existing code enforcement or other legal means if necessary, and very rarely does an obnoxious neighbor directly affect property values in and of himself/herself.
(4) The state or local gov’t could not impose restrictions on practices. Setting aside the issues of federalism and all that, why shouldn’t state and local gov’ts be able to impose restrictions which they deem unsafe or otherwise problematic? We impose restrictions on other businesses that restrict the manner in which they can provide services (rules regarding helmets, procedures, etc.) even if both parties completely consent to the transaction. What justifies an exemption from such restrictions on prostitution?
In order to be justifiable, there has to be some compelling reason for the government to restrict the private activities between two individuals. Since the courts have ruled that private, consensual sexual conduct cannot be restricted by the government (Lawrence v. Texas), I see no reason why the government should be allowed to impose restrictions on it simply because money is exchanged. What we have right now is de facto restriction on private sexual conduct by outlawing it altogether (which, in fact, is being used to challenge anti-prostitution laws in a couple of places. Stay tuned). The government can’t even restrict commercial business practices without some compelling reason to do so.
And, again, my objective here is decriminalization, not legalization. If you’re going to regulate the activity that heavily, you’re moving toward the legalization model.
(5)(a) What would be the enforcement mechanism for the contract requirement? Absent a licensing or some other registration process allowing you to check up on people, how could you possibly know who wasn’t complying?
You’d have the same enforcement mechanism as you would with any other contract – the legal system. We don’t license private individuals in any manner, yet we recognize as valid any legitimate contract executed between those individuals. A contract between any two people is valid regardless of whether they are “registered” for anything or not. If one party to the contract is aggrieved in any way, s/he can pursue legal action against the offending party. The state isn’t a party to the contract and has no need to know who is or isn’t complying absent a claim that one party has violated it.
(6) How can a restriction on the percentage claimed by agencies be justified and why should pimping be wholly illegal? By this I mean, if we look at prostitution neutrally, why should the state have any say in the commercial transaction between a prostitute and an agency? We don’t impose these type of restrictions on sports agents, modeling agencies, talent agents, band managers, etc. Why prostitution?
Admittedly, this is the regulation that provides me with the most inner conflict, since I’d prefer to allow market forces dictate what agencies could charge. The intent here is to keep the agency from taking advantage of the prostitute, and taking half of the client’s fee for simply verifying someone’s identity and booking an appointment doesn’t warrant a 50% share of the fee. That is unjustified in my opinion, and while some workers would be able to switch agencies, there’d be nothing to preclude the agencies from penalizing workers who elected to do so. In all honesty, as I said, this one gives me pause. I could be convinced to see how the market works with respect to this, however, and not regulate it to begin with to see how things shake out.
As for pimping specifically, I take issue with the current way the laws are structured with respect to outlawing the use of “proceeds from prostitution.” Providers ought to be able to use their money however they wish, including providing it to family members, friends, people who help them in some way, etc., without those people being considered criminals. My intent is to prohibit the coercive behavior that is stereotypically associated with pimping (which occurs with some agencies under the current system as well, I might add).
Thanks for asking the questions and giving me the opportunity to respond. Feel free to jump off anything I’ve said here and ask for clarification or even bring up more issues.
Extremely well thought-out and articulately explained; why can’t our lawmakers be as clear-thinking on this subject?
wow.
that covered a lot. i dont think i know anyone that could come up with such a complete set of laws for something like that. i especially like how you mentioned they need to be tested often. thats a big thing i worry about, even just among the people ive been with.
you should send that out and try to make it happen.
Well, I for one would greatly fear any kind of statute/regulation/the like that would eminate from our gang of idiots in Sacramento. Probably far safer to just let it remain illegal, and be smart about it.
If you want to kill something, subject it to regulation.
[...] spent a couple of days working on my post about decriminalizing prostitution. If you haven’t read it yet, please do so and let me know your thoughts - I am genuinely [...]
I think it should be decriminalized period where the most LE does is charge you with a violation, infraction or summary offense which is less than a misdemeanor therefore not a crime no arrest record no fingerprints. The exception would be if a trick solicits unprotected sex or a prostitute solicits unprotected sex such as bbbj or bareback anything then they could arrest them and charge them with a misdemeanor call it commercial sexual endangerment. Street prostitution same thing but have red light zones during certain hours. If a girl is outside of the zone and she is blatant and obvious keep it an infraction ticket but you can detain them till say 9am and they know the “track” is closed. Also no jumping in and out of tricks cars a trick can go to the short stay hotel with the girl. Better to pay a couple of non-crime infraction tickets a year than have a bunch of regulations with legalization and paying a ton of taxes. You will always have Pimps, agents are not Pimps. Pimps have a personal relationship with Hookers and a business one. Some women need them some want them some don’t. It is almost like being married and being in a family business. We need to self regulate. I think some agents are good and if a agent charges 1000 to 2000 for a 2 hour date and you get 60% which is 600-1200 plus a 200 to 500 tip what is wrong with that. Some agencies will pay a top notch veteren provider 70% not bad plus all tips are yours. Then when you get a date on your own keep the same price range may-be a few dollars cheaper. Tricks like indies because they are cheaper in a lot of cases because the trick feels there is no middleman. Clients/tricks should not be privey to what a agency gets if anything they should think it is no more than 10-15% this way when you get a date on your own the client won’t try to cut and haggle the going agency price in half may-be 10-20% less at the most. The going agency price will be the going price period. This way a girl can work with agencies and still get her own clients. Decriminalize it I say and most important the people in the biz have to set high platinum standards for prostitutes, pimps, agencies, agents, madams, incall/brothel owners so everyone can co-exist peacefully, make plenty of green and live happily ever after!! Also agencies, madams and pimps if busted would get infraction tickets too but have to pay way bigger fines providing there is no trafficking, coercion, violence, minors or force involved.
No surprise that your essay is well-conceived and well-written. However, given the political climate in the country, it is impossible to do on any grand scale. Vegas–Yes, San Fran–Yes, almost anywhere else, No. It’s just like the simple anti-sodomy laws that have been held unconstitutional yet are still on the books. No one is going to propose to de-criminalize it, despite any number of rational arguments for it.
More thoughts later. But bravo for a great essay.
Mandatory disease testing just reinforces stigma, especially since clients are let off the hook. IF a sex worker has a disease, she got it from a client and he takes it into the general population. Don’t reinforce the stigma of sex workers.
Don’t micro-manage her business either. Sex workers should be allowed to see however many clients a day she wants to see.
Keeping street work illegal allows harm to continue. No one likes street workers — except the men who keep them in business. Legal brothels might be an answer to getting the girls off the street. Or a red-light district like Amsterdam is trying to get rid of.
Though I like the idea of keeping client-records and requiring a contract between sex worker and client, with proper decrim, both parties will have consumer/worker protections under the law automatically. Record-keeping and contracts will be unneccessary.
I hope, with proper decriminalization, that professional guilds will form. That will do a lot of self-regulating right there.
You really need to check out what New Zealand has done. It’s arguably the best solution on the planet. (Yes, I will be checking it out personally at some point in the future.)
XX
Amanda, thanks for stopping by. I was curious as to what you’d have to say about this.
Sex workers should be allowed to see however many clients a day she wants to see.
If you allow a worker to see as many clients as s/he wants in a private residence, you’re going to have whole neighborhoods revolting against the worker. I don’t think you want that. My proposal for limiting it was to allow workers to operate from their houses without causing a problem. By seeing just one or two, she can operate in the vast majority of cases without the neighbors even knowing what is going on.
Keeping street work illegal allows harm to continue. No one likes street workers — except the men who keep them in business. Legal brothels might be an answer to getting the girls off the street. Or a red-light district like Amsterdam is trying to get rid of.
I did include brothels, and that should definitely be an option. You and I both know that no neighborhood is going to willingly allow streetwalkers, though. Red light districts would be an option, but you and I also know that those would only be allowed in industrial areas - areas in which security would be even more of a concern than what they operate under now.
Though I like the idea of keeping client-records and requiring a contract between sex worker and client, with proper decrim, both parties will have consumer/worker protections under the law automatically. Record-keeping and contracts will be unneccessary.
My reasoning behind that was because of the he-said, she-said that goes on when a sex worker is raped, and in the absence of some kind of documentation as to what was agreed upon, there’s nothing to give the worker the “credence” to bolster his/her case. I still think the record keeping is necessary to be able to track down clients in the case of a health situation and for tax purposes.
I am familiar with the NZ model, but I think some of what they’ve done would not work in the U.S.
Ron,
However, given the political climate in the country, it is impossible to do on any grand scale. Vegas–Yes, San Fran–Yes, almost anywhere else, No.
I don’t disagree with you, but I think my proposal would stand more of a chance than just outright decriminalization, and most activists and sex workers are against all of the regulation that goes along with legalization. I’ve tried to strike a balance.
It’s just like the simple anti-sodomy laws that have been held unconstitutional yet are still on the books. No one is going to propose to de-criminalize it, despite any number of rational arguments for it.
True, but those laws are wholly unenforceable now.
NZ sex workers have successfully prosecuted clients w/o an agreement. Because of the nature of their decrim, the sex worker and client operate under normal business laws. Record-keeping is not needed.
I think this is an advantage for clients more than girls. Of course, we both know smart girls will keep records anyway, even if no contracts are signed.
Something must be done for street workers. A solution has to be found. The best input would be from the street workers themselves.
Though a neighborhood might not like a girl who is busy, legally limiting her business is not feasible. I don’t know how NZ does it, but obviously they manage. Girls can even share a residence without it being a brothel.
Having just come from an overly-regulated environment, I chafe at the idea of continually working under heavy regulations. Worker rights should be protected, but their business does not need to be managed to the tiniest detail.
There’s no need to feel the need to tread a line between legalization and decrim. There’s no reason for sex work to be any more regulated than dating. Marriage is less regulated than what you propose here and it changes lives more than sex work. For the sake of argument this is interesting. Actually living and working under these rules? No.
XX
Amanda,
Something must be done for street workers. A solution has to be found. The best input would be from the street workers themselves.
I definitely agree with that.
Though a neighborhood might not like a girl who is busy, legally limiting her business is not feasible.
Why is it not feasible?
I don’t know how NZ does it, but obviously they manage. Girls can even share a residence without it being a brothel.
Individual towns are allowed to set restrictions on whether or not sex workers can work out of residences and set restrictions on how they operate there (and some do set restrictions on how much traffic can be handled, etc.). My proposal would make it uniform and not allow individual cities/counties to dictate restrictions.
In NZ, up to 4 workers can share a facility without it being declared a brothel (and restricted as such) provided they are each in control of their own earnings, schedule, etc. And, like my proposal, cities cannot ban brothels, but can zone them into specific areas.
Interestingly by the way, it is perfectly legal for someone under 18 to engage in sex work in NZ. You can’t hire someone who’s under 18, but you can work for yourself as a sex worker in NZ regardless of how old you are. Clients can be charged with a crime for hiring someone under 18, too. I like that, and I’d add that to my list to help keep underage workers from being treated as criminals.
There are a good many things in the NZ legislation that would work in the U.S., many things that wouldn’t, simply because of the disparity in cultures.
Also, I know you are planning on going to NZ to give it a shot. Keep in mind that to work legally as a sex worker in NZ you have to be a citizen. If they discover you are coming to NZ to do sex work, they can deny your entry.
Marriage is less regulated than what you propose here and it changes lives more than sex work.
Why would you compare prostitution to marriage? That’s an entirely different situation, though. Sex work is commercial enterprise and has to be compared with other commercial enterprises, not lifestyles or inter-personal relationships.
I often compare marriage to sex work because there are a lot of similiarities — at least from the perspective of a sex worker :) I’m aware society in general doesn’t often see the simliarities.
Zoning isn’t a perfect solution, but it’s a better one than regulating how many clients a girl can see per day. That’s regulating income. Not going to be a popular option. How exactly do they monitor a sex worker’s daily traffic?
Sure, NZ society is different from the US, but I still think some of their ideas can translate.
I’m well aware that on my upcoming travels I’ll probably be working illegally in a lot of places. This means I won’t quite experience what the natives experience, but I’ll still get some simliar experiences, hopefully without getting thrown in jail (deported I can handle). And, as an added bonus, I get the illegal migrant experience!
XX
Not going to be a popular option.
When compared to the option of not being able to work out of your house at all (which would be the most viable option in every neighborhood, since they’re not going to want all of that traffic and “the whores” there), it is the better of the two.
How exactly do they monitor a sex worker’s daily traffic?
They wouldn’t/don’t, unless someone complains. Then they (law enforcement) can either check records or surveil the house and go from there.
And, as an added bonus, I get the illegal migrant experience!
Good luck with it, regardless of how it turns out.
Without occupying too much of either of our time l think you make some good points which should be addressed (I don’t have time to address everything):
“How could you make a rational argument that it isn’t a private matter (unless one is doing it in public)? I’m not advocating that the government christen it or treat it as a “legitimate” profession, but rather to decriminalize what is for all intents and purposes a personal, private transaction, just as would be the case with the exchange of any other transaction involving money between two private individuals. We don’t regulate or outlaw them, outside of criminalizing fraud or providing legal recourse for violations of the agreement, and those remedies would be applicable to my scenario.”
Response: Many, many transactions are personal in nature, just because it involves sex, does not I think make it more personal than other activities we regulate heavily. Activities between me and a doctor, therapist, lawyer all seem at least as personal if not more personal than a transaction with a prostitute but those professions are covered by a fair amount of regulation. You say you just want decriminalization and not necessarily recognition as a “legitimate” profession, but if a profession is not illegal, in what way is the gov’t not recognizing it as a “legitimate” profession?
“Even the jobs that don’t have such requirements aren’t exempt from them, we’ve simply chosen not to do impose such requirements.
I’m not sure what you mean here. That statement contradicts itself – by virtue of the fact that we’ve chosen not to impose requirements, they are exempt. If you wish to reframe this question, I’ll try to address it more appropriately?”
Response: Because we have not regulated something does not mean we have made it exempt from such regulation. Not banning talking on a cell phone while in a car did not make such activity exempt from such regulation, regulation could and did happen at any time. Rather we just made an individual policy decision for awhile not to impose any regulation. Consider it a distinction between a jurisdictional argument and a merits argument. You presented a jurisdictional argument saying in effect that regulation of prostitution within various circumstances should be impermissible because of the personal nature of the activity, thus not an argument that any particular policy was bad, but the right to regulate itself was limited because of the personal nature of the transaction. For the reasons I stated before, I think this argument is invalid.
“That’s just it, you wouldn’t know unless a complaint was filed. Why would you need to know before then? Since this is a private transaction, there would be no problem unless and until there was a report of an infection, and, ostensibly, the client would be the one reporting the infection. Assuming s/he’d know who s/he’d been with (which provider(s)), the public health officials can go to that provider and check his/her results, and can follow up with other clients the provider has seen based on the records s/he’d be required to keep. If the provider hasn’t kept up with the obligation to be tested and/or maintain appropriate records, s/he can be penalized accordingly at that point.
We don’t license food workers, yet when there is an outbreak or an infection (reported by a customer or a hospital, typically), the health authorities are usually able to go back and track down the infected parties relatively easy. Rather than just assume that sex workers are disease-carriers (they’re not, by default), treat them as you do any other worker with the potential for health implications – we don’t license them and only react once something occurs. I see no reason why a similar model couldn’t work with prostitution. My rationale behind the requirement is more for the worker’s protection than the client’s to begin with, by the way.”
Response: How do you penalize someone? Let me put it this way, John sees a prostitute, catches X disease. (1) this approach would likely lead to massive underreporting but let’s move on; (2) let’s say he makes a complaint. The authorities (who would this be?) go to prostitute Jane’s residence and says “we have a complaint, let us check your records.” Jane says “no, go away.” What then? Your system puts up a substantial barrier to enforcement because first we’d have to establish that Jane is a prostitute in the first place in order to penalize her for anything under the regulation. This is especially so if we’re making these criminal rather than civil penalties. In practical terms I think your policy so limits the ability to enforce any of the restrictions that it makes them ineffective.
We don’t regulate food workers because we have extensive regulation of the businesses in which they operate. We don’t license chefs but we regulate the hell out of the restaurants they work in. Also we respond after an outbreak of something but we have all kinds of regulation and inspections to make sure an outbreak never happens in the first place (we at least have such regulations on paper whether or not actively enforced). Your analysis only applies if we require prostitutes to work in brothels. Then yes, we wouldn’t need individual licensing because we could achieve the same goal by regulating the brothel. But my understanding is that your proposed policy wouldn’t require that.
“In order to be justifiable, there has to be some compelling reason for the government to restrict the private activities between two individuals. Since the courts have ruled that private, consensual sexual conduct cannot be restricted by the government (Lawrence v. Texas), I see no reason why the government should be allowed to impose restrictions on it simply because money is exchanged.”
Response: I think you’d have a hard time finding any court who would not find sexual acts performed for commercial purposes to be distinguishable from non-commercial consensual conduct making Lawrence v. Texas inapplicable (also as an aside, prostitution itself was specifically mentioned as being distinct from the regulation at issue in Lawrence). My parents can cook for as many guests as they want in their house and not require licensing but once they do it commercially they’re subject to significant regulation. Same goes for a variety of other private activities. If you’re racist and don’t want minorities at your dinner table, the gov’t says fine, that’s your right. But once you open up your dinner table to guests for commercial purposes the same right to discriminate doesn’t exist. Ultimately, the regulation of commercial activities is vastly different from the regulation of non-commercial activities even if they involve the same acts. If there was no distinction between private non-commercial acts and private commercial acts then why should street prostitution be illegal? We don’t make street sluttiness (at least within certain boundaries) illegal. You want to hook up with random guys who pick you up on the sidewalk, you’re free to do it and have sex all you want. Do it for money and even under your proposal we’re imposing restrictions and limitations. Similarly you restrict prostitution in the home with children in the house. Would you restrict sex in the home between consenting adults with children in the home? If not, doesn’t that seem to indicate that commercial sexual activities are significantly different than non-commercial sexual activities?
Additionally, even if we were to accept the level of scrutiny under Lawrence here, that wouldn’t make state or local regulation per se unlawful, rather it would mean any regulation they did impose would have to meet the requirements showing such a policy was necessary to achieve a compelling government interest (pretty sure they were using a strict scrutiny standard).
Additional side note, Lawrence didn’t say regulation of private sexual conduct was unlawful, but rather the statute didn’t meet the level of scrutiny required to make such regulation lawful.
“The intent here is to keep the agency from taking advantage of the prostitute, and taking half of the client’s fee for simply verifying someone’s identity and booking an appointment doesn’t warrant a 50% share of the fee. That is unjustified in my opinion, and while some workers would be able to switch agencies, there’d be nothing to preclude the agencies from penalizing workers who elected to do so. In all honesty, as I said, this one gives me pause.”
Response: I understand why you’d want to make such a regulation, but we don’t put such regulations on other things is because ultimately we think it does more harm than good. Why is verifying someone’s identity and booking an appointment not warrant a 50% share of the fee? There is at least a certain class of prostitutes who absent an agency would find it nearly impossible to conduct these activities absent the services of an agency. I think this would be particularly so depending on the resources of the prostitute and their desire to make it a real business.
Obviously (maybe not obviously, but now you know), you’d know more about this than I would, but it would seem that for many, either because they don’t have the skills/attributes/desire to generate contacts that booking services could be well worth the 50% fee. I work in a profession where essentially about 2/3 of my billing income is taken by my “agency.” For some folks, it’s not worth it and after some time they set off on their own but for others it’s well worth it.
In the end I think I’d like to see some explanation why there is some sort of “market failure” requiring intervention before implementing such a proposal and a straight price restriction seems to be the type of restriction that is the most likely to have the type of negative effects that we try to avoid when doing any sort of market regulation.
Anyway, interesting ideas. Now I should go back and do this type of analysis for people who are paying me.
Many, many transactions are personal in nature, just because it involves sex, does not I think make it more personal than other activities we regulate heavily. Activities between me and a doctor, therapist, lawyer all seem at least as personal if not more personal than a transaction with a prostitute but those professions are covered by a fair amount of regulation.
You’re actually suggesting that what you do with your lawyer is more personal than being penetrated during sex? Please. I suppose you could make such an argument for a gynecologist, but even what you with your doctor hardly rises to the level of what takes place on a personal level between a prostitute and a client.
You say you just want decriminalization and not necessarily recognition as a “legitimate” profession, but if a profession is not illegal, in what way is the gov’t not recognizing it as a “legitimate” profession?
There are a great many jobs that the government does not recognize in any overt way as “legitimate.” For example, yard workers. I suppose it depends on how you believe the government legitimizes a job. If by making it legal you consider that as “legitimizing” then I suppose the government would be making sex work legitimate. You could use the creation of SIC Codes for various types of work as a form of legitimization. If the government created a SIC Code for sex work, *then* I’d consider it as legitimizing sex work. Simply decriminalizing it doesn’t patently legitimize it IMO. Legitimization requires an overt action (and you could construct an argument that imposing regulations is an overt act, so maybe…?). My point was that I don’t care if the government legitimizes it or not. If you want to argue that decrim’ing it legitimizes then, then so be it.
Because we have not regulated something does not mean we have made it exempt from such regulation. Not banning talking on a cell phone while in a car did not make such activity exempt from such regulation, regulation could and did happen at any time.
Under that test, nothing is exempt, ever, since it is possible to enact regulations on any activity whatsoever (pending a constitutional challenge). By not imposing regulations, by default, it is exempt from regulation (under the common definition of the word “exempt”). At least, until it’s not.
You presented a jurisdictional argument saying in effect that regulation of prostitution within various circumstances should be impermissible because of the personal nature of the activity, thus not an argument that any particular policy was bad,
Actually, the point was that the policy of regulating it in general would be bad because it is a personal activity: I wasn’t attempting to make a value judgment on any specific policy.
How do you penalize someone? Let me put it this way, John sees a prostitute, catches X disease. (1) this approach would likely lead to massive underreporting but let’s move on;
Actually, no. Almost every medical facility is required to report instances of STD infections now, regardless of where/how they were acquired. The only way under-reporting would be encountered is if someone refused to seek treatment (much to their own detriment).
(2) let’s say he makes a complaint. The authorities (who would this be?)
The Health Department – just as is the case today with any STD infection. STD infections are required to be reported to public health departments in most (all?) states (federal law requires most public health departments to track and report this if they receive funds through Title X). I see no reason why the standard method of handling this would need to be different than any other scenario. Let’s continue, though…
go to prostitute Jane’s residence and says “we have a complaint, let us check your records.” Jane says “no, go away.” What then? Your system puts up a substantial barrier to enforcement because first we’d have to establish that Jane is a prostitute in the first place in order to penalize her for anything under the regulation.
Why would that be difficult to do? It isn’t hard to do that now (using surveillance, actually engaging a prostitute for services, etc.). I’m not sure why it’d be any harder to do under my proposal. And there *should* be some hurdles to jump over for law enforcement to arrest/convict a prostitute of violating the law – that is the basis for our entire system of justice, in fact. The intent isn’t to make them criminals so much as it is to encourage testing, reporting, disclosure, treatment, etc.
Generally excellent responses to the points re: Lawrence v. Texas, except for the attempt to draw a parallel with racial discrimination, which is a civil rights issue and not a regulatory one. Some clarifications are in order, though:
My parents can cook for as many guests as they want in their house and not require licensing but once they do it commercially they’re subject to significant regulation.
Only once they meet a certain level of activity, generally speaking. In many places, you can cook commercially (home-based businesses) for others without encountering any regulation whatsoever. My mother bakes sweet breads for sale out of her home and has been told by the local health department that she is not subject to any regulation whatsoever, for example.
If there was no distinction between private non-commercial acts and private commercial acts then why should street prostitution be illegal?
I addressed this already – the safety and quality of life issues involved. It is a long-recognized tenet that government can regulate activities related to quality of life or economic stability of neighborhoods, cities, etc. The same is true for issues related to personal safety within the public realm. I don’t suggest that we outlaw it to impose outright restrictions on the prostitutes, but rather to protect them from the harm that has been shown to befall them from the type of activity they engage in. People argue that it is this criminalization that makes it harmful, but no one has yet to articulate how making it legal would inhibit the inherent harm that comes about from getting into random cars with strangers.
We don’t make street sluttiness (at least within certain boundaries) illegal. You want to hook up with random guys who pick you up on the sidewalk, you’re free to do it and have sex all you want. Do it for money and even under your proposal we’re imposing restrictions and limitations.
If it were occurring in the kinds of numbers that we see with streetwalking/prostitution, then it would assuredly become illegal. We’re not talking about one-off types of incident such as would be involved with the “street slut” you’re referring to, but rather the continual presence/activity of prostitutes. A one-off street-slut situation doesn’t affect the quality of life in the neighborhood. And, in many locations soliciting rides from strangers is in fact illegal even in the absence of solicitation (hitch hiking, for example).
Would you restrict sex in the home between consenting adults with children in the home?
It is already illegal to engage in sex in the presence of a child in most (all?) states. Many couples have been arrested/cited for (allegedly) “harming a minor” by having sex in their presence.
Additional side note, Lawrence didn’t say regulation of private sexual conduct was unlawful, but rather the statute didn’t meet the level of scrutiny required to make such regulation lawful.
That’s true, but the type of activity we’re discussing here (e.g., general sex) falls into the category of sexual conduct beyond the scope of that which can be regulated (in the absence of financial remuneration), according to LvT and previous rulings. As I said, there are several court cases moving in different venues using LvT as a basis for appeal. It’ll be interesting to see where/how far they go. I do doubt they will prevail with respect to prostitution, but you never know (especially on the basis of individual sex worker-client relationships).
Why is verifying someone’s identity and booking an appointment not warrant a 50% share of the fee?
As one prostitute once said, “I do 100% of the fucking, I deserve 100% of the money.” And I’d suspect you work in a profession where your employer provides you with much, much more than simply a client referral and a verification that that person is who they say they are, right?
As I said when I wrote my proposal, this is the issue I have the most trouble with. If the agency also did the marketing, provided some other services such as telephone, in-call locations, health insurance, etc. – something that made the justification for taking half of the fee viable, then I’d have no problem with it. I’d have no problem trying it without such regulation to see how things worked out. But knowing what I know about the business and having spoken with a great many escorts, the overwhelming majority of agency workers feel as though the 40-50% (sometimes more) fee is outrageous.
Just a few quick responses:
“You’re actually suggesting that what you do with your lawyer is more personal than being penetrated during sex? Please. I suppose you could make such an argument for a gynecologist, but even what you with your doctor hardly rises to the level of what takes place on a personal level between a prostitute and a client. ”
Response: Well actually in some cases…yes. Sex can be a remarkably personal experience, tied with lots of emotion. Sex can also be about as much of a personal experience as doing laundry.Is what you do with your lawyer personal? If you’re suing based on a breach of contract, probably not. If you’re having to detail your experiences to get a restraining order on your psycho ex-boyfriend? Working with your attorney to get your kids back? Documenting your experiences to get asylum? I at least, find these type of situations intensely personal. Is “personal” experiences just ones involving physical contact? Is my experience with a masseuse more of a personal experience than my experience with a therapist because the former had hands all over me but the latter was in a chair 3 feet away?
“As one prostitute once said, “I do 100% of the fucking, I deserve 100% of the money.” And I’d suspect you work in a profession where your employer provides you with much, much more than simply a client referral and a verification that that person is who they say they are, right? ”
Response: yes and if fucking was all there was to it then you don’t need an agency to begin with right? So, what’s the market failure here? If the agency fees are so outrageous then what keeps them so high if they actually provide little if any value? If the value is so low then any escort should be able to do without them. It’s not that I can’t be convinced but it just seems like a Marxian argument which only counts input by laborers as actually putting any value into a given product.
In answer to your other question, they do give more, but it’s not really the physical resources that prevents someone from going independent v. working for an agency. The resources I’m provided with for the most part I could get myself. But it would take decades to get the kind of access to the type of work I can do without working for a “agency.”
other than belated congratulations on an admirably unbiased proposal, my only comment was going to be a quibble with the limits on client numbers visiting a residential district. however i notice you have addressed that issue convincingly already.
i guess it ties in with your statement about de-stigmatization being a metaphysical ambition and hopeful consequence of sensible legislation, rather than an immediate necessity in and of itself.
with a masseuse/therapist etc working from home, such restrictive regulations would likely be unrealistic or unenforcable, and would of course be less likely to affect house prices etc. but therein lies the stigma surrounding the sex industry.
if in the future, a pro came widely to be regarded as providing therapy in a similar manner (or people stopped being so nosey and judgmental about their neighbours in general) then it would be more likely that not only could a pro have a working environment that was safe (physically and legally), but also that they could have a similarly fair opportunity to maximise their earnings.
i will remember in future to suggest that anyone considering the topic should read this article.
Hey, sp. Good to see you again.
with a masseuse/therapist etc working from home, such restrictive regulations would likely be unrealistic or unenforcable
Just about every community restricts the amount of “business” (regardless of its nature) that can be conducted from a residence, specifically to preclude the traffic and whatnot from interfering with life in a neighborhood. Such is the basis for zoning regulations, in fact. So even with masseuses, there are limits as to how many clients they can see in any given time period (or some other constraint on their business such that it doesn’t impact the local community to any significant degree).
i guess it ties in with your statement about de-stigmatization being a metaphysical ambition and hopeful consequence of sensible legislation, rather than an immediate necessity in and of itself.
That is the way I see it. Believe me, there’s nothing I’d love to see more than an erasure of the stigma associated with sex work (well, except perhaps a constitutional amendment guaranteeing freedom of choice for women).
I do think a gradual, phased in approach to it is the best way to go. It is nonsensical to believe that simply removing laws criminalizing sex work will automatically translate into full societal acceptance.
IMO, putting some basic regulations like I’ve proposed in place, specifically the limitations upon how many clients one can see in a residence, would allow the workers to do their jobs legally, in a safe environment, but wouldn’t force entire communities to rise up in protest against the worker. That’d be antithetical to the whole idea behind decrmin’ing it.
Thank you for your thoughts, sir.
Hey, Real Pimpin.
The exception would be if a trick solicits unprotected sex or a prostitute solicits unprotected sex such as bbbj or bareback anything then they could arrest them and charge them with a misdemeanor call it commercial sexual endangerment.
I think it ought to be up to the prostitute and the client to decide if they want to engage in unprotected sex, and not subject to government regulation. I think once a prostitute and the client establish some level of trust, if they want to engage in bareback sex, then they should be able to. I do believe that the overwhelming majority of workers want to be safe, and would go the covered route unless/until they reached that level of trust with someone.
Street prostitution same thing but have red light zones during certain hours.
That idea might have some merit. It would allow for a balance between “neighborhood” and the suggestion from you and Amanda that streetwork be legal. I still think, though, that it would remain dangerous.
I think some agents are good and if a agent charges 1000 to 2000 for a 2 hour date and you get 60% which is 600-1200 plus a 200 to 500 tip what is wrong with that.
What’s “wrong” with that is that the sex worker is the one who is doing the work and putting herself/body on the line, not the agent, and therefore deserves the vast majority of the money (IMO). Maybe decrim’ing it would do away with the coercion that some agents exert over the workers.
I do agree with the majority of everything else you’ve suggested, though. Thanks for your input.
(Alexa read my e-mail.) The bbbj dfk thing is just unacceptable. You cannot develop trust with a trick on that level. Safe sex must be mandatory, we have to enforce that ourselves, it is common sense!
Basically even if they revoke all the felony statutes (making prostitution a felony on the 2nd, 3rd or 4th offense) that would be nice start. Also if LE would just choose not to bother enforcing the prostitution laws except in rare cases where the most it would be is a misdemeanor conviction or plea bargained down to a non-crime infraction/violation and a $100 fine that would also be a step in the right direction.
Agents, well if you like setting up dates yourself cool but a lot of women don’t like setting up or catching dates and have no skills in doing so.
I really think the people in the Life need to set high platinum standards and stick to them. The people who don’t stick to those standards need to be blackballed and excommunicated from the Game. The game is going downhill with all these people trying to teach themselves rather than learn it the correct way.
Imagine if people tried to teach themselves how to be electricians, plumbers or doctors with no formal training why there would be fires and floods constantly, people would be constantly sick it would be chaos. Well that is what we have today in the Game, pure chaos with all these people not getting formal training just “teaching themselves” and not learning it right. Taking advice from a trick on a review board or a wanstitute come on and wake up ladies. Hoes need proper guidance to do this and be safe, healthy and sane!
Hoes are still women and they have needs, desires and wants like any other woman. They want to be happy, they want to live good and the majority of them want a real man to love who will accept them for who they are and what they are!!
RP,
The bbbj dfk thing is just unacceptable. You cannot develop trust with a trick on that level.
Again, you don’t get to make the determination as to what is or is not “acceptable” to someone else, and cannot speak to the level of trust that a provider and client develop between themselves. That exists within the context of their relationship.
Imagine if people tried to teach themselves how to be electricians, plumbers or doctors with no formal training
The fact of the matter is that there are no “formal” training schools for hookers, so this is a useless point. If there were no schools for plumbers, electricians and doctors, then they would indeed learn on their own (and did for thousands of years).
Having said that, I think it would be an awesome idea to have legitimate schools for sex workers, and not have some supposed pimp “teaching” his “hoes” how to turn tricks.
Hoes need proper guidance to do this and be safe, healthy and sane!
I’m going to ask you one time to stop referring to sex workers as “hoes.” We’re not garden implements. You can use the word “whore” if you want, or the preferred “sex worker.”
A friend of mine used to work for an anti-trafficking organization, and said its pretty well established that legalization of prostitution and increased human trafficking are pretty directly correlated (more prostitution means the illegal stuff is easier to ignore), which I see as the biggest argument against legalization. The counter argument is its also pretty directly correlated with a collapse in the transmission of AIDS. Unfortunately human trafficking is a rather big problem in America, whereas I not as sure about transmission of AIDS through prostitution (sexual education is better among American prostitutes I believe than say Thailand, where stopping transmission of AIDS is a big deal.).
Of course if there was actually a crack down on human trafficking that might help, but it primarily happens among minority communities where the cops give less of a damn.
Still the laws should without a doubt be made more lenient.
BG,
A friend of mine used to work for an anti-trafficking organization, and said its pretty well established that legalization of prostitution and increased human trafficking are pretty directly correlated (more prostitution means the illegal stuff is easier to ignore), which I see as the biggest argument against legalization.
A lot of people use that anecdote with out a shred of evidence to back it up, with the singular exception of Amsterdam. And in that case, the increase in trafficking has more to do with they way they police trafficking to begin with. In New Zealand, for example, prostitution is now legal and they have not seen any increase in trafficked humans.
Human trafficking is already against the law, and decriminalizing prostitution is not going markedly increase that simply because the work is no longer illegal (despite the claims fo Farley and others of her ilk), especially if that were the case systemically. Better enforcement of the existing trafficking statues would be the solution to that, rather than keeping what sex workers do illegal and punishing them for trying to make a living.
As I also mentioned in the post, I think pimping should probably be illegal. But the existing statutes concerning “living off the proceeds of a prostitute,” which were designed to make pimping illegal, also harm the ability of a worker’s family to live off what s/he makes.
Impressa:) or as a Portuguese, vpechatlilso!