Prostitution should be legal

Laws criminalizing adult prostitution need to be re-examined.

by James Castle


Under Minnesota statute, and under laws in most U.S. jurisdictions, prostitution involving consenting adults is a criminal offense. Minnesota law defines prostitution as “hiring, offering to hire or agreeing to hire another individual to engage in sexual penetration or sexual contact or being hired, offering to be hired or agreeing to be hired by another individual to engage in sexual penetration or sexual contact.” But laws criminalizing prostitution make little rational sense, with respect to both purpose and outcome.

Although we usually don’t hire another and exchange or offer to exchange money for sexual activity, most sexual activities between consenting adults involve some sort of transaction. Often, these transactions involve an exchange of affection or pleasure. Moreover, it is legal to hire another person to engage in sexual activities for commercial use, such as with pornography. Juxtaposed with these facts, the criminalization of the private hiring of others to engage in sexual acts appears to be nothing more than moral policing. For whatever reason, there is something immoral about sexual activities that involve an economic transaction where services are exchanged for valuable consideration — and the activities not being for public consumption.

This reasoning, although on the surface appearing persuasive on its own, ignores the purpose of the laws criminalizing prostitution. Prostitution can be distinguished because many who prostitute themselves are doing so because they are indigent. Prostitutes do not consent to being prostitutes; rather, they are coerced into prostitution in order to escape economic detriment. The indigent status of the prostitute creates unequal bargaining power between the prostitute and the other party. Prostitutes are easily susceptible to physical, sexual and drug abuse and disease. The law seeks to deter prostitution because it’s in the best interest of those who would otherwise engage in the act, as well as those who would seek to induce others into, or enable others to continue, such a life.

These laws fail because, rather than address the conditions that lead prostitution to be something that should be criminalized, they stigmatize prostitution and offer little deterrence for those engaging in or who desire to engage in the act.

If prostitution were legal, it could become a viable profession, where regulations protect members of the profession and penalize those who seek to maintain the negative conditions of illegal prostitution. For example, if prostitution was legal, prostitutes will be less likely to fear seeking help from the police if a client tries to abuse her. Regulations can demand that prostitutes be licensed and require prostitutes to be screened regularly for sexually transmitted infections in order to maintain the license. Professional prostitutes would have better access to information about safer sex and sexual health and access to condoms.

In a study published in 2010,  the effects of the legal status of sex work on public health was examined in three Australian cities, as prostitution is legal in some parts of Australia. In one city, licensed sex work was legal. In another city, unlicensed sex work was legal and in the third city all forms of sex work were illegal. In the cities where sex work is legal and where licensed sex work is legal, the sex workers saw increased access to health promotional services.

Furthermore, when an act such as prostitution becomes legal, discussion is provoked, and the conditions of prostitutes are exposed. The services provided are no longer “underground” services. As the conditions better, the work of a prostitute loses its stigma. A more visible profession of prostitution with increased community support will likely make these services safer and increase the bargaining power of licensed members.

As it stands, the law seems to reflect that exchanging private sexual acts for valuable consideration is immoral. Prostitution is not an acceptable means through which a person may procure an income through labor. If the law seeks to prevent the effects of prostitution, however, it should target the effects, rather than the sexual acts themselves. The negative conditions of prostitutes can be mitigated with positive state intervention. The law should seek to promote safer sex between consenting adults, rather than maintaining archaic penalties for them. Legalizing prostitution is a step toward a society with greater interest in promoting healthy sexual behaviors and thus, healthier lives.