Prostitution and Criminal Law - Essay Example

Criminal Law Introduction Some behaviors are viewed as being criminal while others are not criminal. There is a criterion that can be used to assess whether a certain behavior is criminal or not. First, for a behavior to be criminal, it should be harming to the victim. This is known as the principle of harm. According to J. S. Mill, harm to others is the only justification to criminalization. Therefore, anything or any act that does not cause harm should not be classified as a crime whether it is morally viewed as wrong or not. At this point, one would want to understand what harm really is and what causes harm to others. Harm can be defined as a set back or defeating of a person’s interests. Acting in a manner that violates the rights of another and hence causing a set back to ones interests is harming1. Secondly, a behavior should be offensive for it to be regarded as criminal. An offensive behavior is one that leads to breach of peace, inciting hatred, public order offences, outraging public order decency, corrupting public morals, voyeurism, and exhibitionism among others. This constitutes the offence principle2. These are the two bases that are to be used in presenting a case for the legalization or decriminalization of prostitution and bestiality. Prostitution A simple definition for prostitution is engagement in sex in exchange for money. The person engaging in sex could also benefit from something else rather than money in exchange to giving out sex. In prostitution, normally there is consent between the parties involved. One party agrees to give sex while the other agrees to pay for it3. Every person has the right to make their own sovereign decision. The law permits people to exercise their own choices as per their wish. This is referred to as autonomy or de jure liberty. The choices one makes should be respected by the law4. Under de facto freedom, there should not be any constraint that bars people from doing what they wish. The decisions that people make are deemed to be good to them. According to Mill, “a person’s good is always best determined by that person himself.” By interfering with the choices that a person makes, that could actually be the source of harm, as the decision itself could not be deemed harmful to the one who makes it irrespective of its nature. Prostitution is normally a decision that is made by a person independently. The decision of the people should be respected as stated by the law. People are sovereign and can make their own decision. As J. S. Mill puts it, “Over himself, over his own body and mind, the individual is sovereign5” Pg. 32. Blocking the decision of this person will actually be harmful in itself and hence the law should not attempt to block the decision of individuals as it will cause harm to them. The harm principle cannot be used to criminalize prostitution. The reason for this is that consent is in place and the consent negates any wrong. As per the principle Volenti non fit injuria (he who consents cannot complain) a person cannot harm himself by consenting. If the act of prostitution is to be criminalized, then the only ground that can justify its criminalization is on moral grounds. However, this moral ground according to the law is not criminal since it does not cause harm to anybody. People in the society may feel disgusted due to other people being prostitutes. But feeling disgusted does not have any prove that they are harmed by the acts. Prostitution may cause emotional distress due to its disgusting nature and to some extent it may harm the interest of observers. But if moral offences are to be defined as harmful, then the harm principle is likely to become meaningless. Under the prohibition principle, (de Marneffe, 2013) the government should not prohibit a person from making a decision. By prohibiting the person from making their decision, this would constitute to violation of the person’s sovereignty only in the event that the choice being made involves an important form of discretionary control over his own mind and/or body. In addition, the government will also violate the rights of an individual if the choice they make must not be outweighed by countervailing welfare or autonomy consideration. Prostitution involves a decision that is in discretionary control over the person’s body. By criminalizing prostitution, the government attempts to control the way a person should use their sex organs. Each person has the right to choose the manner with which they should use their sex organs or any other organ in the body. In addition, the government dictates to the person whether they should or they should not use their sex organs and if they should use, then the government dictates the circumstances under which the organs should be used6. When one makes a choice to give away sex in exchange for money, this is usually a discretionary control over their sexuality and body, violation of which constitutes violates the self sovereignty of the person involved. Therefore the sale of sex should not be criminalized as this would violate the discretionary control of the people over their own body. On the other had, when a person owns or operates a brothel, this does not involve a discretionary control over their body. Therefore, owning a brothel can be criminalized without compromising the sovereignty of the persons involved. However, it the running of brothels is to be criminalized, it will be difficult for people to get access to commercial sex. The opportunity to buy or to sell sex will be ceased. According to de Marneffe (2013), the opportunity principle states that the government can violate the sovereignty of an individual by implement a policy that minimizes their opportunity to make a choice if that choice involves an important form of control over her mind or body7. Similarly, the violation will also be apparent if the reduction of such opportunities is not justifiable under welfare grounds. Therefore, when the government criminalizes or bans the running of brothels, it will reduce the opportunity of people to access sex and this will deter a choice that involves an important form of control over the person’s body8. Therefore, under the principle of opportunity, it can be argued that commercial sex should not be criminalized. In fact, if brothel running is criminalized, then the people participating in sale of sex will be exposed to dangers of mistreatment and violence a factor which will cause harm to them. Over the years, prostitution has been based on Christian views of immorality. However, recent research has attempted to separate the reality of prostitution from moral issues. The research has questioned whether prostitution is really criminal and whether should be punishable under the law of the land. In the United States for instance, the illegal status of prostitution has been dictated by three assumptions. First, prostitution has been related to organized crime. Second, prostitution has led to most of the ancillary crimes. Finally, prostitution is a prime cause of most venereal diseases. These assumptions have been put in question. There is no evidence that prostitution constitutes to organized crimes. There is no harm that is caused by prostitution on the parties involved or on third parties. For prostitution to take place the two parties must have consented and therefore no one is forced into it9. Finally, in prostitution is a choice that an individual chooses. Those who choose to work in prostitution deem it as their profession. Therefore, the general public and the society at large do not have any right whatsoever to interfere or to judge the profession of others. Similarly, the government should not criminalize the profession of citizens as long as it does not harm other people10. In fact, there have been suggestions that the government should implement a tax strategy so as to be collecting tax from sex workers. Legalization of prostitution will be beneficial to the people involved in the trade as well as to the government. It will help in reducing crimes related to prostitution such as mistreatment of the women selling sex11. Further, it will reduce by a great number the spread of Sexually Transmitted Diseases12. It will also give the government an opportunity to focus on more serious crimes which have the potential to cause harm, destabilize peace and even negatively affect the economy of the nation. Bestiality Bestiality refers to human beings having sex intercourse with animals. It is a behavior that has been on the rise and has attracted much debate on whether it is a crime punishable by the law or not. In any society, having sex with an animal cannot be viewed as being morally right. However, the big question remains as to whether bestiality is a crime under the law or not. Going back to the harm principle, it is virtually not possible for someone to assess or to determine the extent of harm that is caused to an animal by a person who haves sex with it. An animal is not like a human being who is able to conclusively articulate their feeling. Therefore, it is hard to know whether it is harmed by sex or not. Animals may have interests that may be set back by certain actions from human beings. This would constitute a crime under the principle of harm as setting back the interests of someone else causes harm. Despite the fact that animals have interests, there is nothing to prove that they do not have interest in engaging in sexual intercourse with human beings. Therefore, it is not right to reach to a conclusion that the interests of an animal are set back in all the cases of sexual intercourse with human beings. It is in no doubt that an animal does not have the capacity to consent. However, this should not be used to reach a conclusion that sex intercourse with an animal is always a violation to their rights. It can be assumed that an animal does not feel violated by human beings when they engage in sex with it. The fact that they cannot be able to consent does no mean that they are harmed by sex. Animals are normally subjected to many things by human beings apart from being used as sex objects13. Some of these things that they are subjected to may be harmful to the animal even more than intercourse could harm them. Animals’ inability to consent should not be used as a foundation to criminalize bestiality as they also do not consent to those other things that they are normally subjected to. By criminalizing bestiality and not criminalizing the harmful things that animals are normally subjected to, this will indicate an inconsistency of the law. Animals can be judged just the same way as human beings. According to Singer, “sentience should be the only requirement to trigger an entitlement to rights: ‘No single characteristic, such as capacity, defines all humans to the exclusion of all animals.14” Therefore, due to the fact that human beings are not always harmed by sex, the animals too should not be assumed to be always harmed by sex. Under the offence principle, it is not easy or rather it is not possible to justify criminalization of intercourse with an animal. The reason to this is that bestiality does not breach peace, it does not interfere with public order, and it is not inciting, does not corrupt public morals, and is not outraging to public decency. Bestiality is among the crimes that are categorized as victimless crimes. This is due to the fact that no one is harmed by them. No one is a victim to such crimes15. Bestiality contains two elements namely property rights and consent. In this context, criminalizing bestiality would be limiting people’s practice to their properties (animals) or to animals that are not owned by anyone (wild animals). On the other hand, the animal may be willing to intercourse with human and is not injured during the intercourse. It should be noted that it is not possible to tell whether the animal is willing or not but it cannot be assumed that at all times the animal is not willing. Looking it from the side of the perpetrator of bestiality, it is appreciated that bestiality is not natural. However, when an individual makes a decision to indulge in the act, their sovereignty should be respected and they should not be held criminals for such doings. The individual who engages in sex with an animal is normally not forced into it and that he makes his own sovereign decision. People have the rights to make decisions on their own as long as they are mentally well and that they are not forced into it. Philosophy assumes that animals and plants do not have rights and that it is only human beings have rights. Therefore, from this standpoint, intercourse with animals cannot be considered as violation of their rights. If no rights are violated in the act, then there is no evident of criminalizing bestiality. Conclusion The judgment of a behavior is being criminal or not being criminal is subjective rather than objective. It relies on whether there is any harm caused on the victim or whether there is an offence. Therefore, since prostitution and bestiality do not constitute to either harm or offence and the two are behaviors following an individual sovereign decision, they should not be criminalized. Reference List Adams, W., (2009) ‘Human Subjects and Animal Objects: Animals as ‘Other’ in the Law’ Journal of Animal Law and Ethics 29 Ascione, F. R. (2008). The international handbook of animal abuse and cruelty: Theory, research, and application. West Lafayette, Ind: Purdue University Press. Beyleveld, D., & Brownsword, R. (2007). Consent in the law. Oxford [u.a.: Hart Publ. Carr, S.V. (1995). The health of women working in the sex industry: Amoral and ethical perspective. Sexual and Marital Therapy, 10, (2), 201-213. de Marneffe, P., ‘Vice Laws and Sovereignty’ (2013) Crim Law and Philos 7:29-41 Feinberg, J, (2002) Offence to Others: Rethinking the Offense Principle’ Legal Theory, Vol. 8 (Issue 3), p. 269 - 295 Flowers, R. B. (1998). The prostitution of women and girls. Jefferson, NC. [u.a.: McFarland. Khan, U., (2010) ‘Running Into the Family: 8 short stories about sex workers, clients, husbands, and wives’ Journal of Gender, Social Policy and the Law 19:2, pp.495 – 528 Madden, D. M. (2010) ‘Sex Trafficking and Criminalization in Defense of Feminist Abolitionism’,158 U. Pa. L. Rev. 1729. Oshana, M. A. L. (1998) ‘Personal Autonomy and Society’ Journal of Social Philosophy Volume 29, Issue 1, pages 81–102 Pheterson, G. (1989). A vindication of the rights of whores: The international struggle for prostitutes rights. Seattle, WA: Seal Press. Singer, P. (1976), All Animals are Equal’ in P Singer and Regan (eds), Animal Rights and Human Obligations, 2nd edn Prentice Hall: London Spicker, P. (2006). Liberty, equality, fraternity. Bristol: Policy Press Waltman, (2012) ‘Prohibiting sex purchasing and ending trafficking: the Swedish prostitution law’ 33 Mich J Int’l L 133 Weaver, N, (2013), Prostitution should be decriminalized in America, Daily Titan, retrieved from < http://www.dailytitan.com/2013/12/prostitution-should-be-decriminalized-in-america/> on April 26, 2014 Read More