Is the Criminal Prosecution of Prostitutes Necessary in American Society Today - Literature review Example

Is the criminal prosecution of prostitutes necessary in American society today? Should prostitution be a crime? Arguments in favor of decriminalizing prostitution express the view that it provides a viable method of income for poor women. Those arguing against decriminalization take the position that prostitution harms women, promotes human trafficking and leads to other crimes (Farley 2004, p. 1087). Images of prostitutes in American society have always represented prostitutes as “social misfits, sexual slaves, victims of pimps” drug addicts and instruments of organized criminal activity (Jenness 1990, p. 403). This conventional image of prostitutes has been challenged by a new movement in the 1970s and 1980s in favor of legitimizing and decriminalizing prostitution. Championed by a US pro-prostitution movement, COYOTE, arguments against the criminalization of prostitution maintain that all anti-prostitution laws in the US should be repealed and prostitution should be recognized as a legitimate source of labor with full protection for those engaged in prostitution (Jenness 1990, p. 403). While these arguments in favor of legitimizing prostitution have merits, there are a number of sound reasons for the continued criminalization of prostitution. It is more than a matter of free choice, civil liberties and moral issues. The criminalization of prostitution is a legitimate method of social control. To start with, it facilitates a method by which clientele may act out sexual fantasies that they cannot act out in ordinary circumstances and therefore puts prostitutes at risk of some measure of harm (Clinard and Meier 2007, p. 308). Moreover, prostitution has a number of traits that are common among “forcible rape” (Clinard and Meier 2007, p. 308). To start with, both rape and prostitution involve “illicit sex-related behavior (Clinard and Meier 2007, p. 308). Rape and prostitution typically involve some measure of brutality in conjunction with the sexual activity and both can involve “the humiliation of female participants” (Clinard and Meier 2007, p. 308). In addition, neither rape or prostitution recognize that the female participants has his or her own sexual needs and neither are looked upon as likely to satisfied by the act. As a result of these common factors between rape and prostitution, studies indicates that a high volume of prostitutes become victims of rape (Clinard and Meier 2007, p.308). Complicating matters for prostitutes and thereby justifying the criminalizing of prostitution, there is a common belief that prostitutes cannot legitimately be victims of rape. This rationale is grounded in the belief that a person who sells sex and does so purely for financial gain, cannot legitimately be harmed by rape. Others go so far as to express the view that prostitutes actually deserve to be raped as they consciously put themselves in that position (Clinard and Meier 2007, p. 308). The perceptions of prostitution are a reality, and whether they are right or wrong, prostitutes are vulnerable to physical violence, rape and other crimes as a result of these widespread perceptions. In this regard illicit sex can be compared to illicit drug use in that both classes of offenders are vulnerable to other crimes and harm general. Therefore just as illicit drugs are controlled by law, prostitution is also controlled by law. The vulnerability of prostitutes and the need to guard against these vulnerabilities necessitate the involvement of the legislators, the judiciary and law enforcement. The legislators identify the areas of prostitution that require social control, law enforcement ensure that those laws are accounted for and the judiciary ensures that offenders are prosecuted in accordance with the law. Prostitution per se, is not a crime in the US, but rather, the crime is invoked when sex is offered for sale (Jenness 2002, p. 31). Even so, outside of rural Nevada, prostitution is unlawful throughout the US and anti-prostitution laws are divided among two distinct laws. Those laws either ban loitering “with the intent to” commit prostitution or laws prohibiting offering or agreeing to engage in prostitution (Jenness 2002, p. 31). Moreover, US laws typically prohibit criminal conduct associated with prostitution such as pandering, pimping, procuring, renting premises for prostitution, loitering, vagrancy, luring minors into prostitution and solicitation (Jenness 2002, p. 31). The regulation and control of prostitution in the US reflects the fact that prostitution itself is a form of public disorder. Public order crimes are crimes that infringes “the moral sentiment of society without a clearly identifiable victim” (Helfgott 2008, p. 320). These crimes typically include offenses such as prostitution, pornography, substance abuse, public drunkenness, driving while intoxicated, disorderly conduct, vagrancy, loitering and trespassing (Helfgott 2008, p. 320). Obviously, the US targets a number of these kinds of public disorder crimes under the ambit of prostitution, thereby tying prostitution with public disorder generally. One of the common themes of these public disorder crimes is that they are deeply rooted in poverty, opportunity and despair. As Helfgott (2008) explains: Public order crime is designated as a punishable offence because the behavior is seen as disruptive in some way to the social and moral order (p. 320). While it is argued by pro-prostitution advocates, particularly liberal feminists that prostitution should be a personal choice and should not remain criminalized on the basis of moral virtues, prostitution is not specifically a question of morality. It not only fuels social decay, but it perpetuates the objectification of women as subordinate and provides for the exploitation of women as the weaker sex. In this regard, it should remain an unlawful activity for the protection of women and society as a whole. As Hefgott (2008) explains, when people engage in public order offenses they do not typically specialize in a specific offense, but are typically tied to other crimes. These individuals are typically entrenched in a: lifestyle and subculture in a which offenses against the public order are a normalized part of the social landscape (p. 320). It is obvious that the US anti-prostitution laws recognizes and accepts this fact and therefore targets the crimes that are directly associated with illicit sexual activities. It is frequently argued and rightly so, that the “good purchased from a prostitute is frequently, in part, her own degradation” (Anderson 2006, p. 363). Former prostitute Andrea Dworkin argues that prostitution is no more than a “kind of inhumane violence targeted at the female body” (Anderson 2006, p. 363). Dworkin also explains that prostitution generally involves the purchase of “the subordination and degradation” of women and these “harms are not incidental to, nor easily separable from the practice of prostitution” (Anderson 2006, p. 364). It is argued however, that much of the harm accruing to prostitutes could be minimized if prostitution was legalized and/or deregulated. These arguments take the position that because prostitutes are outside of the law they are vulnerable to mistreatment by pimps and customers and since prostitution is illegal they will not be compelled to lodge a formal complaint (Smith 2009, p. 692). These arguments however, do not take into account that any sexual activity is entirely private in nature and there are only two witnesses: the complainant and the alleged offender. Proving mistreatment, exploitation and degradation is a matter of fact that cannot in most cases unless violence is involved, be corroborated by independent evidence. It is therefore only marginally possible that legalization of prostitution can and will prevent exploitation, degradation and subordination of prostitutes. By continuing to outlaw prostitution and the various crimes directly associated with prostitution, society is at least aware that the harm that prostitutes are exposed to, are unacceptable to society. In other words, the law, the judiciary and law enforcement are collectively conveying the message that the degradation, exploitation, objectification and subordination of women are reprehensible. These are the moral issues that are at the heart of anti-prostitution laws in America. It is therefore not the anti-prosecution laws that degrade women. It is prostitution that degrades women and all those that facilitate the degradation of women via prostitution are accountable. Prostitution permits the socially and economically more powerful to exploit the weaker factions of society. It represents a “mark of entrenched injustice” (Anderson 2006, p. 365). Essentially, social inequities facilitate prostitution in that it permits the powerful to “have access to sexual objects of their choice” (Anderson 2006, p. 365). Women who engage in prostitutions are frequently subjected to the worst form of treatment because their customers are aware that they are powerless to resist the treatment (Anderson 2006, p. 365). The powerlessness is not a result of regulation, but a result of social conditions that necessitate prostitution. In the final analysis, the continued criminalization of prostitution is entirely necessary in American society. It recognizes and accepts that the degradation and exploitation of women as sexual objects goes against the grain of a free and equal society. Women who willingly open themselves to degradation and exploitation and the men who willingly oblige them are disrupting the social order and are rightly apprehended by the police and prosecuted by the judicial system. We are accepting that while we might want to be a permissive society, we do not want to enable any form of discriminatory conduct. Moreover, we do not want to encourage public disorder and since prostitution invokes and facilitates other forms of public disorder it is harmful and disruptive to society as a whole. Works Cited Anderson, S. “Prostitution and Sexual Autonomy: Making Sense of the Prohibition of Prostitution” cited in Spector, J. (Ed) Prostitution and Pornography: Philosophical Debate about the Sex Industry. Stanford University Press, 2006. Clinard, M. and Meier, R. Sociology of Deviant Behavior. Cengage Learning, 2007. Farley, M. “ ‘Bad for the Body, Bad for the Heart’: Prostitution Harms Women Even if Legalized or Decriminalized.” Violence Against Women, Vol. 10(10), 2004, 1087-1125. Helfgott, J. Criminal Behavior: Theories, Typologies, and Criminal Justice. SAGE Publications, 2008. Jenness, V. Making it Work: The Prostitute’s Rights Movement in Perspective. Transaction Books, 2002. Jenness, V. “From Sex as Sin to Sex as Work: COYOTE and the Reorganization of Prostitution as a Social Problem.” Social Problems, Vol. 37 (3), 1990, 403-420. Smith, K. “Prostitution”. Sex and Society Vol. 3, 2009, 691-694. Read More