Contemporary Justice Review

Vol. 13, No. 1, March 2010, 43–55

Why is prostitution criminalized? An alternative viewpoint on the

construction of sex work
Rebecca Hayes-Smitha* and Zahra Shekarkharb
a
Department of Sociology, Anthropology, and Social Work, Central Michigan University, Mt
Pleasant, Michigan, USA; bDepartment of Sociology and Criminology & Law, University of
Florida, Gainesville, Florida, USA
Contemporary
10.1080/10282580903549201
GCJR_A_455384.sgm
1028-2580
Original
Taylor
102010
13
mshayes@ufl.edu
RebeccaHayes-Smith
000002010
and
&Article
Francis
(print)/1477-2248
Francis
Justice Review(online)

Prostitution/sex work remains criminalized in most areas of the United States.

While it can be sufficiently argued that prostitution is a dangerous occupation, the
assumptions that the criminal law are prefaced on are not necessarily substantiated
with sufficient evidence. Alternative constructions of prostitution such as
decriminalization or legalization are backed by more support and can be asserted
to be more just or fair from a legal standpoint and a public health perspective.
Throughout the course of this critical review the assumptions on which
prostitution rests are examined, along with who is potentially advantaged by the
current construction and the legal fictions of the current law. Finally, alternative
constructions are addressed that could be advanced and argue for prostitution to
no longer be criminalized.
Keywords: prostitution; legal fiction; decriminalization; legalization; sex work;
law

Introduction
Black’s Law Dictionary (Black, 2004, p. 915) defines a legal fiction as, ‘an assump-
tion that something is true even though it may be untrue … specifically a device by
which a legal rule or institution is diverted from its original purpose to accomplish
indirectly some other object’. Historically, legal fictions have been described simi-
larly, Henry Maine (1861) defined the term, ‘legal fiction to signify any assumption
which conceals, or affects to conceal, the fact that a rule of law has undergone alter-
ation, its letter remaining unchanged, its operation being modified’. It has also been
described as a shared construction about the world which is relied on in law and which
makes assumptions about people or things that cannot or have not been empirically
verified (Lanza-Kaduce & Bishop, 1986). We argue that one such social construction
is the illegality of prostitution.1 It has been classified as one of society’s ‘social evils’
and as one of the oldest mala prohibita or ‘victimless’ crimes (May, 1999).
Although there are different categories of prostitution (i.e. street, brothel, escort),
they share an underlying definition. The World Health Organization, for instance,
defines prostitution as ‘a dynamic and adaptive process that involves a transaction
between seller and buyer of a sexual service’ (Farley, 2004, p. 1089). In the USA, each
state has the power to determine the legal status of prostitution for that state. Once
considered a vagrancy offense, prostitution is now a public order crime – a crime that

*Corresponding author. Email: hayes2r@cmich.edu

ISSN 1028-2580 print/ISSN 1477-2248 online

© 2010 Taylor & Francis
DOI: 10.1080/10282580903549201
http://www.informaworld.com
44 R. Hayes-Smith and Z. Shekarkhar

disrupts the order of a community. In all but two states (Nevada and Rhode Island)
prostitution is illegal and it is usually classified as a misdemeanor offense
(ProCon.org, 2008a, para. 2).
The different views on prostitution policy in the USA can be divided into four
categories. First, under criminalization (the current system in place), prostitution is
illegal and all involved parties (prostitutes, customers, or ‘johns’, and pimps) are
subject to criminal punishment. Second, abolitionist approaches consist of laws
punishing only third parties and not the prostitutes themselves. Third, under decrimi-
nalization, prostitution is no longer a criminal offense and is treated as an independent
business (Brents & Hausbeck, 2005). Many decriminalization supporters advocate
that the ‘johns’ and pimps should receive punishment based on their attempts to
exploit women (Morash, 2005). Fourth, under legalization, the state licenses and regu-
lates prostitution. Legalization may also include special taxes, restricting prostitutes to
working in certain districts/zones and health checks. Even though there are a number
of ways to reconstruct the reality of prostitution, we focus more on the potential reality
created if prostitution were legalized. Our argument is prefaced on the assumptions
that reconstruction is useful because it has the potential to protect society, protect
prostitutes and protect social order. It could help solve the practical problems of sexu-
ally transmitted diseases (STDs) and violence against a vulnerable population and
potentially help poverty-stricken communities clean up.
Even though other countries have legalized and regulated prostitution (e.g. the UK,
France, Canada, Mexico, Australia), in many areas of the USA the public safety/health
concern argument still maintains that prostitution must remain criminalized
(Sexwork.com, 2009, para. 2). Is this assumption empirically supported or are coun-
tries that are regulating prostitution doing better in regards to public health? It is possi-
ble that criminalizing prostitution is adding to public health problems.

Assumptions of laws on prostitution

In examining extant literature on the constructions of prostitution we found four
underlying assumptions. First, that the criminalization of prostitution will deter the
soliciting of such services. Second, that prostitution is a threat to public health because
it spreads diseases, specifically sexually transmitted diseases. Third, that prostitutes
are in a vulnerable position and therefore have a higher risk of being violently victim-
ized. Fourth, that prostitution creates social disorder in the community (Brents &
Hausbeck, 2005). Taken together these assumptions appear to all have a fear-inducing
component directed towards prostitutes, johns or the general population, and they may
not be empirically valid.
The assumption that making prostitution illegal will deter citizens from involving
themselves in this work is couched in the deterrence argument, which assumes that
individuals have free will and that they choose to commit a crime by weighing the
costs and benefits (Cullen & Agnew, 2006). The general deterrence assumption would
argue that an individual will be deterred from prostitution because they will be
arrested for being a prostitute or purchasing services from one. The specific deterrence
argument posits that an individual will be deterred in the future once they have been
arrested. Both of these arguments assume that individuals will view arrest and punish-
ment as more costly than the potential benefits of prostitution. From a deterrence
perspective, the benefits may outweigh the costs because punishment is not swift,
severe and certain. Sex workers may still ‘rationally’ choose to perform their services
 Contemporary Justice Review 45

because the punishment does not adequately outweigh the benefits. While deterrence
is a relatively straightforward and reasonable argument, empirically, deterrence is
difficult to test and the preponderance of research on deterrence indicates that this
theory does not explain much variance in criminal activity (Pratt, Cullen, Blevins,
Daigle, & Madensen, 2006).
The second assumption is that deterring people from entering sex work and others
from soliciting this service will prevent the spread of sexually transmitted diseases.
While it is true that prostitution is sex for money, and STDs can be a side effect of this
exchange, the fear of disease and contagion from prostitution was not always the
underlying argument against prostitution. Before the nineteenth century, the debate
surrounding prostitution was moral in nature. In the nineteenth century, however, that
argument was replaced with medicalized rhetoric from doctors and healthcare profes-
sionals (Brents & Hausbeck, 2005). At that time doctors urged the government to
regulate and license prostitution so that prostitutes would be required to take medical
exams. After World War I, the fear of disease forced the federal government to define
prostitution as both a physical and moral threat to the nation’s youth, particularly its
young military boys. This argument led to the closing of most red-light districts near
military bases (Brents & Hausbeck, 2005).
More recently, the AIDS epidemic has further marginalized HIV-positive prosti-
tutes and portrayed them as a threat to the heterosexual population. In some countries
(e.g. South Africa, Botswana, Ukraine, Belize, Brazil) the AIDS epidemic has reached
catastrophic levels because of unprotected sex (Avert.org, 2009, paras 7, 20, 27, 29).
Legitimacy for making prostitution illegal in this country partially extends from the
argument that this is an attempt to protect citizens from the spread of STDs. These
assumptions strictly consider the disadvantages of the sex trade. However, one must
also recognize that with most legislation there comes advantages and disadvantages.
The third assumption is that prostitutes are more vulnerable to crime and other
victimizations than the average female because of their social and exploited position.
This is assumed because they are exposed to greater risks of violence while working.
The prostitution policy arguing inherent violence was first conceptualized by
reformers during the first feminist movement (Brents & Hausbeck, 2005). Reformers
argued that the problem with prostitution was male lust, which lured innocent women
into a harsh life of prostitution. Once women became prostitutes, it was inevitable that
they would become subject to further monetary exploitation and physical abuse at the
hands of their pimps and customers. Abolitionists argue that the institution of prosti-
tution is itself inherently violent and that prostitutes are helpless victims, and therefore
need to be protected. Proponents of criminalization argue the only way to protect pros-
titutes from these types of dangers is to fight against the sale of sex for money (Brents
& Hausbeck, 2005). Some scholars argue it would not matter if decriminalization
occurred because in this society men are still at the top of all social classes, so whether
it be judges, pimps or johns, the exploitation will continue regardless (Baldwin, 1993).
The final assumption about prostitution laws is that prostitution disrupts community
order. Many view prostitution as socially corrosive behavior that if left unregulated
threatens the stability of communities. This fear of ‘structural violence’ leads to a
concern for an orderly civic life (Brents & Hausbeck, 2005). This fear leads to policies
that zone vices such as prostitution away from ‘respectable’ areas of a city. There is
also debate focused on the environmental effects of prostitution on communities, which
includes the potential harm to children, disorderly public conduct and harassment/
violence against women (Brents & Hausbeck, 2005). Proponents of this perspective
46 R. Hayes-Smith and Z. Shekarkhar

also argue that prostitution may lead to increased crime rates, which in turn hinders
economic development in the community. Moreover, increased police crackdowns lead
to other problems such as police chases, pervasive disrespect for the law and disorderly
conduct such as condom littering in gardens (Bovard, 1998).

Beneficiaries of the current construction

The social construction of prostitution laws in the manner described above debatably
benefits certain people and groups in society, while disadvantaging others. For
instance, these laws could benefit those in society who find the exchange of sex for
money morally reprehensible and a threat to the traditional family order. To illustrate
this point, Kingsley Davis (1937) argues that marriage is the most respectable sexual
institution in society. Thus, if sexual acts are indulged in for themselves, with no
intention of marriage, they are devoid of their primary function (reproduction) and
tend to be disapproved. Conversely, prostitution has been called the ‘world’s oldest
profession’ with St Augustine (a leader of Christian morals) even condoning it as a
necessity (Bullough & Bullough, 1996). According to Bullough and Bullough (1996),
the argument stemmed from the belief that male lust needed an outlet. Prostitutes
themselves were still considered sinners, but their existence protected the established
family order.
The aspect of who benefits from the criminalizing of prostitution is also docu-
mented in research literature. In particular, it appears plausible to argue that politi-
cians, the bourgeoisie (i.e. the wealthy and powerful) and men in general can benefit
from the current prostitution laws. Politicians utilize this legislation to appear ‘tough’
on crime by cracking down on prostitution. In one study Roby (1975) tracked the
recourse of a revised legislation piece on prostitution in New York. This legislation
included patrons of prostitution as offenders and included women or men as potential
prostitutes. The findings suggest that the legislation was utilized not in the manner it
was intended. First, there was obvious political pressure for crackdowns on prostitu-
tion that occurred, meaning there was an influx of arrests followed by a downward
trend. In addition, the legislation was meant to also include the ‘johns’ in punishment,
yet Roby found that only 6% of arrests during the influx of arrests were for patronizing
prostitutes and only 0.8% of the convictions were for patronizing. The Seattle
Women’s Commission (1995) also conducted a study comparing arrest and conviction
rates and found 1210 arrests of prostitutes and 228 arrests of johns. Similar to the
Roby study, 98% of the men arrested were charged but only 8% of these men were
convicted, while 62% of the women were charged and 12% were convicted (Seattle
Women’s Commission 1995; or Farley & Kelly, 2000).
The media frenzy also focused on prostitutes and not those who were attempting
to gain from their services. Roby (1975) found that very few ‘call girls’ were arrested
and generally these women were prostitutes to the rich (i.e. bourgeoisie). The findings
in this study support a Marxist view of the law in that the powerful took advantage of
the powerless. From a Marxist perspective this means that the group that is disadvan-
taged by prostitution being illegal is the prostitutes themselves or the powerless (i.e.
proletariat).
Prostitution has often been referred to as a victimless crime. It may be argued,
however, that prostitution is not a victimless crime at all because it leads to the phys-
ical and psychological abuse and exploitation of women (prostitutes are mostly
women) and their families (Farley & Kelly, 2000). In this sense, prostitution laws are
 Contemporary Justice Review 47

meant to provide protection for these vulnerable populations and the communities in
which they reside. However, the likelihood of violence and exploitation against pros-
titutes could be viewed as heightened by prostitution remaining illegal, because the
customer does not need to comply with the prostitute’s wishes if he chooses not to as
prostitutes have little recourse to legal protection (Barnard, 1993). This hidden popu-
lation has a high incidence of victimization (Shaver, 2005). Despite contradictory
evidence, research still shows a strong association with prostitutes and victimization
(Shaver, 2005). For example, rape is a common occurrence among prostitutes but is
commonly not reported (Barnard, 1993). Too often, there has been a tendency to
focus on the public health aspect, specifically HIV, ignoring the intrinsic violence of
prostitution (Farley & Kelly, 2000).
Women may ‘choose’ this work for financial reasons and keeping it a crime disad-
vantages the poor. It is still open to debate as to whether there is one common under-
lying causal reason for entry into prostitution (Bullough & Bullough, 1996). Farley
and Kelly (2000) argue that one reason is being a woman and another is being impov-
erished. Indeed, the main arguments for entry often indicate social/economic purpose
or a woman’s psychological issues, such as maternal deprivation or childhood sexual
abuse. Regardless of the reason for entering into sex work what is more of a truism is
that those who ‘choose’ this work are marginalized and endangered because their
health is at risk. If childhood sexual/physical abuse is the one main and common
reason for entry into prostitution then it is even more important to secure adequate
health services for these women, especially mental health services.
Another concern for prostitutes’ health is exemplified by those with drug abuse
and dependency issues who are not able to receive the needed medical and rehabilita-
tive treatment. Instead, this population is driven ‘underground’ with little knowledge
of how to protect themselves and others with whom they come into contact. With
research clearly delineating who is advantaged and disadvantaged by prostitution,
public health may not actually be protected by continued criminalization.
The laws in place also make different types of prostitution easier to detect than
others. For instance, street prostitution is easier to spot than escort prostitution, which
might lead to police targeting street prostitutes more frequently. The current prostitu-
tion laws penalize people, especially the poor, who want to use sex as a way to earn a
living. The laws stigmatize these ‘sex workers’ and hinder them from providing for
their families. It also penalizes ‘customers’ who want to pay for sexual acts for vary-
ing reasons (i.e. thrill-seeking, anonymity, no commitment wanted).

Flaws of the current construction

The current construction of prostitution laws can be argued to be flawed and premised
on assumptions that have not been satisfactorily validated. Lon Fuller (1967) has paid
much attention to the structure and inner logic of law (as cited in Lanza-Kaduce &
Bishop, 1986, p. 359). In his analysis of legal fictions, Fuller (1967) identifies three
problems with the fictions representing the law. First, he argues that fictions often lead
to conclusions that are morally appealing, yet they may produce mistakes that lead to
‘grave injustice’ (Lanza-Kaduce & Bishop, 1986, p. 360). Prostitution laws create a
grave injustice by stigmatizing sex workers and inhibiting their right to use their body
as a source of income. The laws may advocate protection for this population, but they
make prostitutes fearful to report crimes committed against them (Morash, 2005). The
laws also serve to alienate and isolate these workers. For example, even in Nevada
48 R. Hayes-Smith and Z. Shekarkhar

where prostitution is legal in counties with populations under 400,000, prostitution

houses are typically found in remote areas of towns (Brents & Hausbeck, 2005).
Moreover, even though it appears to be ‘right’ according to a moral order, the STD
problem could actually be worsened by the criminalization of sex work. According to
Masenior and Beyrer (2007, p. 1159), ‘there is a substantial body of peer reviewed
published studies suggesting that the empowerment, organization, and unionization of
sex workers can be an effective HIV prevention strategy and can reduce the other
harms associated with sex work, including violence, police harassment, unwanted
pregnancy, and the number of underage sex workers’. They conducted a thorough liter-
ature review to assess the current research on sex work. This work sprouted from the
Bush administration’s Anti-Prostitution Pledge as part of the President’s Emergency
Plan for AIDS Relief, which eradicated funding to developing countries with AIDS
epidemics if they had legalized or decriminalized prostitution (Masenior & Beyrer,
2007; Basu, 2005). This plan seems to have further marginalized women who choose
this line of work.
Fuller’s (1967) second assertion of legal fictions is that they serve ideological
functions by providing the superstructure that rationalizes lawmakers’ actions and by
using metaphors to appeal to the rest of society. The deterrence approach creates this
structure and any ‘rational’ attempt to eradicate prostitution must fall within the crim-
inal justice system because prostitution is considered a crime problem. Focusing
solely on public health is not rational because it does not deter criminal activity. For
the most part, the assumptions sustaining prostitution laws all focus on safety (for the
prostitute and the community). However, in some countries (e.g. India) where prosti-
tution is criminalized there exists corruption by the police of further exploiting pros-
titutes by extorting sex or money from them in exchange for their freedom (Bindman,
Doezema, & Anti-Slavery International, 1997). In Nevada, where prostitution is legal-
ized in certain counties, research has found that the laws are written to protect all those
involved (Brents & Hausbeck, 2005). Specifically, Brents and Hausbeck (2005) found
safety to be a main concern of the brothel owners, employees and state law enforce-
ment officials. Some of the mechanisms typically in place in these houses include:
specific guidelines for the negotiation process (between worker and customer), call
buttons and audio room monitoring, adhering to health regulations (mandatory
condom use, routine testing of STDs and HIV), and limiting out-of-brothel services
(Brents & Hausbeck, 2005).
Additionally, most brothel owners/employees interviewed said they had good rela-
tions with the police, and the police interviewed vouched to that statement (Brents &
Hausbeck, 2005). It was also indicated that the police rarely needed to be called out
to these places of business because the regulations in place effectively ensured every-
one’s safety. The brothel employees reported feeling a strong sense of safety working
indoors as opposed to being on the streets. Brents and Hausbeck conclude that regu-
lated brothels provide a safer working environment for sex workers than their illegal
counterparts. They note that legalized brothels provide the safest and most hygienic
outlet for the exchange of sexual favors for money, because it brings a level of public
scrutiny, official regulation and bureaucratization to brothels.
Evidence also exists that contradicts the assumption of public health safety guid-
ing prostitution laws. For instance, a study by the University of California Berkeley,
compared the health of legalized brothel workers in Nevada to jailed Nevada street
prostitutes and found that none of the brothel workers had AIDS, while 6% of the
street prostitutes were infected (Bovard, 1998). Through this type of government
 Contemporary Justice Review 49

regulation the public’s health is protected. Using in-depth interviews with sex work-
ers, researchers found that those who worked in a more controlled environment (i.e.
brothels), compared with the street, were less likely to be exposed to HIV (Pyett &
Warr, 1997). Morash (2005) states that studies (e.g. Ignasi, 1993) have shown that
prostitutes will also describe benefits of prostitution, such as good pay and indepen-
dence. Currently in the USA, the state of the economy is poor, making demand for
even low paying jobs high. Women who enter prostitution can independently better
their economic situation and may receive better pay than the average worker.
The third problem with legal fictions identified by Fuller (1967) is that they are
generally used to escape the consequences of a certain law (Lanza-Kaduce & Bishop,
1986). Early prostitution laws were only passed against those profiting, such as the
prostitute (Morash, 2005). Prostitution is illegal for pimps, johns and prostitutes now,
but according to Morash (2005) depending on the police, prostitutes are the primary
perpetrators of this crime. The johns generally escape, with the criminal justice
system still focusing on the women in prostitution (Farley & Kelly, 2000). As
Baldwin (1993) asserts, it took 60 years for johns to even feel the law being criminal-
ized; it will most likely take another 60 years before this law will actually get
enforced. The current construction still places blame on the prostitute, usually a
woman, who does not have the power to escape the law. The prostitute comes into
jail with tattered clothing, shivering, with no phone and physical marks such as scars,
whereas, the johns are more likely to be in business suits, with homes, telephones
and legal salaries (Baldwin, 1993).
Lanza-Kaduce and Bishop (1986) identify an additional aspect of legal fictions
which points to the inherent contradiction in the theory underlying criminal law. The
contradiction lies in the notion that a group creates law, but only an individual is
punished for violations of that law. They argue that the legal system ‘accepts social
defense but rejects social causation’ (p. 360). Simply, this means that, in the creation
of law, society’s interest is the main focus; however, when enforcing law the focus is
on an individual’s behavior, and not on society’s influence on that person. Both social
defense and social causation are captured in Davis’s (1937) explanation of the cause
of prostitution. It may be argued that prostitution has economic causes. Davis (1937),
however, argues that prostitution cannot be abolished by eliminating its economic
causes only. He suggests that, in a competitive system, if the salaries of working girls
go up, the supply of prostitution goes down. However, the demand for prostitutes is
still there so the wages of the remaining prostitutes goes up too, thus contradicting the
argument that prostitution has economic causes (Davis, 1937).

Alternative constructions
Because of the problems with current prostitution laws, an alternative construction
should be advanced to address their inadequacies. Morash (2005) asserts three
conceptualizations of prostitution: the prostitute, the prostitute as a victim and the sex
worker. These three conceptualizations can create an alternate construction of prosti-
tution. Criminalization is attached to the prostitute, decriminalizing to the prostitute as
a victim and legalizing to the sex worker. Reviewing each of these conceptualizations
from a public health standpoint reveals that legalization could be the better, more logi-
cal, construct.
The prostitute as an identity creates the view that this person is different than the
rest of society and therefore in need of control (Morash, 2005). This is closer to the
50 R. Hayes-Smith and Z. Shekarkhar

current construction and the criminal justice system is the main source of social
control for this marginalized population. The contradiction lies in the fact that one of
the assumptions behind criminalization is public health, yet public health is generally
not the main concern of the criminal justice system.
Viewing prostitutes as victims lends support to the decriminalizing argument
(Morash, 2005). The argument is couched in the aspect that many women enter pros-
titution because they lack alternatives to gain a more accepted living. Pimps and
customers should still receive punishment for their behavior, but those who prostitute
should not (Morash, 2005). This alternative construction could alleviate some of the
problems associated with prostitutes and public health. In Brazil, where prostitution is
decriminalized, a feminist program reached out and assisted sex workers and the
corresponding study found that 100% of the women interviewed were using condoms
with only 16.5% ever having contracted an STD (Chacham, Diniz, Maia, Galati, &
Mirim, 2007). Brazil is one of the countries that the USA denied aid to after imple-
menting the new guidelines behind the President’s Emergency Plan for AIDS Relief
(Masenior & Beyrer, 2007). This research is encouraging, but it was also found that
many of the women interviewed experienced abuse and had difficulty in gaining
adequate healthcare. The issue with this form of construction is that there still remains
a level of exploitation.
The alternative conceptualization of the sex worker attempts to broaden the view
of research and theory on prostitution (Morash, 2005). Based upon research there is
an indication that legalizing and thus regulating prostitution could assist in addressing
the public health issues more effectively. Soothill and Sanders (2004) argue for legal-
ization because of the abuse and exploitation of women. They assert that most people
would argue that prostitution is dangerous and those involved are jeopardizing their
health. A solution proposed is managed street zones with partnerships between the
government and police authorities. For example, under legalization, the state will
require prostitutes to be licensed and subject to routine medical screenings for
diseases. Any prostitute found to be ill will be unable to return to work until the prob-
lem is treated and, if it is untreatable, her license will be revoked.
The legalization of prostitution also addresses the assumption of violence against
prostitutes. If prostitution becomes a recognized, legal profession, sex workers will
not need to fear going to the police for help or to report a crime, thus possibly deter-
ring their customers from becoming abusive. Also, with legalized brothels, such as the
ones described by Brents and Hausbeck (2005) in Nevada, safety regulations in place
offer added protection for sex workers. If prostitution is legalized, the new laws will
help with community social order, the third assumption of the current laws. If prosti-
tution were no longer a crime, the police could focus more of their resources on other
crimes in a community.
Unlike the current laws that benefit the johns and politicians, prostitutes or sex
workers can benefit from the new regulations. The new laws would afford these work-
ers a level of security and protection they have not received under criminalization.
Prostitution would become a legitimized profession and sex workers would be able to
have more stable lives, without the fear of being prosecuted for their career choice.
This new stability would transfer over to the lives of their families and could poten-
tially free them of abusive relationships (i.e. with pimps, abusive johns, etc.). It is
important to speculate that with legalization and regulation there is still a chance for
exploitation of women, but this is an empirical question and arguably exploitation
already occurs.
 Contemporary Justice Review 51

Many more individuals could also benefit from changing the current legal stand-
ing of prostitution, such as, potential sex workers, johns and groups that support pros-
titution. These laws would also benefit anyone who has ever wanted to be a sex
worker or purchase services from a sex worker, but was deterred because of the
current laws. Another possible benefiting group is the johns, because they may be
less likely to contract diseases. Additionally, legalization would benefit groups such
as the North American Task Force on Prostitution, which fight for the rights of pros-
titutes and sex workers and believes in raising awareness of prostitution in order to
end its stigmatization.
There may also be other advantages to the legalization of prostitution, such as a
drop in the rape rate. A study conducted by Cundiff (2004) found that, if prostitution
were legalized in the USA, the rape rate would drop by 25% or 25,000 rapes per year
(ProCon.org, 2008b, para. 4). Victimization rates of prostitutes may also decline
because they would be provided with the opportunity to call the police and press
charges.
The problem with changing the laws lies in the power infrastructure that is
currently set up in the USA. Politicians tend to criminalize not decriminalize or legal-
ize in order to appear ‘tough on crime’. Without politicians legalization is not possi-
ble. As previously mentioned, politicians can benefit by prostitution remaining
criminalized through the use of crackdowns (Roby, 1975). Public health issues appear
on politician platforms and are not necessarily the most important items. In recent
years, appearing tough on crime has repeatedly taken the forefront in many political
campaigns. Healthcare remains an issue on democratic platforms, but the focus is on
universal healthcare for citizens, and if prostitutes are criminals then are they consid-
ered worthy of healthcare?
Besides politicians, the moral argument is strong and those opposed to prostitution
would fight its legalization. This group might include traditionalists who see prostitu-
tion as a threat to the institute of marriage and to the moral values underlying society.
These groups might blame the laws for making it easy for sex to be purchased, thus
devaluing sexual acts and their sacred role in the reproduction of society. Davis (1937)
argues that many, if not most, of the men who solicit prostitutes are married. If this is
true then married women may feel threatened by laws that legalize engaging in sexual
acts in exchange for money. Some feminists argue that legalization expands the sex
industry, increases child prostitution, does not promote women’s health and it is not
what sex workers want (Raymond, 2003).
Sex workers advocate decriminalization; the prostitutes’ rights movement
constructed a group in the 1970s called ‘Call Off Your Old Tired Ethics’ (COYOTE)
which continues to exist (Jenness, 1993). Sex workers in the USA and abroad advo-
cate prostitution being viewed as a normal business. They reject the current construc-
tion and feel blamed or scapegoated for public health problems, specifically AIDS,
brought on by a moral panic that it was not simply a homosexual issue anymore
(Jenness, 1993). While decriminalization seems a viable pathway, they still may not
be afforded the proper protection as a normal business.
Another potential disadvantage is that there may be fear, especially by religious
groups, that if prostitution were legalized that more people would take up this occu-
pation. That is an empirical question as well and one counterargument to this notion
is that simply legalizing prostitution does not erase the stigma or labels that are asso-
ciated with this type of work. Exotic dancing, for example, is a legal enterprise but it
still carries an extreme social stigma.
52 R. Hayes-Smith and Z. Shekarkhar

Strictly from the public health standpoint and in light of the pros and cons of both
the current prostitution laws and the legalization alternative, we argue that legaliza-
tion is the more ‘just’ option. The other assumptions and arguments such as the femi-
nist argument about the objectification of women’s bodies is difficult to tackle as
many feminists are split on this issue. For instance, not all feminists would argue that
prostitution involves the sexual and economic subordination, degradation and exploi-
tation of women and girls (Shrage, 1996). In addition, there is a built in contradiction
in the USA because pornography is legalized and is also sex for money. They are
both sexual behaviors between consenting adults with pornography being legal and
regulated.
It is undeniable that, because of criminalization, sex workers do not receive
adequate healthcare. Every member of society should be treated equally with adequate
social resources. Certain medical journals have taken a stand on this issue in favor for
decriminalization, arguing that prostitutes are people too (Goodyear, Lowman, Fisher,
& Green, 2005). The argument is that sex workers should not be treated like second-
class citizens. If entered into willingly, prostitution, as an occupation, provides work-
ing women with economic and physical freedoms. There is a lingering assumption in
our society that women who become prostitutes are forced into it by abusive partners
or pimps, or because they are runaways and in economic need. Although this may be
the case for some prostitutes, the current law penalizes those who wish to engage in
sexual acts in exchange for money because it is something they actually enjoy.
The argument against legalization is surrounded by further arguments of drug use,
human trafficking and other crime. The problem is that prostitutes do not cause these
crimes as much as they are victims of them (Goodyear et al., 2005). There are
complexities of victimization and drug use among street prostitutes, making it clear
that these individuals, mostly women, need both physical and mental healthcare. It has
also been argued that it is easier to keep children out of the industry and decrease drug
use if sex work is legalized (Masenior & Beyrer, 2007).
Another argument for legalizing prostitution is that it already occurs among the
upper class with arguably less likelihood for prosecution. If it were legalized and regu-
lated then the street prostitutes who have been historically targeted for arrest might
have better access to resources. Behind this point is research such as that by Roby
(1975), who found that call girls were less likely to be arrested than street prostitutes.
It is well known that in places like Hollywood an individual can secure an escort even
though it is illegal to prostitute in that state. Anecdotal evidence and a specific exam-
ple that leads us to speculate is the well-publicized case of Heidi Fleiss in 1993
(Hayes, in press).
Heidi Fleiss, aka the ‘Hollywood’s Madame’, secured high-priced call girls for
very powerful men and became very rich from this endeavor. She was finally arrested
after she refused to cooperate with the police and it can be speculated that other busi-
nesses such as hers are still in operation in Hollywood. This case made national news
and leaves us to wonder if it would have been so prominent if three issues were not
present: (1) she refused to cooperate with police requests for free services; (2) she
was getting rich and became too obvious to ignore; and (3) she is a woman. This last
point is key and is a question that cannot be easily answered with research as it is
difficult to gain research access to the underground population of high-priced call
girls.
The situation is a little different for men with power, as the publicized case of
former New York Governor Eliot Spitzer illustrates. On 10 March 2008 it was
 Contemporary Justice Review 53

publicly announced that the governor was involved with a prostitution ring in New
York, in which he requested services on more than one occasion. He later resigned and
no formal criminal charges were ever brought against him. Even though there was a
formal investigation instituted by the newly appointed governor, it centered on
whether Spitzer had used public funds to solicit services and nothing was done as
regards his actual physical involvement in those solicitations (Thornburgh, 2008).
The current laws assume that they have the best interest of this ‘vulnerable’ popu-
lation at stake. Yet, criminalization contributes to the stigma that prostitutes already
bear, making them more susceptible to hate crimes, discrimination and harassment.
New laws can be developed that protect this population while allowing them to exer-
cise their freedom to do as they choose with their body. Although government regula-
tion will not automatically eliminate the stigma attached to being a prostitute, these
sex workers will be protected, and in time that stigma may disappear. Even the World
Health Organization believes that prostitution should be decriminalized to ensure the
safety of such workers (Farley, 2004).
We agree with Davis (1937) when he contends that the institution of prostitution
performs a function that no other institution fully performs. According to Davis
(1937), the family is an institution of status whereas prostitution is contractual. By this
he addresses the nature of a contractual institution providing a paid service where one
can demand what one wants; within a family, the demands may not be met as a wife’s
defined behavior is often controlled by societal expectations. Interestingly, he argues
that, where the family is strong, there tends to be a well-defined system of prostitution.
Conversely, where there is a decrease in family, there is a decrease in prostitution and
a rise in sexual freedom. Traditionally, the institutional control of sex discourages
sexual intimacy in situations outside the family and prohibits sexual relations in
specific situations (Davis, 1937). Following Davis’s logic, we would argue that it is
the institution of marriage and family that causes prostitution to become a problem in
a society. Since it is not socially acceptable to have a ‘one-night stand’ or venture
outside a monogamous relationship, those with the power to influence or make the
laws will create laws that frown upon these types of actions (whether they agree with
them or not).

Conclusion
Throughout this critical analysis we have argued how the current assumptions under-
lying the criminalization of prostitution are at the least questionable and at the most
untrue, especially when examining the alternatives to criminalization. We conclude
that we may have identified a legal fiction according to the definitions imposed by
other legal scholars (Black, 2004; Lanza-Kaduce & Bishop, 1986; Maine, 1861).
The argument between decriminalization and legalization is complicated, but
certain truths can be argued. What can be concluded is that the current construction is
wrought with historical and cultural assumptions, lacks empirical evidence and
perpetuates the exploitation of women and children. Specifically, the public health
protection and deterrence assumptions can easily be argued against with empirical
evidence, albeit not public support. Overall, society sees prostitution as a threat to the
moral order and specifically to the family and the institution of marriage. It can be
argued that making prostitution legal is not going to change a faithful spouse into a
cheating spouse; it is only going to keep those who wish to solicit prostitutes from
going to jail. This fear should not necessarily keep prostitution illegal.
54 R. Hayes-Smith and Z. Shekarkhar

Those who argue that prostitution is an inherently violent profession fail to recog-
nize that so are many other professions, such as all forms of law enforcement and
security. The latter professions are legal and are not subjected to as much exploitation
as prostitution. The nature of women being subjugated in our society is a truism;
exploitation and harassment continue to occur in many occupations and will most
likely continue in prostitution if it is legalized. However, with women being the most
poverty-stricken class in this country, to criminalize an occupation which may be a
sole source of income for this population destroys a chance for independence. The
basic argument to a complicated question is that legalization, or at the very least
decriminalization, appears to be a more just argument based on the current construc-
tion, a legal fiction.

Note
1. According to extant research the term ‘sex work’ is more appropriate than prostitution (see
Masenior & Beyrer, 2007). Throughout this document the words prostitution and sex work
will be used interchangeably.

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