Prostitution is illegal in 49 of the 50 states, Nevada being the sole exception. But, some people believe that paid sex is so entrenched in our society that the focus should not be prosecuting it, but rather keeping it clean and safe. Others argue that it’s impossible to strip prostitution of exploitation, harassment, and violence, and that outright prohibition is the only tenable approach.
Is Prostitution Any of the Government’s Business?
In 2003, the Supreme Court acknowledged an adult's right to engage in private, consensual sex, by ruling that adults have a constitutional right to engage in private, homosexual conduct if they so choose. (Lawrence v. Texas, 539 U.S. 558 (2003).) Although the Supreme Court was careful to state that its ruling didn’t apply to prostitution, some argue that this ruling should be extended—that private, consensual sexual conduct should be allowed even where money changes hands.
Advocates for legalized prostitution argue that when sex-for-money involves consenting adults, it is akin to any other contractual relationship: It is the exchange of money for a service. The Netherlands endorsed this view when it legalized prostitution. It recognized a woman’s right to sell sex as an aspect of individual autonomy.
Another argument in support of legalizing or decriminalizing prostitution rests on the claim that prostitution laws are enforced sporadically and ineffectively. Despite laws providing for the punishment of both, prostitutes are penalized far more often than their customers.
Legalization vs. Decriminalization
Those who oppose the criminalization of prostitution typically advocate one of two approaches: legalization (which involves regulation) or decriminalization (no regulation). Legalization is what Nevada practices: the direct regulation of prostitution by the government. This regulation may include an array of methods, from zoning requirements and advertising restrictions to mandatory tests for sexually transmitted diseases. (For more information on Nevada's prostitution laws, see Prostitution, Pimping, and Pandering Laws in Nevada.)
Decriminalization is the removal of laws and regulation; under this model, prostitution is treated just like any other occupation. Sweden takes a partial decriminalization approach, under which the sale of sex is not illegal, but its purchase is. New Zealand, on the other hand, has decriminalized both the purchase and sale of sexual activity. Critics of decriminalization point to studies regarding New Zealand’s sex trade that show that violence against sex workers has persisted in that country.
Regardless of the methods they endorse, proponents of decriminalization and champions of legalization usually share the same goal: guaranteeing sex workers’ civil rights and providing for their safety and social equality.
Many proponents of a legal sex trade believe that government must actively regulate it in order to avoid—or limit—accompanying social problems. They acknowledge that states have an interest in suppressing sexually transmitted diseases, protecting minors who might otherwise become involved in prostitution, and preventing forms of crime associated with prostitution. Those who would legalize prostitution argue that their approach would achieve these goals while improving sex workers’ lives through police protection, unionization, and destigmatization.
Even where prostitution is currently allowed—that is, in Nevada—it is closely regulated and subject to restrictions that don’t apply to other forms of commerce. Prostitution is illegal in the state’s largest counties, while the remaining counties have the choice of prohibiting it. And in those counties where prostitution is legal, a restrictive licensing scheme applies. Moreover, Nevada imposes stringent advertising regulations.
Nevada brothels cannot advertise in counties in which the sale of sexual services has been prohibited. In counties where prostitution is allowed, they cannot advertise in public theaters or on public streets or highways. Advertisers have challenged these laws on the grounds that they infringe upon the First Amendment right to free speech—in this case, free commercial speech. But courts have held that Nevada’s restrictions on prostitution advertising don’t violate the First Amendment. Likewise, a federal appeals court has ruled that the state’s interest in preventing the commercialization of sex trumps the free-speech interests of advertisers.
(For more information on Nevada's prostitution laws, see Prostitution, Pimping, and Pandering Laws in Nevada.)
One Solution: Punish only the Patrons
In 1999, Sweden enacted a law that decriminalized the sale of sex, but kept its purchase illegal. Many feminists advocate this model, while others argue that full decriminalization—for both sellers and buyers of sex—is more logical. Those who support the Swedish system point to studies indicating that prostitutes by and large do not choose the sex trade of their own volition. They argue that prostitution is inimically coercive. To them, confining punishment to patrons will help end prostitution and sex trafficking without persecuting sex workers.
Some have credited the Swedish law with a decrease in demand for prostitution and reduction in the number of people involved in the sex trade. There have been proposals to mimic the Swedish model in the United States, but by all accounts the American decriminalization movement has been gradual at best.