Regulation of prostitution in California

Tarunya Shankar

Editor’s note:

Prostitution and all activities related to it including solicitation, offering, and so on, have been deemed criminal offences by the State of California, with punishment extending upto 10 years and a fine. However, a large amount of citizens want this law to be scrapped and for prostitution to be legalized. This paper examines the reasons. Primarily, legalization would allow for protection of workers, employment, regular medical checkups, and stop the State from turning a blind eye to the injustices being suffered by the women in the trade. The State in turn cites health hazards, prevention of crimes associated with prostitution and the rampant spread of corruption as justification.

Referred law

“California Penal Code, S. 647(b) : Who solicits or who agrees to engage in or who engages in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, “prostitution” includes any lewd act between persons for money or other consideration.

Introduction

The state of California has currently deemed prostitution and all activities related to prostitution including solicitation of a prostitute, running of a brothel, offering to perform sexual activities in exchange for money, etc as criminal offences and are thus punishable with fines and imprisonment for a period ranging from thirty days to ten years. However, a large number of citizens of California have created a petition pleading with the government to pass a bill legalizing prostitution within the state. The preamble of the petition is as follows,

“Prostitution is the world’s oldest profession. It also one of the worlds most dangerous. The murder rate for an American prostitute is 204 for every 100,000, with the violent crime rate terribly higher even though most go unreported.
Legalizing prostitution will allow for the protection of these workers and allow for regular testing to prevent the spread of STD’s in America.”

Prostitution is a booming business with innumerable patrons and a clientele reaching the highest prongs of the social and political ladder. In countries where it is illegal, it is surrounded by the belief that payment for the enjoyment of another person’s company grants one full control over the escort’s body, and invariably leads to violence, human trafficking and rape. By claiming the profession to be illegal and turning a blind eye to the injustices against the women working in the trade, it becomes almost acceptable for others to violate their rights and liberties. Do enough justifications exist to prompt a revolution of the social protocol in the state of California, such that the sex industry becomes an accepted and thriving local business, among the ranks of veterinarian or mechanic?

The world’s oldest profession

Prostitution is the profession by which one person offers sexual favours in exchange for money. To efficiently and effectively analyse prostitution as a profession, in both an economic and social context, the history of the world’s oldest job must be looked into, and compared to the profession in contemporary times. Though certain countries strictly encourage monogamy, many countries approve of polygamy as a culture.[1] These cultures have opened the door for various other sexual and social preferences such as open marriages, linear families, etc, thus forging a certain open mindedness towards the prostitution and those engaging in the profession. This new contemporary mindset has led to the creation of the petition mentioned above. The idea behind striking down Section 647(b) of the California Penal Code, and legalizing prostitution is primarily being pushed by the belief that promiscuity is no longer a sin or a lifestyle that is strictly for those of immoral values.[2] “Instead of managing the problem through the medical and social interventions accompanied by regulation of the industry, critics of legalized prostitution would rather adopt prohibition and cold abandonment.”[3] This quote is particularly apt as prostitution takes place regularly and across the world, regardless of its illegality. It is, in fact, one of the most profitable industries for organized crime.[4] The women in the industry are constantly faced with violence and other trauma. It is not, as many presume it to be, “a victimless crime”. Those engaged in the sex trade are always victimized, often by those who are fighting for their cause. The profession is surrounded by stigma, cruelty and judgment, and the women workers suffer as a result.[5] It is believed that this suffering can be on some level reduced and managed by regulating the trade.

Reasoning behind criminalization of prostitution

The drafters of the California Penal Code have deemed prostitution to be a criminal activity, not merely because of the moral concern but also because of the various health issues that the profession inevitably leads to. The official reasons advanced by the Code’s drafters are :

(1) The prevention of venereal disease, and many other sexual transmitted diseases which up until recently were incurable and spread majorly through prostitution.[6]

(2)  The  prevention of  crimes  associated  with  prostitution, since the profession is largely run by organized crime, both its workers as well as consumers or rather, clients, are introduced to an environment that is conducive to violence and illegal narcotics and general criminal misdemeanor behavior. [7]

(3)  The prevention of official corruption, which is often a result of criminal activities, due to the lack of complainants or official victims.[8] With the limited legality of prostitution, the authorities often protect the offenders in exchange for a substantial bribe or personal payoff.[9]

(4) The protection of the family and society in general from the deleterious effects of commercialized sex.[10] This again is based on the belief that opening the market for sex as a commodity will severely harm the moral fibre of the citizens of the state, young and old alike, an expected result as it promotes the sale of sex.

The San Francisco Committee on Crime added the following:

(5) The protection of prostitutes, particularly minorities and juveniles, from those who would exploit them, including their pimps and their clients.[11] Due to the illegality of the profession, sex workers are forced to be fully dependent on their clients and anyone willing to provide them employment or lodging, such as motel owners, club owners, bar owners, etc.[12]

(6) The protection of the general public from offensive, visible activities of prostitutes.[13] The law in the California Penal Code was implemented and supported as the hope was that by forbidding prostitution to take place at the discretion of the workers, it would discourage them from soliciting clients on the streets and publically performing certain lewd activities.[14]

Effects of criminalization

Prostitution, despite being criminalized, is still a commonly seen profession. If history is any indication, prohibition of any commodity, and for the purpose of this analysis sex is the commodity in question, has shown a tendency to increase the consumption of the commodity. Take for example the prohibition of alcohol from 1920 to 1933. The government banned the production and sale of alcohol throughout the country and that resulted in bootlegging, when the production of homemade whisky and bathtub gin skyrocketed as many public officials themselves contributed to the sale of liquor in the black market.[15] This underground illegal alcohol led to an inordinate loss of tax dollars for the government as it became near impossible for the bootlegged liquor to be regulated in terms of quality, safety and distribution. In fact, the Bureau of Prohibition increased its spending to $14.3 million dollars on the prevention and prohibition of consumption of alcohol during this period, due to the difficulty of tracking the consumption.[16]

The reason behind the prohibition of alcohol, much like that behind the prohibition of prostitution, was the certainty that it would put to rest certain social issues created by consumption of the product, such as violence and crime.[17] However, it resulted in an increase of consumption and by criminalizing a popular trend, the number of criminals jumped to an all new high and the prisons across the country became packed.[18] It stands to reason that if the prohibition of alcohol, a product with much the same social and economic value as the service of prostitution, resulted in an increase in criminal activity and consumption of alcohol, then the prohibition of prostitution is likely to have similar results, if it has not already.

Benefits of legalization

Prostitution is one of the largest industries in the world, regardless of the criminal consequences. The cost of enforcing Section 647(b) of the California Penal Code, and locking up prostitutes and solicitors is incredibly high, over $3.2 dollars of tax money.[19] As a result, the courts as overcrowded with cases of solicitation and a large amount of manpower of the police force is spent on patrolling the streets for solicitation, manpower that could be spent on cases of domestic violence, robbery, etc.[20] Further, these efforts are essentially fruitless as the system of imprisonment for prostitutes resembles the catch-and-release system of Canadian fishing. If prostitution were to be regulated and managed, it would result in fewer prostitutes in the morgue. It would ensure that the only people entering into the profession are consenting adults, as many as 3 million teenagers have been forced into prostitution.[21]

Health and safety issues can be attended to as well, with the spread of STDs an all-time high. Prostitutes are susceptible to a number of sexually transmitted diseases such as syphilis, gonorrhea, chlamydia and herpes and the increase of persons infected with the aforementioned diseases can be avoided by monitoring the profession. Many studies have indicated a rise in the spread of a sexually transmitted disease called chancroid throughout the United States of America, though previously it was prevalent only in third world and underdeveloped or developing countries, and the cause for such a spread has been attributed to the rise of illegal prostitution.[22] The spread of Chancroid in Kenya was discovered towards the end of the 20th century, and the blame was the lack of awareness of sex workers to the existence of the disease, which lead to genital ulcers.[23] When this truth became evident, a number of measures were introduced to ensure the use of condoms by the workers of the trade and others suffering from STD’s over 80% of the projected area and the result was a substantial decline to 10% of chancroid related genital ulcers.[24] By monitoring the trade of the sex worker, the citizens of the country benefited largely as the spread of more than one STD, Chancroid being one example, reduced significantly.

Monitoring prostitution, a process promised by legalizing the profession, would reduce violence against the women (and men), working in the profession, allow them to peacefully leave the profession without any obstacles, and even improve their physiology and be given access to current medical marvels that fight the various diseases their profession exposes them to.[25] In India, over 15 million women have been forced into prostitution due to extreme poverty and exposed to the violence that comes with the trade.[26] They are often found working in groups in low income areas as well as business districts, but are left unprotected despite their existence being known to the authorities of the locality.[27] Perhaps this can be attributed to the ever existent greed of man for both money and power and the fast spreading chokehold of corruption on those in power. When the number of prostitutes per state rise as high as 100,000, legalizing prostitution were serve to provide employment for all of them and others who are trapped by the cycle of poverty and violence.

What would be the economic benefits of legalizing prostitution? From the early 19th century, the formation of redlight areas in certain sections of New York was on the rise, a booming and highly profitable industry regardless of the industry. This was due to the imbalance in the role of the genders, as immigrants flocked to the city. Prostitution was then, and continues to be now, a large and popular tourist attracting,[28] as can be seen by the masses flocking to Nevada, the only state where prostitution is legal and hence christened Sin City by its visitors and flamboyant patrons. As more and more women entered into the trade with the hope that it would release them from a life of poverty and unemployment, a whole new market was created with only one product, namely, sex, and that product became largely in demand.[29] In fact, in the nineteenth century, far from being stigmatized, the women in the business accumulated wealth and prestige, many even married their more affluent clients and settled down while others invested their earnings in furthering their business.

An infamous worker of the sex trade named Maria Williamson is one such woman, whose story is a clear example. She worked as a prostitute for a number of years and then invested $3500 dollars, equivalent to $55,438 dollars according to the current value of the dollar, in purchasing a building that she subsequently turned into a brothel, and with the profit from that brothel, she opened five more which resulted in a turnover of $10,000 a year, which is equal to $171,919 presently.[30] The story of Julia Brown is similar, as she too rebelled against the social norms and was referred to across the country as “Princess Julia”, the women under her catering exclusively to the elite.[31] In the 19th century, the sex industry also offered a market for well-off and elite men could invest their money for a high profit.[32] This role, in contemporary times, has been filled by the government, who, on receiving the income tax of the households employed in the business of selling sex as well as the various other fees and charges, invests the returns from the industry in the industry itself. Sweden’s government, for example, invested over 200 million kroner in attempting to introduce social open-mindedness and France, where the government has introduced strict registration processes to guarantee the safety of the women, which in turn will bring more persons into the profession, thereby increasing the government income, and the cycle repeats itself.

Unemployment is currently at an all-time high, with the United States of America now saturated with workers from all across the world but lacking in professions that do not require any merit, experience or skill. The foremost argument for legalizing prostitution is the creation of a new sector of employment that provides a legitimate income to the relevant households and can contribute to the tax receipts of the government.[33] Arguments have been made that though the employment rates will increase, as will the receipt of taxes, they do not directly lead to or guarantee economic growth.[34] However, the economy of Nevada, where prostitution is legal, has benefitted greatly from the profession, the government income being over $10 million dollars for the 1994-1995 fiscal year.[35] This is because of the necessity of brothels to purchase state business licenses, as well as liquor fees, land taxes and various other charges that allow them to function successfully.[36]

On the other hand, in Thailand, where prostitution is illegal but at the same time partly regulated, the industry, though contributing to profits in the millions, is linked to a number of dangerous illegal activities such as the distribution and use of narcotics, human trafficking, and money laundering.[37] Trafficking is a booming business, with Asian prostitutes being sold for $20,000 per person, as if commodities, across the world, while African women go for over $8000 dollars in Belgium.[38] Russian prostitutes are sold most commonly in Germany and England, for seven and a half thousand dollars, most of which is pocketed by the trafficker.[39] The illegality of prostitution leaves much room for the entrance of various units of organized crime to take advantage of the hefty profits to be gained, and as stated in the 10th United Nations Report,[40]

“With the stakes so high, organized crime has stepped in to take its share. Of about 15,000 Russian and Eastern European women working in Germany’s red-light districts, many work in brothels, sex clubs, massage parlours and saunas under the financial control of criminal groups from the Russian Federation, Turkey and the former Yugoslavia, the IOM survey states. Asian organized crime groups directly control about 70 per cent of the sex industry in the United States, according to Schiavi.”

In France, prostitution is strictly regulated and all women working in the trade are to be officially registered and processed to ensure they are healthy and continue to be so, as well as establish their respective motives for joining the profession, and other relevant details of their lives, the idea being to remove the stigma and secrecy from the profession and bring it to public view.[41] Similarly in Netherlands, prostitution has been legalized and its capital, Amsterdam, is the residence and place of work for over 40% of the twenty thousand sex workers in the country, and they, much like the workers in France, must be officially registered with the Chamber of Commerce of the country and pay income taxes to the government and, as required in Nevada for the running of the brothels, liquor licenses and building requirements.[42] In fact, a 2007 study showed that the market for sex in the Netherlands significantly reduced after the legalization of prostitution and the number of teens recruited to the profession was at its lowest.[43]

Conclusion

Prostitution is infamously known as the oldest profession on earth and one of the most profitable ones regardless of its legality or lack thereof in many countries. It is a profession that is often shrouded in secrecy and violence and in many localities, including California, has brought its citizens together to petition voraciously for the legalization of it. Statistics show that prostitution is prevalent all over the world, in every country and has existed for centuries, though to begin with it was a profession for the impoverished and unemployed, which till only a few decades ago was localized to the supposed weaker sex, the women. Now the profession is much larger and in many countries regulated and has contributed largely to the economy of the respective country. It has created a new sector of employment as well as a new product for the market and is beneficial to the individual in terms of income.

However, it can be presumed that by legalizing the trade, it encourages the society to believe that selling sex is an acceptable way of life, which will inevitably lead to more persons in the trade, men and women alike, and the result will be that efficient regulation will become difficult, near impossible. There is the possibility that the violence, after initially reducing, will rise rapidly once the profession becomes overpopulated and can no longer be controlled on any level. Though legalizing the profession would serve to protect the women, to a large extent as well as supply the government and certain households with a limited income that previously consisted of illegal, or “black” money, it cannot conclusively be said that it would continue to serve its multiple purpose in the long run. But, it must be recognized that the current state of prostitutes in California is abysmal and it can only stand to improve the living and working conditions of the women at the moment for the profession to be legalized and registered.

Edited by Neerja Gurnani

[1] M Liberator, ‘Legalized Prostitution, Regulating The Oldest Profession,’ (www.liberator.net 2005) <http://www.liberator.net/articles/prostitution.html> accessed 12 February 2013

[2] T McCormick, ‘California State Legislature: Legalize Private Consensual Regulated and Taxed Sex Work’ (www.change.org ) <http://www.change.org/petitions/california-state-legislature-legalize-private-consensual-regulated-and-taxed-sex-work> accessed 12 February 2013

[3] Supra note 1.

[4] S Y Cho, A Dreher, E Neumayer, ‘Does Legalized Prostitution Increase Human Trafficking’ [2012] DLPIHT 3, 8

[5] T Bien-Aime, Statement : ‘This House Believes That Prostitution Should Be Legalized’ (www.economist.com, 9 September 2009) <http://www.economist.com/debate/days/view/576> accessed 13 February 2013

[6] M Anne Jennings, ‘The Victim as Criminal: A Consideration of California’s Prostitution Law, California Law Review, Volume 64, Issue 5, Article 5’ [9-30-1976] TVC : ACOCPL 1235, 1242

[7] Ibid, p.1244.

[8] Ibid, p.1245.

[9] Ibid.

[10] Ibid, p.1246.

[11] Ibid.

[12] Ibid.

[13] Ibid, p.1247,

[14] Ibid.

[15] N Nixon, ‘Bootlegging In Illinois: Bathtub Gin And The Whole Shootin’ Match, Illinois Periodicals Online (NIU),’ (www.lib.niu.edu 2001) <http://www.lib.niu.edu/ipo/ic010410.html> accessed 17 February 2013

[16] M Thornton, ‘Policy Analysis: Alcohol Prohibition Was A Failure, Auburn University (CATO Institute)’ (www.cato.org 17-7-1991) <http://www.cato.org/pubs/pas/pa-157.html> accessed 17 February 2013

[17] Ibid.

[18] Ibid.

[19] S.F Task Force, ‘Costs of Prostitution Law Enforcement in San Francisco, 1994, Prostitution Final Report 1996’ (www.bayswan.org 1996) <http://www.bayswan.org/5cost.html> accessed 18 February 2013

[20] Supra note 1, Benefits of Legalization.

[21] N Walker, ‘Prostituted Teens: More than a Runaway Problem. Michigan Family Impact Seminars, Briefing Report No. 2002-2’ (http://www.familyimpactseminars.org 2002) <http://www.familyimpactseminars.org/s_mifis06report.pdf> accessed 18 February 2013

[22] Schmid, Sanders, Blount & Alexander, ‘Chancroid in the United States, Reestablishment of an Old Disease, JAMA’ [1987] CUS, ROD 258(22), 3265-8

[23] R Steen, ‘Public Health Reviews :Eradicating Chancroid’ [2001] PHR : EC 818, 826.

[24] Ibid.

[25] E Rehn, E Johnson Sirleaf, ‘Women, War and Peace, The Independent Experts’ Assessment on the Impact of Armed Conflict on Women and Women’s Role in Peace-building’ [2002] WWP 1, 33

[26] Azad India Fndn., ‘Prostitution In India’ (www.azadindia.org 2010) <http://www.azadindia.org/social-issues/prostitution-in-india.html> accessed 25 February 2013

[27] Ibid.

[28] I Bastiens, ‘Is Selling Sex Good Business? : Prostitution in Nineteenth Century New York City, Undergraduate Economic Review’ [2007] UER 3, 8

[29] Ibid.

[30] T E Vitchers, ‘Revolting Bodies, Female Body Politics and Prostitution in Nineteenth Century New York and London, Williams College ‘ [19-4-2010] RB 7, 40

[31] Ibid, p.41.

[32] Ibid, p.42.

[33] J Poor, ‘CNN: Legalized Prostitution Could Help San Fran Economy’ (http://newsbusters.org 23-10-2008) <http://newsbusters.org/blogs/jeff-poor/2008/10/23/cnn-legalized-prostitution-could-help-san-fran-economy#ixzz2PuZ0e0rG> accessed 19 February 2010

[34] Ibid.

[35] Gormley L, ‘Prostitution Pumps Millions Into Nevada’s Economy, Metro Archives’ (http://www.jour.unr.edu 11-12-1998) <http://www.jour.unr.edu/outpost/community/archives/com.gormley.prostitute.html> accessed 20 February 2013

[36] Ibid.

[37] UN Dept. Of Public Information, ‘Tenth United Nations Congress On The Prevention Of Crime And the Treatment Of Offenders, New Global Treaty to Combat “Sex Slavery” of Women and Girls’ (www.un.org 2000) <http://www.un.org/events/10thcongress/2098.htm> accessed 20 February 2013

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] W Acton, P Frye, ‘Prostitution in France, 2nd Edition.’ [1857] PIF 4, 97-107

[42] J Cruz, S V Iterson, ‘Humanity In Action, The Audacity of Tolerance: A Critical Analysis of Legalized Prostitution in Amsterdam’s Red Light District’ (www.humanityinaction.org 2013) <http://www.humanityinaction.org/knowledgebase/312-the-audacity-of-tolerance-a-critical-analysis-of-legalized-prostitution-in-amsterdam-s-red-light-district> accessed 21 February 2013

[43] Supra note 5, statement by, Sienna Baskin, Co-director of the Sex Workers Project at the Urban Justice Centre.

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