Prostitution and the law



The position of prostitution and the law varies widely worldwide, reflecting differing opinions on victimhood and exploitation, inequality, gender roles, gender equality, ethics and morality, freedom of choice, historical social norms, and social costs and benefits.

In Western criminology, the research and analysis of prostitution usually falls within public order issues.

The legal status of prostitution varies from country to country, from being a legal activity considered a profession to being punishable by death. In some jurisdictions prostitution is illegal. In other places prostitution itself (exchanging sex for money) is legal, but surrounding activities (such as soliciting in a public place, operating a brothel, and pimping) are illegal. In other jurisdictions prostitution is legal and regulated.

Overview
Prostitution tends to be contentious in the communities in which it exists. The religiously inclined may be morally outraged by its presence, viewing it as a threat to the moral codes laid down in their scriptures. Others however, are merely curious or view it as a necessary evil. Many feminists and women's organizations are opposed to prostitution, as they see it as a form of exploitation of women and male dominance over women, and as a practice which is the result of the existing patriarchal social order; the European Women's Lobby - the largest umbrella organization of women’s associations in the European Union, which works to promote women’s rights and equality - has  condemned prostitution as "an intolerable form of male violence".

More generally, governments have the duty of safeguarding public health and order. In this, the Wolfenden Committee Report (1957) which informed the debate in the UK stated what many consider to be the most appropriate principle for governments to observe:
 * [the function of the criminal law is] to preserve public order and decency, to protect the citizen from what is injurious or offensive and to provide safeguards against the exploitation and corruption of others, ...It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular code of behaviour, further than is necessary to carry out the purposes of what we have outlined.

Finally, the United Nations in its Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others favors abolitionism, which criminalises the activities of those seen as exploiting or coercing prostitutes (so-called "pimping" and "procuring" laws) while leaving prostitutes themselves free from regulation. The Convention states that "prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person".

Legal themes
Legal themes tend to address four types of issue: victimhood (including potential victimhood), ethics and morality, freedom of the individual, and general benefit or harm to society (including harm arising indirectly from matters connected to prostitution).

General
Most modern researchers identify both primary victims, the prostitutes themselves, and also secondary victims, among the family, friends and, sometimes, the clients. In most cases, prostitution is not a rational and calculated choice: structural forces (such as poverty, drugs, a history of childhood abuse etc.) or  human agency (pimps, human traffickers) are generally the reasons for which the prostitutes engage in this practice. Furthermore, the practice of prostitution itself leads to severe negative long term effects on the prostitute. Contemporary views on prostitution differ from early ones, as historically prostitution was considered more or less victimless, the only crime committed being the offending of morals.

People who want prostitution to be legalized argue that prostitution is a consensual sex act between adults and a victimless crime, thus the government should not prohibit this practice.

Anti-prostitution advocates hold that the victims are the prostitutes themselves, arguing that prostitution is a practice which leads to serious psychological and physical long term effects for the prostitutes. They also argue that the act of prostitution is not by definition a fully consensual act, as the prostitutes are forced to sell sex, either by somebody else or by the unfortunate circumstances of their lives (such as poverty, lack of opportunity, drug addiction, a history of severe childhood abuse or neglect etc.): "In the academic literature on prostitution there are very few authors who argue that valid consent to prostitution is possible. Most suggest that consent to prostitution is impossible or at least unlikely." . "(...) most authors suggest that consent to prostitution is deeply problematic if not impossible (...) most authors have argued that consent to prostitution is impossible. For radical feminists this is because prostitution is always a coercive sexual practice. Others simply suggest that economic coercion makes the sexual consent of sex workers highly problematic if not impossible...".

In 1999, Sweden became the first country to make it illegal to pay for sex, but not to be a prostitute (the client commits a crime, but not the prostitute). A similar law was passed in Norway (in 2009) and in Iceland (in 2009).

Economic and health issues
It is argued that street prostitution is not victimless as it may damage the reputation and quality of life in the neighbourhood and diminish the value of property. Maxwell (2000) and other researcher have found substantial evidence that there is strong co-occurrence between prostitution, drug use, drug selling, and involvement in non-drug crimes, particularly property crime. Because the activity is considered criminal in many jurisdictions, its substantial revenues are not contributing to the tax revenues of the state, and its workers are not routinely screened for sexually transmitted diseases which is dangerous in cultures favouring unprotected sex and leads to significant expenditure in the health services. According to the Estimates of the costs of crime in Australia, there is an "estimated $96 million loss of taxation revenue from undeclared earnings of prostitution".

Human trafficking
Sigma Huda, a UN special reporter on trafficking in persons said "For the most part, prostitution as actually practiced in the world usually does satisfy the elements of trafficking."

Internationally, the most common destinations for victims of human trafficking are Thailand, Japan, Israel, Belgium, the Netherlands, Germany, Italy, Turkey and the US, according to a report by the UNODC (United Nations Office on Drugs and Crime).

The major sources of trafficked persons include Thailand, China, Nigeria, Albania, Bulgaria, Belarus, Moldova, and Ukraine.

Prostitution laws have been argued to affect trafficking flows.

Gender
Considerable diversity and stratification of experiences are available within prostitution: from straight and gay prostitutes on the street to elite escort services. For these purposes, sexual services may be offered by biological men and women, and the transgendered and transvestite. A recent study by TAMPEP, on the prostitute population from Germany, estimated that 93% of prostitutes were female, 3% transgender and 4% male.

Arrest statistics show that in those states where buying and selling sex are equally illegal, the tendency is to arrest the service provider and not the customer, even though there are significantly more customers than sellers. Thus, it is a fact that more women than men are arrested, and the true extent of the crime is underreported. James (1982) reports that, in the United States, the arrest ratio of women to men was 3:2, but notes that many of the men arrested were the prostitutes rather than the clients.

Developed v. developing countries
"By 1975, Thailand, with the help of World Bank economists, had instituted a National Plan of Tourist Development, which specifically underwrote the sex industry .. . . Without directly subsidising prostitution, the Act [the Entertainment Places Act] referred repeatedly to the personal services' sector. According to Thai feminist Sukyana Hantrakul, the law 'was enacted to pave the way for whorehouses to be legalised in the guise of massage parlours, bars, nightclubs, tea houses, etc." See Aarons Sach," A prostitute at nine," The Times of India Sunday Review, January 22, 1995. With particular reference to children, the United Nations Convention on the Rights of the Child creates specific obligations. Article 34 stipulates that:
 * State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, State Parties shall, in particular, take all appropriate national, bilateral, and multilateral measures to prevent:
 * The inducement or coercion of a child to engage in any unlawful sexual activity.
 * The exploitative use of children in prostitution or other unlawful sexual practices.
 * The exploitative use of children in pornographic performances and materials.

As of 2000, twenty four countries had enacted legislation criminalising child sex tourism, e.g. in Australia, the Crimes (Child Sex Tourism) Amendment Act 1994 covers a wide range of sexual activities with children under the age of 16 committed overseas. Laws with extraterritorial application are intended to fill the gap when countries are unwilling or unable to take action against known offenders. The rationale is that child-sex offenders should not escape justice simply because they are in a position to return to their home country. There is little research into whether the child sex tourism legislation has any real deterrent effect on adults determined to have sex with children overseas. It may be that these people are simply more careful in their activities as a result of the laws. There are three obvious problems:
 * the low level of reporting of sexual offences by child victims or their parents;
 * the poverty which motivates the decision to survive economically through the provision of sexual services; and
 * the criminal justice systems which, in the Third World country may lack transparency, and in the First World country may involve hostile and intrusive cross-examination of child witnesses with no adult witnesses to corroborate their evidence.

Prohibition arguments
In most countries where prostitution is illegal, the prohibition of the sex trade is subject to debate and controversy among some people and some organizations, with some voices saying that the fact that prostitution is illegal increases criminal activities and negatively affects the prostitutes.

Those who support the prohibition of prostitution argue that keeping prostitution illegal is the best way to prevent abusive and dangerous activities (child prostitution, human trafficking etc.). They argue that a system which allows legalized and regulated prostitution has very negative effects and does not improve the situation of the prostitutes; such legal systems only lead to crime and abuse: many women who work in licensed brothels are still controlled by outside pimps; many brothel owners are criminals themselves; the creation of a legal and regulated prostitution industry  only leads to another parallel illegal industry, as many women do not want to register and work legally (since this would rob them of their anonymity) and other women can not be hired by legal brothels because of underlying problems (e.g., drug abuse); legalizing prostitution  makes it more socially acceptable to buy sex, creating a huge demand for prostitutes (both by local men and by foreigners engaging in sex tourism) and, as a result, human trafficking and underage prostitution increase in order to satisfy this demand.

In Netherlands, at the end of 2008, six people were convicted in what prosecutors said was the worst case of human trafficking ever brought to trial in the Netherlands. Experts said the case could have an impact on the Dutch prostitution policy. Jan van Dijk, an organized crime and victimology expert at the International Victimology Institute Tilburg of Tilburg University, said "The honeymoon of the new prostitution legislation is over; we are really reconsidering whether we're on the right track". In Amsterdam, in the last few years, a significant number of brothels and prostitution "windows" have been closed because of suspected criminal activity, and in 2009 the Dutch justice ministry announced plans to close 320 prostitution "windows" from Amsterdam.

Regulated prostitution
In some countries (or administrative subdivisions within a country) prostitution is legal and regulated. In these jurisdictions there is a specific law which explicitly allows the practice of prostitution if certain conditions are met (as opposed to the places where prostitution is legal only because there is no law to prohibit it).

In countries where prostitution is regulated, the prostitutes may be registered, they may be hired by a brothel, they may organize trade unions, they may be covered by workers protection laws, their proceeds may be taxable, they may be required to undergo regular health checks, etc. The degree of regulation, however, varies very much by jurisdiction.

Such approaches are taken with the stance that prostitution is impossible to eliminate, and thus these societies have chosen to regulate it in an attempt to reduce the more undesirable consequences. Goals of such regulations include controlling sexually transmitted disease, reducing sexual slavery, controlling where brothels may operate and dissociating prostitution from crime syndicates.

In countries where prostitution is legal and regulated it is usual for the practice to be restricted to particular areas.

In countries where prostitution itself is not illegal, but associated activities are outlawed, prostitution is generally not regulated.

Mandatory health checks
Not all countries with regulated prostitution require mandatory health checks (because such checks are seen as too intrusive, a violation of human rights and a discriminatory policy, since the clients don't have to be subjected to them).

A few jurisdictions, however, require that prostitutes undergo regular health checks for sexually transmitted diseases.

In Nevada, state law requires that registered brothel prostitutes be checked weekly for several sexually transmitted diseases and monthly for HIV; furthermore, condoms are mandatory for all oral sex and sexual intercourse. Brothel owners may be held liable if customers become infected with HIV after a prostitute has tested positive for the virus. Prostitution outside the licensed brothels is illegal throughout the state; all forms of prostitution are illegal in Las Vegas (and Clark County, which contains its metropolitan area), in Reno (and Washoe County), in Carson City, and in a few other parts of the state (currently 8 out of Nevada's 16 counties have active brothels, see Prostitution in Nevada).

Labor laws
The regulation of prostitution is problematic because standard labor regulations cannot be applied to prostitution. The typical relation between employer and employee where the employer is in a position of authority over the employee is - in the case of prostitution - viewed by many as contrary to the physical integrity of the prostitute. It is forbidden to order a person to have sex on a given moment at a given place. Many sex operators also do not want to pay social security contributions which comes with paid labor. Therefore many prostitutes - in countries where prostitution is regulated - are officially listed as independent contractors. Sex operators typically operate as facilitators only and do not interfere with the prostitutes.

Status of unregulated prostitution
The existence of regulated prostitution generally implies that prostitution is illegal outside of the regulated context.

For example, Nevada has laws against engaging in prostitution outside of licensed brothels, against encouraging others to become prostitutes, and against living off the proceeds of a prostitute.

Summary of legal status
Below there is a presentation of the legal status of prostitution around the world, as reported by the 2008 Country Reports on Human Rights Practices, which was released in 2009.

Prostitution illegal
In these countries prostitution itself (exchanging sex for money) is illegal. The punishment for prostitution varies considerably: in some countries, it can incur the death penalty, in other jurisdictions, it is a crime punishable with a prison sentence, while in others it is a lesser administrative offense punishable only with a fine.


 * Africa: Algeria, Angola, Botswana, Burundi, Cameroon, Chad, Comoros, Republic of Congo, Djibouti, Egypt, Eritrea, Gabon, The Gambia, Ghana, Guinea, Kenya, Liberia, Mauritania, Mauritius, Morocco, Niger, Nigeria, Rwanda, Somalia, South Africa, Sudan, Swaziland, Tanzania, Uganda, Zambia, Zimbabwe


 * Asia: Afganistan, Bahrain, Burma, Brunei, China, Iraq, Iran, Japan (illegal, but no judicial penalty is defined, see Prostitution in Japan), Jordan, Kuwait, Laos, Maldives, Mongolia, North Korea, Oman, Pakistan, Philippines, Qatar, Saudi Arabia, South Korea, Sri Lanka, Syria, Taiwan, Tajikistan, Thailand, Turkmenistan, United Arab Emirates, Uzbekistan, Vietnam, Yemen.


 * Europe: Albania, Andorra, Azerbaijan, Belarus, Bosnia, Croatia, Georgia, Iceland, Liechtenstein, Lithuania, Macedonia, Malta, Moldova, Monaco, Montenegro, Norway, Romania, Russia, San Marino, Serbia, Slovenia, Sweden, Ukraine. In Sweden, Norway and Iceland it is illegal to pay for sex (the client commits a crime, but not the prostitute)


 * North America: Antigua and Barbuda, The Bahamas, Barbados, Dominica, Grenada, Haiti, Jamaica, Saint Kitts and Nevis, Saint Lucia, Trinidad and Tobago, United States (no federal law, but illegal in all states except Nevada, where some rural counties license brothels, see Prostitution in the United States).


 * Oceania: Fiji, Samoa, Marshall Islands, Nauru, Palau, Papua New Guinea, Solomon Islands, Tuvalu, Vanuatu, The Federated States of Micronesia.


 * South America: Guyana, Suriname.

Prostitution legal, but procuring illegal
In these countries there is no specific law prohibiting the exchange of sex for money, but in general most forms of procuring are illegal. These countries also generally have laws against soliciting in a public place (e.g., a street) or advertising prostitution, making it difficult to engage in prostitution without breaking any law.


 * Africa: Burkina Faso, Central African Republic, Cote d'Ivoire, Ethiopia, Madagascar, Malawi, Sierra Leone.


 * Asia: Hong Kong, India, Israel, Kazakhstan, Kyrgyzstan, Macau, Singapore, Timor-Leste.


 * Europe: Armenia, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Republic of Ireland, Italy, Luxembourg, Poland, Portugal, Slovakia, Spain, United Kingdom


 * North America: Belize, Canada, Costa Rica, Cuba, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua.


 * Oceania: Australia (in western states and Tasmania, see Prostitution in Australia), Kiribati, Tonga.


 * South America: Argentina, Brazil, Chile.

Prostitution legal and regulated
In some countries prostitution is legal and regulated, though activities like pimping and street-walking are generally illegal. The degree of regulation varies by country, for example, not all countries require mandatory health checks (because such checks are seen as too intrusive, a violation of human rights and discriminatory, since the clients aren't subjected to them).

In some of these places the regulations are very tight (e.g., Nevada), while other places (e.g., New Zealand) are very loosely regulated.


 * Africa: Côte d'Ivoire, Senegal
 * Asia: Lebanon
 * Europe: Austria, Germany, Greece, Hungary, Latvia, Netherlands, Switzerland, Turkey
 * North America: Mexico, Panama, United States (only in some rural counties of Nevada, see Prostitution in Nevada)
 * Oceania: Australia (in most eastern states, see Prostitution in Australia), New Zealand
 * South America: Bolivia, Colombia, Ecuador, Paraguay, Peru, Uruguay, Venezuela

Australia
In Australia, prostitution laws vary from State to State (see Prostitution in Australia). Most have decriminalised prostitution in varying ways. Regulation (sometimes known as legalisation) permits prostitution in certain forms, usually through zoning (confinement to certain areas) or licensing (licensing a limited number of prostitutes to work in certain areas of a city). Regulation views prostitution as a necessary evil if not a social necessity. The aim is not eradication so much as control, the goal being to keep prostitution limited to areas of town where it will not offend the rest of the citizenry. But regulation does little to change the dynamics between prostitutes and the public in that it legitimises prostitution only to the point that it may be practised in certain circumstances, but does not accord prostitutes any practical rights beyond the right not to be criminally charged in certain circumstances. In this context, decriminalisation also means institutional controls over the lives of those who engage in this work rather than granting the women control over the work they choose. See Egger (1991) and Pinto et al. (2005). Australia is a destination country for women who are trafficked into prostitution (there is trafficking for other purposes in Australia, though no research has been conducted which focuses on other forms of exploitation). The Australian Government announced a $20 million counter-trafficking package in October 2003, which recognises women trafficked into prostitution as victims of a crime and offers support to help them recover. However, this does not mean that the Australian Government considers all women in prostitution to be victims of a crime, only that trafficking is a crime. Most women trafficked to Australia are from South East Asia and China with some from Eastern and Central Europe and Latin America.

Kathleen Maltzhan reported for The Brisbane Institute in 2004 that in Victoria, trafficked women have been located in a number of legal brothels which is an issue that prostitution regulatory regimes have yet to seriously address:

Canada
The Criminal Code prohibits all forms of public communication for the purpose of prostitution (s.213 [5]), and most forms of indoor prostitution as well: owning, running, transporting or occupying bawdy house (ss.210 [6] and 211 [7]), procuring or living on the avails of prostitution (s.212 [8]). However the act of exchanging sex for money is not illegal. Although Canada is a federation, the criminal law applies throughout the country, the laws are the same all over Canada. The government included prostitution in the mandate of the Committee on Sexual Offences Against Children and Youth (the Badgley Committee), and the Special Committee on Prostitution and Pornography (the Fraser Committee) which helped to promote a significant body of research which has confirmed that approximately 70% of adult males and females working the street began their involvement in prostitution prior to their eighteenth birthday. This finding has spawned a lengthy debate about the causes and consequences of youth involvement in prostitution. The debate about causes of female youth prostitution centres around the role of sexual abuse and other familial factors that may contribute to a girl running away from or being thrown out of the home. While the trend in other western countries has been to move away from criminal sanctions for prostitution, Canada has done the reverse, legislating a tougher anti-communication law (s.213) in 1986. More recently, various government committees and task forces have called for even tougher laws as well as more vigorous enforcement of the current legislation. In 1990 the Standing Committee on Justice recommended yet more strengthening of the laws including fingerprinting and photographing prostitutes and the removal of drivers licenses for those charged with communication for the purpose of prostitution.

The impact of migrant sex trafficking on Canada is estimated at between $120 million to $400 million per year and accounts for approximately 8,000 to 16,000 people arriving in Canada per year illegally. ("Organized Crime Impact Study," Solicitor General of Canada).

Illegal organized prostitution is common in the major cities (Vancouver, Toronto, Montreal), and takes place in various establishments, such as strip clubs, massage parlors, hollistic centers, body rub parlors etc. Many of the prostitutes working there are from Asia (especially Southeast Asia); several cases involving underage girls have occurred. The recruitment of exotic dancers into Canada is legal, with 1000 employment authorizations for foreign exotic dancers being issued every year. This activity is suspected of being linked to the issues of trafficking and sexual exploitation.

India
Rajeshwari (1999) asserts that realistic accounts of prostitution in research contextualise it in the broad frame of the Indian socio-economic structure, adverting to the rural poverty and bonded labour, the gross exploitation of tribal, lower-caste and refugee women, urban red-light areas, disease, policy brutality and corruption, and the increasingly controversial issue of prostitutes' children. According to UNICEF, India contained half of the one million children worldwide who enter the sex trade each year. Many indigenous tribal women were forced into sexual exploitation. In recent years, prostitutes began to demand legal rights, licenses, and reemployment training, especially in Mumbai, New Delhi, and Calcutta. In 2002, the Government signed the South Asian Association for Regional Cooperation (SAARC) Convention on Prevention and Combating Trafficking in Women and Children for Prostitution. The country is a significant source, transit point, and destination for many thousands of trafficked women. There was a growing pattern of trafficking in child prostitutes from Nepal and from Bangladesh (6,000 to 10,000 annually from each). Girls as young as seven years of age were trafficked from economically depressed neighborhoods in Nepal, Bangladesh, and rural areas to the major prostitution centers of Mumbai, Calcutta, and New Delhi. NGOs estimate that there were approximately 100,000 to 200,000 women and girls working in brothels in Mumbai and 40,000 to 100,000 in Calcutta. 

The traditional argument supporting prostitution as a phenomenon invokes male sexual need as a "natural" phenomenon that requires fulfillment outside of monogamous marriage - and the prostitute as servicing this need. Its theoretical defence is given in what is termed the "contractarian" argument, according to which the need for sexual gratification is a need similar to the need for food and fresh air (and hence should be as readily available) and, further, that under conditions of "sound" prostitution, sexual services may be freely sold in the market place (Ericsson: 1980). Feminists reject the notion that the powerful male impulse must be satisfied immediately by a co-operative class of women, set aside for the purpose. This is seen as an adrocentric view of sexuality and as reinforcing the psychology of obtaining sexual satisfaction, by rape if necessary. In legal terms, the Indian Immoral Traffic (Prevention) Act 1956, criminalised the volitional act of "a female offering her body for promiscuous sexual intercourse for hire whether in money or in kind". But, under the revised 1986 Act, "prostitution" means " the sexual exploitation or abuse of persons for commercial purpose, and the expression 'prostitute' shall be constructed accordingly" - so there is not only no criminality if there is "offering by way of free contract", there is not even prostitution. More problematic is the status of the transgendered who eke out a living by begging, dancing or prostitution. Indian law recognises only two biological sexes. The PUCL (K) Report (2003), highlights, "The dominant discourse on human rights in India has yet to come to terms with the production/reproduction of absolute human rightlessness of transgender communities. ...At stake is the human right to be different, the right to recognition of different pathways of sexuality, a right to immunity from the oppressive and repressive labelling of despised sexuality. Such a human right does not exist in India."

Sweden, Norway and Iceland
In these three countries it is illegal to pay for sex (the client commits a crime, but not the prostitute).

In 1999, Sweden became the first country in the world to make it a crime to pay for sex, but not to be a prostitute (see Prostitution in Sweden). A similar law was passed in Norway (in 2009) and in Iceland (in 2009).

Enforcement
The enforcement of the anti-prostitution laws varies a lot from country to country, and from region to region. In many places there is a very big discrepancy between the laws which exist on the books and what occurs in practice. For example, in Thailand prostitution is illegal, but in practice it is tolerated and regulated. Such situations are common in many Asian countries.

In areas where prostitution or the associated activities are illegal, prostitutes are commonly charged with crimes ranging from minor infractions such as loitering to more serious crimes like tax evasion. Their clients can also be charged with solicitation of prostitution.

In most countries where prostitution is illegal, there is a degree of toleration for some forms of the sex trade. In some countries, such as the US, police occasionally organize sting operations in order to arrest potential prostitutes or clients, this generally happens when the authorities receive complaints from citizens about prostitution occurring in a specific area.