Legal Commentary

Prostitution: Never A Victimless Crime?

By TChris

Eliot Spitzer’s downfall spotlights a recurring question of crime policy: whether prostitution, the simple agreement to exchange compensation for sex, is a victimless crime that does not merit prosecution. In two columns this week, Nicholas Kristof assures us that Spitzer’s date, Kristen, is “dangerously unrepresentative” of American prostitutes. Surely at $1,000 per hour, Kristen is in the elite company of high end sex providers, but she is not alone in that league, as an article in today’s local section of Kristof’s newspaper demonstrates. Perhaps it would be dangerous to think of Kristen as “representing” any other prostitute, but it equally dangerous to logic to dismiss Kristen and other sex workers who freely choose their work, simply because they belie the belief that an act of prostitution always has a victim.

A provider quoted in the Times article provides a counterpoint to Kristof’s concern about viewing prostitution as a victimless crime:

Ms. Anderson complained that news coverage of the Spitzer scandal had made prostitutes seem like damaged, depraved rag dolls. “Sex workers are people like you and me,” she said. “I’m against trafficking, but in all the years I’ve worked in the business, I’ve never met a woman who was coerced.”

Kristof’s focus on the trading of women as sexual servants highlights a crime that clearly victimizes women. So does his discussion of pimps who abuse women. Kidnapping, physical coercion and abuse are never acceptable, and society has a genuine interest in protecting potential victims from those crimes. That does not mean society should pretend that an uncoerced sex act between two consenting adults, if criminalized simply because something of tangible value is exchanged for the sex, is anything other than a victimless crime. [more...]

Kristof’s argument that some women turn to prostitution in response to economic coercion – they need to pay the bills – is undoubtedly true, just as it is true that some people respond to economic coercion by robbing liquor stores. Society (Republicans notwithstanding) should try to help everyone escape the victimization of poverty, and we should try to muster the compassion to understand that crime (not just prostitution) is a frequent consequence of economic injustice. That understanding does not excuse crime, and it does not mean (as Kristof’s logic dictates) that a person who chooses to make money illegally (whether by robbing liquor stores or selling sex) becomes a victim of that crime.

Kristof’s observation that some prostitutes were sexually abused as children is also true, just as it is true that many sex offenders were sexually abused as children. Perhaps society should treat sex offenders as “victims” if they were themselves abused, but rare is the judge who will do so. Prostitutes, like child molesters, may be victims of their past, but they are not commonly regarded as victims of their own decisions to violate the law.

It’s important to draw a distinction between sexual transactions that are genuinely coerced and those that are not. Kristof opposes the decriminalization of prostitution because he fears that coerced sex won’t become a law enforcement priority unless all exchanges of sex for money are illegal. At the same time, he acknowledges that “reasonable people can disagree about whether the police should devote resources” to “young women who voluntarily sell sex,” and he notes that “the great majority” of the “100,000 prostitution-related arrests each year … are of women and girls.” If some or most of those women and girls are victims, as Kristof suggests, it makes little sense to arrest them. If they are adults being paid for a voluntary, uncoerced sex act that they could legally provide for free, it is equally irrational to arrest them for taking the money.

Kristof is concerned that decriminalization might encourage more prostitution and spread the surrounding environment of exploitation and abuse. A regulatory environment that actively assisted and protected providers, while offering them resources and encouragement to find alternative employment, would meet those concerns more usefully than the criminal justice system, which simply isn’t suited to address the underlying cause or morality of an individual’s decision to buy or sell sex.

Go after traffickers who enslave women and children. Go after pimps who abuse women. But spare the men and women who enter into sexual unions for money from the wrath of the criminal justice system. The world’s oldest profession isn’t going away, and there are better ways to respond to it than to punish prostitutes or their customers.

Full post as published by TalkLeft on March 16, 2008 (boomark / email).