Legalizing Prostitution in California This Thesis

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As far back as 1959, the United Nations recognized the logic and benefits of decriminalizing prostitution, and organizations supporting this decriminalization include the "American Civil Liberties Union, the National Organization of Women, and various prostitute 'unions', the most famous of which is COYOTE (Call Off Your Old Tired Ethics)" (Rio, 1991, p. 206). And as far back as 1971, the San Francisco Committee on Crime considered the legalization of prostitution a "feasible" approach to the issues involved. In addition, in 1977, the California Senate Committee on the Judiciary gave their support for a legalized sex trade (Rio, 1991). So why, more than thirty years later, has no progress been made in this arena? Particularly from a criminal justice perspective, what is the current rationale for criminalizing this activity? If the point of criminal justice is to control and prevent crime and maintain justice (Gaines & Miller, 2008), how are attempts at the prohibition of prostitution any wiser than attempts at prohibiting the sale and use of alcohol?

Morality vs. Liberty: Causes and Effects

Traditional arguments against the legalization of prostitution relate to America's Puritan roots and issues of morality. No matter that prostitution and pornography are billion dollar industries tied to human nature and impossible to eradicate; many citizens and legislators simply cannot stomach the thought of "allowing" a sex trade. In a thorough analysis of the issue in 1993, Tabbash lists many arguments against criminalizing prostitution for moral reasons: "in a society that separates church and state, no person should lose her or his freedom because of someone else's religious beliefs"; imprisoning women who choose to prostitute themselves in no way protects them from harm or reduces their degradation; the degradation of these women in many cases results from the criminalization of their activities (because of the need for pimps and the "dirty and worthless" stigma attached to prostitutes); and the highest form of morality is arguably the "live and let live" philosophy, which allows for individual freedom and self-expression. Tabbash also argues that a genuine concern for women would offer them "equal rights and opportunity," as well as an end to "turning some of them into criminals merely because they have chosen to exchange sex for money." Deep down, fears about decriminalizing prostitution most often have to do with concerns about venereal disease, the destruction of marriages and families, and the abuse and murder of vulnerable women. But evidence shows that legalizing prostitution works to reduce, rather than exascerbate, these problems. Attempting to deny that the sale of sex is a prominent, pervasive, and permanent aspect of human society by criminalizing it does nothing to inhibit or prevent it (Tabbash, 1993).

Other traditional arguments against legalizing the sale of sex are related to the background of women who choose this means of existence. In many cases, these women come from childhoods of abuse, neglect, drug use, and economic struggles. The argument is that these women are not truly choosing to sell their bodies, but are forced to by circumstance. While this may be true in many cases, criminalizing prostitution without spending an equal amount of time and money on placing these women in more "respectable" jobs and offering them rehabilitation services and health protection does nothing to improve their lives (Tabbash, 1993). Moreover, the fact that prostitution is a criminal activity sold on the "black market" contributes to its profitability for women.

The argument that women who work as prostitutes suffer from low self-esteem and mental illnesses such as Post-Traumatic Stress Disorder (PTSD) as a result of their way of life are also weak. Experts argue that low self-esteem is most often rooted in childhood experiences, and the criminal stigma attached to prostitution in American society is itself the cause of this self-degradation. More importantly, the stresses involved in prostitution that result in mood and other mental disorders among sex workers are directly the result of its criminalization. The regulation of this industry would bring these women indoors, protect them from venereal disease and unwanted pregnancy, shield them from abusive pimps and serial killers, and provide them with a sense of belonging absent in the world of prostitution today (Tabbash, 1993).

Nations such as Canada, with more progressive views of the legalization of prostitution, note that leaving the sex trade on the streets results in "residential and commercial areas often experiencing traffic congestion, noise, litter, harassment of residents, declining property values, and loss of legitimate businesses" (John Howard Society Contributors, 2001, preface).

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Again, regulation and legalization would reduce or eliminate these issues, rather than aggravate them.

The potential effect on families is another sensitive issue surrounding prostitution. As the Alberta, Canada official discourse on prostitution of 2001 stated: "families of those who procure the services of prostitutes can suffer financial hardship, distrust, emotional suffering and family breakdown" (John Howard Society Contributors, 2001, preface). However, these family-centered problems are just as likely to result from legal activities such as the patronization of strip clubs, the purchase of pornography, or the abuse of alcohol.

In fact, it's arguable that the thousands of women "acting" in pornographic films are participating in a legalized form of prostitution. This precedent was set in the state of California in 1987 when Harold Freeman, a pornography director, was freed by the California Supreme Court on charges of pimping (for hiring adult actors to perform sex acts). Freeman's arrest was part of an attempt by California law enforcement to put an end to the industry; however, their plan backfired when the Supreme Court of California ruled in favor of Freeman, and "the making of hardcore pornography was effectively legalized" (Zirkle, 2010, p. 1).

Approaches and Solutions

In response to the great debate over prostitution and its effects on society, three basic approaches have emerged and been adopted by governments: the sale of sex can be criminalized and fought by lawmakers and law enforcement officials; it can be decriminalized, effectively replacing prohibitive laws with municipal by-laws and taxations; or it can be officially legalized and recognized as a permanent, unavoidable aspect of human society that requires state acknowledgement and regulation (John Howard Society Contributors, 2001). In addition, there are many proactive practices that communites have successfully implemented to improve issues surrounding the sale of sex, provided they have government cooperation. These can include "legalizing brothels, implementing prostitution offender programs, mailing out "Dear John" letters, and creating zones of tolerance" (John Howard Society Contributors, 2001, preface). In Canada, social programs have also been developed to offer aid and support to prostitutes in need of medical care, counseling or alternative job options (John Howard Society Contributors, 2001).

Among law enforcement officials themselves, who have experience the effects of prostitution firsthand, the debate is just as fierce and difficult to nail down. One common argument for legalization revolves around safety issues for female sex workers. For example, police officers recognize that the physical abuse and serial killing of prostitutes would be reduced or eliminated by bringing the operation indoors where security cameras and other protections could be offered (Stamper & Flores, 2009).

Dozens of studies also offer statistics in support of a more realistic approach to the problems surrounding prostitution. For example, according to data compiled by Cundiff in 2004, the price of sex in countries where it has been legalized averages around $30, as opposed to the $200 (half of which goes to a pimp) often charged in the United States. Through legalization, the price may not drop in America, but the majority of profits could go toward the economy and government programs that work to improve society as a whole, rather than benefitting individual pimps and prostitutes. This in itself could greatly reduce the attractiveness of prostitution as a means of financial gain.

Sexually-transmitted Disease, Violence, and Power Struggles

Since many prostitutes suffer from poverty as a result of spending their earnings on illegal drugs, a limit on their profits, as well as laws against drug use among prostitutes, could greatly reduce this problem as well. Cundiff's research also reinforces other studies claiming that the legalization of prostitution reduces the incidence of rape. In fact, Cundiff states that with a population of roughly 300 million, the United States could expect a "decrease of approximately 25,000 rapes per year" as a result of decriminalizing prostitution (Cundiff, 2004, p. 2).

HIV and other sexually-transmitted diseases are another major concern among prostitutes and "johns." But legalizing and regulating the sex trade would once again decrease, rather than increase, the spread of these diseases. In Washington, D.C., where it's estimated that 50% of prostitutes are HIV positive, Gildenhorn said in 1998: "We're doing an immoral injustice by not doing something about the epidemic of venereal disease and AIDS. I look at this as a health problem. it's immoral for us to let this go on unchecked. it's like having a loaded gun" (Trugman, 1998, p. 1).

Law enforcement.....

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