Decriminalization of Prostitution: A Criminological View

Introduction: The Case for Decriminalization

Existing laws jeopardize the lives of sex workers. Prostitutes are driven into darker and more isolated corners to avoid criminal prosecution, which in turn complicates outreach workers' efforts to connect with them. Predators know that these prostitutes will not report abusive or violent behavior, and therefore view the street prostitute as fair game — to hunt, rape, mutilate, and kill whenever they choose. Sex workers are particularly vulnerable to sexual assault.

It must first be acknowledged that there is nothing good or dignified about prostitution. It is distasteful, demoralizing, and degrading to the human spirit. However, sex work does provide an opportunity for people to make a living — the majority of whom are poor, displaced women who, more often than not, were abused and sexually traumatized in childhood (Monet, 1997). Under social learning theory and feminist criminological frameworks, these circumstances call for the decriminalization of prostitution as a humanitarian effort to allow sex workers access to the health services and legal protections that every woman is entitled to (Kendall-Raynor, 2007).

Social Learning Theory and Prostitution

Sutherland's social learning theory revolves around the idea that criminal behavior is learned. According to Sutherland, criminal behavior develops through contact with other persons through a series of communications, and the primary conceptualization of learned criminal behavior takes place within intimate personal groups. Furthermore, the process of learning criminal behavior can be divided into two separate objectives: methods for learning the crime, and the precise direction of reasons, intentions, motives, urges, rationalizations, and attitudes.

During this learning process, the person learns distinct definitions of favorable or unfavorable legal codes. A criminal is effectively formed when the perception of those definitions leans more favorably toward violating the law rather than respecting it. Moreover, the development of criminal behavior through association with criminal and anti-criminal models involves all of the same learning mechanisms present in any other form of learning. Although delinquent behavior may be an expression of general needs and values, it is not justified by those needs and values, because non-criminal behavior is equally an expression of comparable needs and values (Akers, 1997).

Sutherland's social learning theory is relevant to the legalization of prostitution in that many prostitutes learned patterns of criminal behavior in childhood, through exposure to serious physical, mental, emotional, and sexual trauma. Ethical thinking and moral behavior develop through observation and modeling of behaviors in one's surrounding environment — including moral judgments about right and wrong. Survival mechanisms drive these children to adapt to their experiences through conformity. They enter adulthood with a deeply ingrained sense of unworthiness and come to believe that selling their bodies is the only viable option available to them. Many have never been provided a constructive learning model or a basic sense of safety, which would have given them the opportunity to develop a fuller sense of identity and possibility.

If social learning theory were even partially applied toward the global legalization of prostitution, it would provide a compassionate understanding of where these behavioral patterns originate. One advantage of applying this theory is that any behavior that has been learned can, in principle, be unlearned. However, a significant disadvantage is that patterns rooted in childhood abuse are very difficult to break. The scars are often permanent, and for many individuals the level of trauma is so intense that it takes an entire lifetime to reach what society considers a functional baseline. There will always be those who feel morally justified in imposing their personal values on these women, and this stigma tends to follow them permanently. It is also important to note that procurers and clients are equally breaking the law — and if prostitution is to remain a crime, they should be criminalized as strictly as, if not more strictly than, the sex workers themselves, since they are what sustain the industry.

Feminist Criminology and Sex Work

Prostitution is defined as "the practice of having sexual relations with emotional indifference on a promiscuous and mercenary basis" (Hagan, 2007). It is classified as a public-order criminal behavior, sometimes called a "crime without victims" or "legislated morality," because it is understood to offend public morality (p. 460). Until recently, there were considerable obstacles to the prosecution of those who raped sex workers. Prostitutes were seen as perpetually available to men, always consenting to sex, and unqualified to claim they had been beaten or raped — let alone to request equal protection under the law. Feminist groups have argued that complaints of rape made by prostitutes run a far greater risk of not being taken seriously by police and prosecutors (Sullivan, 2007).

Feminist criminology encompasses an array of methods and practices, but all share a common theme: that mainstream (or "malestream") methodology in criminology communicates bias by ignoring and excluding women from controlled studies (Hagan, 2002). According to Akers (1997), there is no single precise theory of feminism, just as there is no single unified theory in criminology (p. 189). Akers stresses that possessing one specific feminist theory is less important than holding a feminist viewpoint — that is, accepting that women experience subordination based on gender, and that working to eradicate that subordination is the overarching goal.

Feminist theory encourages women to examine crime through the lens of their own experiences with sexism; however, feminist research sometimes conflicts with scientific method. This tension could pose a real problem when applying feminist theory to the legalization of prostitution. If feminists seek maximum credibility, they will need to develop theories more closely aligned with scientific method. Liberal feminism emphasizes affirmative action but is often criticized for not sufficiently challenging "white, male, capitalist privilege" (cited in Hagan, 2002). According to Hagan, radical feminism is the prevailing approach within feminist criminology; however, radical feminists view all prostitution as a form of rape — a violation of human rights and a form of slavery — and advocate the total abolition of prostitution (Roleff, 2006).

Conclusion: Regulation as a Humanitarian Strategy

In 2006, the United States government rejected the idea of managed zones for sex workers, declaring: "We should challenge the existence of street prostitution, not imply through the development of managed areas that it is acceptable or that its existence should be tolerated" (Kendall-Raynor, 2007). Most people have heard the tired cliché that "prostitution is the world's oldest profession." Prostitution cannot be abolished by religion or by its various moral components. In the minds of most people caught in survival situations, physical survival takes precedence over moral and philosophical values. Most street prostitutes are simply trying to survive through the night.