Prostitution, often referred to as the “world’s oldest profession,” is an act where an individual offers sexual services in exchange for money or goods. While many understand it simply as a commercial transaction, it has long been a subject of legal scrutiny and moral debate. Simply put, it is when someone gets paid to engage in sexual activity.
The Harm
Lawmakers around the world aim to combat various harms they associate with prostitution. First, there’s the potential exploitation of vulnerable individuals, particularly women and children. Many are forced into the trade due to poverty, coercion, or trafficking. Prostitution can also lead to the spread of sexually transmitted infections if health and safety standards aren’t maintained. Beyond these immediate concerns, there’s a broader societal worry. Some believe that prostitution devalues the moral fabric of society by commodifying intimate relations. Additionally, the business side of prostitution often ties in with organized crime, leading to broader concerns about public safety and order.
Classification Under Most Legal Codes
In many jurisdictions, prostitution falls under sexual offenses or public order crimes. The act might be categorized as a misdemeanor or felony, depending on the circumstances and the specific legal system. Penalties can range from fines and community service to imprisonment.
How Prostitution Fits into Broader Crime Categories
Prostitution is unique as it straddles multiple categories of criminal offenses. Primarily classified as a sexual crime due to its intimate nature, it also touches upon crimes against persons when considering the potential exploitation involved. The business aspects, particularly when organized crime gets involved, can also classify it as a crime against property or public order.
A Historical Look at Prostitution and its Elements
Historically, prostitution has been both practiced and condemned for millennia. Ancient codes like the Code of Hammurabi from Babylon make reference to prostitution, indicating its regulation even then.
The common law tradition, especially as discussed by Sir William Blackstone in his “Commentaries on the Laws of England,” touches upon prostitution as a public nuisance. Blackstone emphasized the moral decay and public disorder associated with brothels and suggested penalties for those who keep or frequent them.
In England, where much of common law finds its roots, the act of prostitution was not initially illegal. However, many associated activities, like brothel-keeping, were. This reflects a nuanced approach where the act itself might be tolerated, but the broader implications, especially those impacting public order, were not.
Over time, with shifts in societal and religious norms, many jurisdictions criminalized the act itself, while others targeted the broader ecosystem, like pimps and brothel owners. Today, with evolving perspectives on personal rights and an increased understanding of the complexities surrounding sex work, many areas are reevaluating their stance, moving towards regulation rather than outright criminalization.
Model Penal Code Definition of Prostitution
In understanding the legal intricacies of prostitution, the Model Penal Code (MPC) offers extensive insight. The MPC § 251.2 defines prostitution as engaging in sexual activity for hire. The legal focus typically lies in the transactional nature of the act, emphasizing the exchange of money or goods for sexual services. Different states may have their specific interpretations and provisions related to prostitution. The intricacy of the language, plus the diversification in state laws, makes it essential to examine the individual state penal codes for more granular legal descriptions and penalties.
Solicitation of Prostitution
Overview: Solicitation of prostitution is an offense distinct from prostitution itself. This crime occurs when one person attempts to persuade, request, or induce another person to engage in prostitution. Unlike prostitution, which involves a direct act of trading sexual services for money or other valuables, solicitation focuses on the act of propositioning or offering payment for those services.
Legal Implications: In many jurisdictions, both the prostitute and the client can be charged with an offense—prostitution for the prostitute and solicitation for the client. While in some regions, penalties for solicitation might be lighter than those for prostitution, there has been a growing movement towards charging solicitors more severely to combat the demand side of the sex trade.
Examples: Solicitation can happen in various ways, from direct verbal requests to more discreet means like online ads or coded language. Even if the solicited act doesn’t happen, merely making the request or proposition can lead to charges.
Pimping and Pandering
Overview: Pimping and pandering are offenses that typically involve third parties in prostitution activities. While the two terms are often used interchangeably, they describe different acts.
- Pimping: This involves profiting off the earnings of a prostitute. A person is charged with pimping if they knowingly derive support or maintenance from the earnings or proceeds of another’s prostitution.
- Pandering: Pandering, on the other hand, involves facilitating the act of prostitution by arranging or procuring a person for the purposes of prostitution. This can include acts such as recruiting or forcing someone into prostitution.
Legal Implications: Pimping and pandering are usually considered more severe offenses than either prostitution or solicitation. Laws against pimping and pandering aim to deter individuals from exploiting others for financial gain or contributing to the spread of the sex trade. Penalties can be stiff, with jail time, heavy fines, and mandatory classes or counseling.
Examples: Examples of pimping might include a person taking a percentage of a prostitute’s earnings or providing protection in return for a cut of the profits. Pandering can be seen in acts like recruiting women into prostitution or maintaining a brothel where prostitution takes place.
Both of these offenses, like prostitution, vary in definition and severity of punishment across different jurisdictions.
Defenses in the Penal Code
The MPC allows for various defenses concerning prostitution charges. For instance, an individual forced into prostitution due to coercion or threat may have a valid defense under the MPC § 2.09, which discusses duress. Moreover, if a person was unaware that the activity they were engaging in was prostitution, it might serve as a defense, although the validity of this defense varies across jurisdictions. Specific defenses need thorough legal examination and are typically utilized under the counsel of a competent attorney.
Summary List of the Elements of Prostitution
- Actus Reus: Engaging in sexual activity for hire.
- Mens Rea: Knowledge and intent to participate in the sexual act for compensation.
- Concurrence: The intention and the act occur simultaneously.
- Attendant Circumstances: The exchange of compensation for sexual services.
Comparing Prostitution and Sex Trafficking Laws
At first glance, prostitution and sex trafficking may appear similar, but they are distinct both in definition and the legal consequences that surround them. Prostitution, as commonly defined, involves the exchange of sexual services for money or other valuables and is often a voluntary act between consenting adults. While many jurisdictions criminalize the act, the statutes typically focus on the acts of selling or buying sexual services. The intent behind many of these statutes is to regulate or curb the sex trade, with arguments ranging from public morality to public health.
Sex trafficking, on the other hand, is universally recognized as a grave human rights violation. It involves the recruitment, transportation, harboring, or receipt of people through force, fraud, or coercion with the intention of subjecting them to forced prostitution, forced labor, or other forms of exploitation. Essentially, it’s the element of coercion and lack of consent that distinguishes sex trafficking from prostitution. Sex trafficking laws do not merely aim to regulate an activity; they seek to prevent severe violations of personal autonomy, dignity, and basic human rights.
Furthermore, penalties for sex trafficking are much more severe than those for prostitution. While a prostitute or client may face fines, community service, or short jail sentences, those convicted of sex trafficking can face lengthy prison terms, sometimes even life sentences in certain jurisdictions. This distinction underscores the legal system’s view of trafficking as a particularly heinous crime, involving not just the violation of public norms, but the fundamental rights of the trafficked individuals. In essence, while prostitution laws debate the boundaries of personal liberty and societal morals, sex trafficking laws unambiguously condemn the coercive and exploitative nature of the act.
References
- Blackstone, W. (1765-1769). Commentaries on the Laws of England (Vols. 1-4). Clarendon Press.
- Hammurabi. (n.d.). The Code of Hammurabi. [Translated by L.W. King]. The Avalon Project.
- Model Penal Code and Commentaries (Official Draft and Revised Comments). (1980). Part II. The American Law Institute.
- Model Penal Code and Commentaries (Official Draft and Revised Comments). (1985). Part I. The American Law Institute.
Modification History File Created: 07/17/2018 Last Modified: 09/28/2023
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.
