Decriminalizing prostitution: An idea whose time has come?
Eliza Orlins gained a measure of fame years ago as a contestant on the reality shows “Survivor” and “The Amazing Race.” But if things go well for her, she could be remembered for something slightly more consequential: moving the nation toward decriminalizing sex work, commonly known as prostitution.
Orlins, a veteran public defender who is running for district attorney of Manhattan, has taken a bold position. If elected, she says, she will “advocate for the full decriminalization of consensual sex work. This will begin with declining to prosecute all cases of consensual sex work.”
She is finding plenty of allies. Five other candidates in the eight-person field have taken the same position, according to a report published in The Appeal: Political Report and New York Focus.
Brooklyn DA Eric Gonzalez is not in favor of full decriminalization, but he has stopped prosecuting sex workers on prostitution charges and recently vacated more than 1,000 warrants in such cases. “It doesn’t make sense for someone to have an outstanding warrant for something we no longer prosecute,” he said.
Could decriminalization of sex work be on the verge of a breakthrough? This form of commerce is ancient and ineradicable. As one New Orleans mayor said, “You can make it illegal, but you can’t make it unpopular.”
A poll last year found that 52% of Americans think we should “remove criminal penalties for adults to sell and pay for consensual sex while also maintaining laws that criminalize violence.” Among Democrats and voters aged 18 to 44, 2 out of 3 take the view that if people want to engage in carnal knowledge, the terms should be up to them.
But for a variety of reasons, our puritanical laws have remained in place. Sex workers historically have not been considered worthy of protection. Their customers are generally averse to publicizing their proclivities. Aversion to street prostitution is understandably commonplace.
So what’s changed lately? The case of New England Patriots owner Robert Kraft was illuminating: He was charged for soliciting sexual favors at a Florida massage parlor in what was billed as part of a major human trafficking sting. Unlike most people arrested in vice raids, he had the money and the chutzpah to fight back, and the charges were dropped when courts ruled the search warrants invalid. Prosecutors had to admit they uncovered zero evidence of sex trafficking. The inequities of our criminal justice system are obvious in this realm. A New York state government report found that 91% of those arrested for loitering for the purpose of prostitution were Black or Hispanic. The ban is so often used against transgender women that they call it the “Walking While Trans” law.
Gay rights organizations have taken up the cause. Human rights groups, from Amnesty International to the Global Alliance Against Trafficking in Women, are on board. Not least important, sex workers have mobilized to advocate for legitimizing their occupation.
Even some 2020 presidential candidates embraced the idea. Former Rep. Tulsi Gabbard, D-Hawaii, came out for full decriminalization. Then-Sen. Kamala Harris said, more ambiguously, “We should really consider that we shouldn’t criminalize consensual behavior, as long as no one is being harmed.”
Orlins, not one for half-measures, makes her case in unabashedly progressive terms: “Decriminalizing is the most effective way to protect sex workers from police violence. It is the best way to help sex workers access health care and lower the risk of violence from clients. It is necessary if we aim to reduce mass incarceration and advance equality in the LGBTQIA+ community.”
Prostitution bans are often rationalized as essential weapons against human trafficking. But some 26,000 people were arrested in 2019 in this country on prostitution charges — and, as journalist Elizabeth Nolan Brown of Reason magazine notes, there were just 708 arrests for labor or sex trafficking.
Notes Orlins, “People engaged in consensual sex work may know about evidence of sex trafficking that they are unable to share, for fear of facing criminal charges themselves.” Removing criminal penalties for sex work would make America a freer, safer and more equitable place, while saving money and freeing cops to combat real crime.
The prospect may seem remote, given our long history of repression. But consider the broad public acceptance of same-sex relations, pornography, birth control and transgender rights. By now, Americans and their elected officials should be able to agree that it’s not the business of government to interfere with consensual sex. Even when sex is business.