Should the US Legalize Prostitution?

Prostitutes are at increased risk for assault, homicide, and sexually transmitted infections. Photo by microgen/iStock

As debate continues around the world about whether prostitution should be decriminalized, a Boston University School of Public Health (SPH) researcher argues in the American Medical Association Journal of Ethics for a middle ground in the US that would punish buyers and brokers of sex, but not the people who sell sex (i.e., prostitutes).

Emily Rothman, an SPH associate professor of community health sciences and expert in sexual abuse and violence, says that both the criminalization and legalization of commercial sex have ethical pitfalls because they can “disempower and burden sellers” and put vulnerable people at increased risk of harm.

She argues that the so-called “Nordic model,” which criminalizes only the buying and brokering of sex, “offers the advantage of eliminating punishment for sellers, while potentially preventing the expansion of the commercial sex market and limiting the number of people trafficked.”

Rothman says that despite global controversy about the regulation of commercial sex, there is widespread agreement that sellers, or prostitutes, are at increased risk for a host of negative health and social consequences, including assault, homicide, and sexually transmitted infections. Complicating the debate is a lack of data on the percentage of those engaged in commercial sex who sell sex willingly, or who are coerced by force (i.e., trafficked) or by financial pressures.

Whether people who engage in commercial sex are consenting or non-consenting is important, she says, because supporters of decriminalization “assume that most paid sexual encounters are entirely consensual.” Problematically, she adds, some accept the argument that people living in dire poverty, with no other options, sell sex with consent.

Rothman argues that biomedical ethics disallows the coercive practice of using financial inducements to compel people to participate in medical research, so it is “logically consistent” to object to the use of financial incentives to compel people to have sex.

“There are those who argue that people work at all kinds of jobs that they don’t like because of financial pressure, and that working at sex is no different,” Rothman says. “But that is not a universally held opinion by the people who have sold sex. Some feel that having their bodies penetrated by customers is fundamentally, qualitatively different than standing behind a cash register. We simply don’t know what percentage of sellers enjoy selling sex, and what percentage are being assaulted or traumatized regularly.”

While criminalization has the potential to reduce the likelihood that people will be trafficked, arrests can “compound adversity” for sellers, especially those from marginalized populations, and enforcement can be used “selectively” against buyers and brokers, Rothman says. Legalization, meanwhile, may not stem trafficking and may continue to put sellers at high risk of violence and exploitation.

She notes that, counter to expectations, the decriminalization or legalization of commercial sex in New Zealand, the Netherlands, and Germany has not resulted in uniformly safer conditions, successful unionization of sex workers, or destigmatization. She cites economists’ analyses showing that countries where commercial sex is legal appear to experience higher sex-trafficking inflows.

“On the question of decriminalizing the form of commercial sex known as prostitution in the US, the potential harms to individuals and the public must be considered as carefully as the benefits of the expansion of individual rights,” Rothman says.

She says that while there is “no perfect solution,” the Nordic model, or any other policy changes, should be rigorously evaluated after being implemented.

Prostitution is illegal in all 50 US states, with the exception of some counties in Nevada, where it is allowed in local government-regulated brothels.