In prostitution, who's committing the crime, the woman or the man?

July 18, 2008

Dear Cecil:

Is the woman committing the crime by selling herself or is the man committing the crime by paying for the service?

Cecil replies:

Who says feminism hasn't accomplished anything? Nowadays, in most American jurisdictions, both the hooker and the john are committing a crime in the eyes of the law. That may not seem like much of an achievement, but for much of the 20th century prostitution was something only women could get arrested for in the U.S. (In fact, some laws were written so narrowly that even male prostitutes were off the hook.) These laws have since been mostly amended or replaced, so that today, while we may not have equal rights, at least we've got equal wrongs. One country, Sweden, has gone to the opposite extreme. There selling your body is legal (the politically correct term is "sex work"), but heaven help the chump who wants to buy.

Though prostitution has never been a high-status occupation, the occasional royal courtesan excepted, for the most part it wasn't illegal in this country's early years — though streetwalkers who made themselves conspicuous did risk being charged with vagrancy, public lewdness, or the like. That changed in the late 19th and early 20th centuries, an era that saw the criminalization of vices (other examples: gambling, some drugs) that till then had been considered matters for the pulpit, not the courts. But whereas narcotics laws penalized both sellers and buyers (to be precise, possessors), prostitution laws typically went after just one party in the transaction. Why? Some legal commentators point to a well-known and persistent double standard: whereas men were seen as helpless victims of their libidos, women supposedly had no inherent interest in sex and sold themselves out of sheer wickedness.

It took a long time for that standard to change. As of 1917 only one state, Indiana, had specifically declared that patronizing prostitutes was a crime. (A few others technically defined prostitution to include both the purchase and sale of sex, although few male buyers were charged.) By 1965 that number had risen to seven. In the 70s several states, including New York and Massachusetts, enacted antijohn laws, whose goal was to suppress prostitution by embarrassing customers — in 1979 New York City mayor Ed Koch famously read on the radio the names of men convicted of soliciting hookers. I hesitate to attribute this entirely to some newfound sense of fair-mindedness among public officials; clearly the main goal was more effective enforcement. But at least lawmakers had grasped that the minimum number of participants in a successful act of prostitution was two.

Today antijohn laws are fairly common, but even now the treatment of prostitution customers is far from uniform. In a few jurisdictions — Kentucky is one of them — state law remains squarely focused on those selling sex, leaving it to the discretion of local authorities to criminalize buying it. Others treat all parties equally. And some punish customers but deal with them more leniently than they do prostitutes, evidently on the same argument used to justify treating drug dealers more harshly than mere users.

As a practical matter there's no doubt the legal hammer falls more heavily on women, although arrest figures aren't as lopsided as they used to be. In 1970 close to 80 percent of those arrested for prostitution and related charges were female, according to FBI statistics; by 1993 that figure had dropped to 59 percent. As of 2006 it had bounced back up to 64 percent, but the total number of prostitution/vice arrests for both sexes was down significantly, surely progress of a sort.

The law does come down hard, if sporadically, on one male-dominated aspect of the sex trade: pimping, legally known as pandering. The best-known statute along these lines is the 1910 federal Mann Act, formally called the White-Slave Traffic Act, which as written prohibited interstate transportation of women for "prostitution or debauchery, or for any other immoral purpose." In fact the Mann Act has often been used to go after plain old johns, albeit famous ones, who allegedly consorted with prostitutes or in some cases simply women other than their wives. As noted in an NPR story in the wake of the Eliot Spitzer scandal, targets of Mann Act prosecution — some would say persecution — include Chuck Berry, Charlie Chaplin, the boxer Jack Johnson, and Frank Lloyd Wright. The law has since been amended to specify that the parties involved must be engaged (or planning to engage) in actual crimes, as opposed to some prosecutor's notion of immorality. Which, again, constitutes progress, I suppose. But we still have a distance yet to travel before reaching what I'd consider the reasonable position on such matters — namely that what consenting adults do, regardless of financial considerations and assuming they don't blight the neighborhood or disturb the peace when doing it, is really no business of the state.

Sex Workers or Sex Slaves?

Dear Cecil:

While your column presented an informative history of prosti­tu­tion policies within the United States, I was concerned by some of the assumptions and conclusions you drew. You concluded, without citing any evidence, that prostitution is generally a business transaction conducted between two consenting adults. Unfortunately, the issues accompanying prostitution in the United States reveal a much more complex reality.

Most experts estimate the average age of entry into prostitution in the U.S. is somewhere between 11-13 years old. For comparison, the age of consent in Illinois is 17. If you are purchasing sex in this country, the probability is high that you are purchasing it from a minor.

The next problem is the assumption that both parties are consenting. Consent revolves around the concept of choice—that a person is presented with a variety of viable options and makes an informed decision about which is best. But how does this “choice” play out for the estimated 100,000 to 300,000 youth in the sex trade in the United States? Or for a woman who is being pimped by her boyfriend or husband? Or for someone surviving homelessness or limited economic options? Or a woman feeding some type of addiction? Or with the untold numbers of women who are trafficked from foreign countries or forced into prostitution in the United States? If prostitution is truly a choice, then why did a study find that 92 percent of women in prostitution want to leave it?

The proposal you make, that prostitution should be legal, is based on the common assumption that prostitution is a victimless crime. This too is far from the truth. Individuals in the sex trade face a wide array of abuse from pimps and johns. One study of found that 82 percent of the prostituted individuals surveyed had been physically assaulted and 83 percent had been threatened with a deadly weapon. Another study of women in prostitution found that 78 percent of those interviewed were raped an average of 16 times a year by their pimps and another 33 times a year by their johns. All of these facts are underscored by the FBI estimate that after entering into prostitution, the average life expectancy drops to just 7 years.

Every country that has legalized prosti­tu­tion has seen its international sex trafficking rates, especially for children, skyrocket. Even Amsterdam is closing down 1/3 of its brothel windows due to organized crime and concerns about human trafficking. Instead of advocating for legalization, Adams should look to the only country that has successfully reduced the number of sexually exploited individuals: Sweden. Sweden has labeled prostitution a violent crime against women and instead of arresting and criminalizing those selling sex they offer women supportive services and target the demand through higher criminal fines. I can only hope you will put as much effort into researching your assumptions as you do your history next time.

Cecil Adams replies:

Your letter is based on your misconstruing of a single sentence in my column. I never concluded that prostitution is “generally a business transaction conducted between two consenting adults”; I said that what consenting adults do, even if money is involved, is no business of the state. Prostitution involving children or coercion is a different matter. No doubt many street prostitutes are abused by pimps and johns; similarly, many wives are abused by their husbands. It doesn’t follow that marriage ought to be a crime.

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