Prostitution (criminology)
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In criminology, the research and analysis of prostitution falls within the topic of public order crime. The legal treatment of the social phenomenon is not equal, reflecting differing standards of morality as to the pursuit of pleasure, differing attitudes towards gender roles, and more general concerns with inequality, exploitation, and violence. In some jurisdictions, the commercial arrangement between customer and service provider is considered intrinsically criminal. In other jurisdictions, the actual sale of sexually based services is not a crime, e.g. in the U.K., the Commonwealth of Nations, Europe and Latin America, but the support and ancillary activities of running an unlicensed brothel, solicitation for business, kerb-crawling, etc. may be criminal.
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[edit] Discussion
Prostitution has always tended to be contentious in the communities in which it exists. The religiously inclined may be morally outraged by its presence, viewing it as a threat to the moral codes laid down in their scriptures, while others are merely curious or view it as a necessary evil. In the Feminist School, it demonstrates the continued entrenchment of patriarchy and the exploitation of women. Feminists want prostitution abolished or regulated as sex work. More generally, governments have the duty of safeguarding public health and order. In this, the Wolfenden Committee Report (1957) which informed the debate in the UK stated what many consider to be the most appropriate principle for governments to observe:
- [the function of the criminal law is] to preserve public order and decency, to protect the citizen from what is injurious or offensive and to provide safeguards against the exploitation and corruption of others, ...It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular code of behaviour, further than is necessary to carry out the purposes of what we have outlined.
If the phenomenon of prostitution is politicised (Outshoorn: 2004), governments and the police may see it as a problem that cannot be solved and try to hide it while debating whether to criminalise or decriminalise, regulate or deregulate. But driving prostitution off the streets merely exacerbates the negative aspects of prostitution both for the community and the prostitutes themselves. Social invisibility means that decision makers can ignore prostitution because ordinary citizens have the illusion that it is only a marginal activity on the fringes of society. Unless policy makers admit the extent of the problem and honestly address the issues, nothing is likely to change since the individuals who are in the best position to explain why control strategies are not working or, indeed, what the problem really is, feel no need to speak. Further, if the activities prohibited are consensual and committed in private, this offers incentives to the organisers to offer bribes in exchange for diverting enforcement resources or to overlooking discovered activity, thereby encouraging political and police corruption. As a result, prostitutes are not protected from exploitation by third parties, and the sections of the community actually affected by prostitution are not consistently helped.
[edit] Victims
The consensual transactions between prostitutes and their clients do not usually produce complainants unless either the clients are robbed by the prostitute or the pimp, or the prostitute is beaten by the client or the pimp. This characteristic absence of a direct victim led Schur (1965) to describe prostitution as a victimless crime. But most modern researchers would identify both primary victims in that the prostitutes themselves are frequently coerced, whether by structural forces or human agency, and there are secondary victims among the family, friends and, sometimes, the clients (the element of illegality disturbs the medical control of sexually transmitted diseases within the community). The Netherlands and Germany emphasise the public health aspect in their legislation by rigidly enforcing the periodic medical examination of prostitutes and by providing free compulsory hospitalisation for those found infected. This emphasis on regulation rather than suppression has resulted in a marked decline in the incidence of sexually transmitted disease and has removed an important cause of the bribery of law enforcement officers. Further, in many countries, whether prostitution is legal or illegal, there is an element of organized crime, particularly in human trafficking for sexual purposes. But in Sweden, no one is charged with selling sexual services. No prostitute need fear the law and there are support programs for women seeking to leave the industry. At the same time, both buying sexual services and pimping are illegal. Few buyers are charged because the aim is not to penalise the buyers but to send a message that it is not socially acceptable to buy sex, that women are not commodities, and that prostitution should not be encouraged. Finally, the victims may be the community itself where there is damage to the amenity of an area affected by street prostitution, and the state itself may lose revenue from taxation.
[edit] Gender
Considerable diversity and stratification of experiences are available within prostitution: from straight and gay prostitutes on the street to elite escort services. For these purposes, sexual services may be offered by biological men and women, and the transgendered and transvestite, but arrest statistics show that in those states where buying and selling sex are equally illegal, the tendency is to arrest the service provider and not the customer even though there are significantly more customers than sellers. Thus, it is a fact that more women than men are arrested, and the true extent of the "crime" is underreported. James (1982) reports that, in the United States, the arrest ratio of women to men was 3:2, but notes that many of the men arrested were the prostitutes rather than the clients.
In general terms, the so-called vice crimes involving sex tend to be male-oriented. The majority of customers for sex are male, the use of pornography and the indecent assaults including rape more usually involve male offenders. In those states where homosexuality is a crime, such laws tend more precisely to criminalise male rather than female sexuality. This reflects the more patriarchal and paternalist idealisation of women which has socialised women to less overt demonstrations of sexuality while leaving men with a wider range of socially acceptable opportunities to express their desires and preferences. Indeed, female prostitutes are usually considered members of the lowest social class and lacking status. This does not apply to the men who use their services reflecting the differential in social disapproval. In La donna delinquente, la prostitute e la donna normale, Lombroso applied his biological theory of criminality to women. Because he was convinced that women were inferior to men, Lombroso was unable to argue that women's lesser involvement in crime reflected their comparatively lower levels of atavism, so he built on age-old myths about women's nature to systematically justify his belief in female inferiority, using a control group of "natural women" to demonstrate the degree of wrongfulness achieved by the merely delinquent and those who succumbed to prostitution. This work remained a cornerstone of the Positivist School until the 1940s.
[edit] Feminist perspectives
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Sullivan (1995) argues that universal and essentialist claims about prostitution are unhelpful, i.e. no simple statement on prostitution can say whether it harms or benefits women, nor cover the complexity of what sex work means to either the women who engage in such work, or others who do not. In the academic literature on prostitution there are very few authors who argue that valid consent to prostitution is possible. Most suggest that consent to prostitution is impossible or at least unlikely. For radical feminists, this is because prostitution is always a coercive activity. They claim that under worldwide conditions of male domination and endemic male violence, women are forced into prostitution sex and no real consent is possible. However, even those who do not adopt the radical feminist perspective - and who admit the likelihood of valid consent in non-commercial sexual relations - suggest that there is a particular problem with consent to prostitution as a result of economic and other coercions. In interviews with prostitutes, some perceive themselves as having freely chosen prostitution over other available lifestyles. But Sanchez (1999) points out that the choice was highly constrained by the structural context, i.e. although there was a choice, it was frequently between prostitution or other unpleasant alternatives, like sexual and/or physical abuse at home, homelessness, extreme poverty, etc. The prostitutes themselves merely internalised their choices as voluntary. Another line of significant research has looked at crack cocaine as a cause of an exploitative form of prostitution (see Erickson et al: 2000). Men have discovered that crack is extremely good at reducing a woman's inhibitions, and self-report studies of crack-for-sex are increasingly common. Thus, there would appear to be a general consensus in the literature that consent to prostitution is impossible or unlikely. (Sullivan: 2000) Carrabine et al (2004: Chapter 9) report that some women and children are coerced or sold into prostitution. Others may choose to engage in prostitution and regard it as work, but prostitution is nonetheless a form of restricted and ultimately destructive choice, especially in countries that offer very limited options for women outside the commercial sex industry. Women run the risk of physical and sexual violence at the hands of clients or being harassed by the police on the streets. Society is also affected by the crime because prostitution objectifies women and reinforces stereotypical notions of women.
[edit] Economic and health factors
From a law and order perspective, politicians and local residents who are in favour of clampdowns have also argued that street prostitution is not victimless as it may damage the reputation and quality of life in the neighbourhood and diminish the value of property. Maxwell (2000) and other researcher have found substantial evidence that there is strong co-occurrence between prostitution, drug use, drug selling, and involvement in non-drug crimes, particularly property crime. Because the activity is considered criminal in many jurisdictions, its substantial revenues are not contributing to the tax revenues of the state, and its workers are not routinely screened for sexually transmitted diseases which is dangerous in cultures favouring unprotected sex and leads to significant expenditure in the health services. According to the Estimates of the costs of crime in Australia [1], there is an "estimated $96 million loss of taxation revenue from undeclared earnings of prostitution".
[edit] Canada
Although prostitution itself is theoretically legal in Canada, practising it is not. The Criminal Code prohibits all forms of public communication for the purpose of prostitution (s.213 [5]), and most forms of indoor prostitution as well: owning, running, transporting or occupying bawdy house (ss.210 [6] and 211 [7]), procuring or living on the avails of prostitution (s.212 [8]). The government included prostitution in the mandate of the Committee on Sexual Offences Against Children and Youth (the Badgley Committee), and the Special Committee on Prostitution and Pornography (the Fraser Committee) which helped to promote a significant body of research which has confirmed that approximately 70% of adult males and females working the street began their involvement in prostitution prior to their eighteenth birthday. This finding has spawned a lengthy debate about the causes and consequences of youth involvement in prostitution. The debate about causes of female youth prostitution centres around the role of sexual abuse and other familial factors that may contribute to a girl running away from or being thrown out of the home. While the trend in other western countries has been to move away from criminal sanctions for prostitution, Canada has done the reverse, legislating a tougher anti-communication law (s.213) in 1986. More recently, various government committees and task forces have called for even tougher laws as well as more vigorous enforcement of the current legislation. In 1990 the Standing Committee on Justice recommended yet more strengthening of the laws including fingerprinting and photographing prostitutes and the removal of drivers licenses for those charged with communication for the purpose of prostitution. The evidence is that this criminalisation has not been a success (see Davis and Shaffer: 1994 [2]). Lowman (2002) however reviews the research and points to the prostitution licensing system now operating in Vancouver under The City of Vancouver License By Law No. 4450 which attempts to limit prostitution to two venues: body-rub parlours and escort services. He notes that there is negligible revenue generated from the system and suggests that the reason is that the police do not enforce the laws against unlicensed services.
[edit] Australia
In Australia, prostitution is a matter for States, and laws on prostitution vary from State to State. Most have decriminalised prostitution in varying ways. Regulation (sometimes known as legalisation) permits prostitution in certain forms, usually through zoning (confinement to certain areas) or licensing (licensing a limited number of prostitutes to work in certain areas of a city). Regulation views prostitution as a necessary evil if not a social necessity. The aim is not eradication so much as control, the goal being to keep prostitution limited to areas of town where it will not offend the rest of the citizenry. But regulation does little to change the dynamics between prostitutes and the public in that it legitimises prostitution only to the point that it may be practised in certain circumstances, but does not accord prostitutes any practical rights beyond the right not to be criminally charged in certain circumstances. In this context, decriminalisation also means institutional controls over the lives of those who engage in this work rather than granting the women control over the work they choose. See Egger (1991) and Pinto et al (2005). Australia is a destination country for women who are trafficked into prostitution (there is trafficking for other purposes in Australia, though no research has been conducted which focuses on other forms of exploitation). The Australian Government announced a $20 million counter-trafficking package in October 2003, which recognises women trafficked into prostitution as victims of a crime and offers support to help them recover. However, this does not mean that the Australian Government considers all women in prostitution to be victims of a crime, only that trafficking is a crime. Most women trafficked to Australia are from South East Asia and China with some from Eastern and Central Europe and Latin America. Maltzhan (2004) reports that in Victoria, trafficked women have been located in a number of legal brothels which is an issue that prostitution regulatory regimes have yet to seriously address. "Legalisation legitimises prostitution. Despite the fact that most efforts to regulate prostitution come from a desire to limit the industry and protect women within it, the fact is that sex industry entrepreneurs always have more power than the women in it. They put huge resources into lobbying for recognition of the industry. Over time, what begins as a way to address sex industry criminality and violence becomes the means to portray prostitution as a legitimate industry which should not be criticised. Some elements in the sex industry will always ensure all men's demands are met. Trafficking is one way of doing this."
[edit] India
Rajeshwari (1999) asserts that realistic accounts of prostitution in research contextualise it in the broad frame of the Indian socio-economic structure, adverting to the rural poverty and bonded labour, the gross exploitation of tribal, lower-caste and refugee women, urban red-light areas, disease, policy brutality and corruption, and the increasingly controversial issue of prostitutes' children. According to UNICEF, India contained half of the one million children worldwide who enter the sex trade each year. Many indigenous tribal women were forced into sexual exploitation. In recent years, prostitutes began to demand legal rights, licenses, and reemployment training, especially in Mumbai, New Delhi, and Calcutta. In 2002, the Government signed the South Asian Association for Regional Cooperation (SAARC) Convention on Prevention and Combating Trafficking in Women and Children for Prostitution. The country is a significant source, transit point, and destination for many thousands of trafficked women. There was a growing pattern of trafficking in child prostitutes from Nepal and from Bangladesh (6,000 to 10,000 annually from each). Girls as young as seven years of age were trafficked from economically depressed neighborhoods in Nepal, Bangladesh, and rural areas to the major prostitution centers of Mumbai, Calcutta, and New Delhi. NGOs estimate that there were approximately 100,000 to 200,000 women and girls working in brothels in Mumbai and 40,000 to 100,000 in Calcutta. [3]
The traditional argument supporting prostitution as a phenomenon invokes male sexual need as a "natural" phenomenon that requires fulfillment outside of monogamous marriage - and the prostitute as servicing this need. Its theoretical defence is given in what is termed the "contractarian" argument, according to which the need for sexual gratification is a need similar to the need for food and fresh air (and hence should be as readily available, and, further, that under conditions of "sound" prostitution, sexual services may be freely sold in the market place (Ericsson: 1980). Feminists reject the notion that the powerful male impulse must be satisfied immediately by a co-operative class of women, set aside for the purpose. This is seen as an adrocentric view of sexuality and as reinforcing the psychology of obtaining sexual satisfaction, by rape if necessary. In legal terms, the Indian Immoral Traffic (Prevention) Act 1956, criminalised the volitional act of "a female offering her body for promiscuous sexual intercourse for hire whether in money or in kind". But, under the revised 1986 Act, "prostitution" means " the sexual exploitation or abuse of persons for commercial purpose, and the expression 'prostitute' shall be constructed accordingly" - so there is not only no criminality if there is "offering by way of free contract", there is not even prostitution. More problematic is the status of the transgendered who eke out a living by begging, dancing or prostitution. Indian law recognises only two biological sexes. The PUCL (K) Report (2003), highlights, "The dominant discourse on human rights in India has yet to come to terms with the production/reproduction of absolute human rightlessness of transgender communities. ...At stake is the human right to be different, the right to recognition of different pathways of sexuality, a right to immunity from the oppressive and repressive labelling of despised sexuality. Such a human right does not exist in India."
[edit] First and third world prostitution
First World countries both directly and indirectly encourage Third World countries to develop their sex tourism industries, especially child prostitution. "By 1975, Thailand, with the help of World Bank economists, had instituted a National Plan of Tourist Development, which specifically underwrote the sex industry .. . . Without directly subsidising prostitution, the Act [the Entertainment Places Act] referred repeatedly to the personal services' sector. According to Thai feminist Sukyana Hantrakul, the law 'was enacted to pave the way for whorehouses to be legalised in the guise of massage parlours, bars, nightclubs, tea houses, etc." See Aarons Sach," A prostitute at nine," The Times of India Sunday Review, January 22,1995. With particular reference to children, the United Nations Convention on the Rights of the Child creates specific obligations. Article 34 stipulates that:
- State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, State Parties shall, in particular, take all appropriate national, bilateral, and multilateral measures to prevent:
- The inducement or coercion of a child to engage in any unlawful sexual activity.
- The exploitative use of children in prostitution or other unlawful sexual practices.
- The exploitative use of children in pornographic performances and materials.
As of 2000, twenty four countries had enacted legislation criminalising child sex tourism, e.g. in Australia, the Crimes (Child Sex Tourism) Amendment Act 1994 covers a wide range of sexual activities with children under the age of 16 committed overseas. Laws with extra-territorial application are intended to fill the gap when countries are unwilling or unable to take action against known offenders. The rationale is that child-sex offenders should not escape justice simply because they are in a position to return to their home country. There is little research into whether the child sex tourism legislation has any real deterrent effect on adults determined to have sex with children overseas. It may be that these people are simply more careful in their activities as a result of the laws. There are three obvious problems:
- the low level of reporting of sexual offences by child victims or their parents;
- the poverty which motivates the decision to survive economically through the provision of sexual services; and
- the criminal justice systems which, in the Third World country may lack transparency, and in the First World country may involve hostile and intrusive cross-examination of child witnesses with no adult witnesses to corroborate their evidence.
[edit] The United Nations
Abolitionism criminalises the activities of those seen as exploiting or coercing prostitutes (so-called "pimping" and "procuring" laws) while leaving prostitutes themselves free from regulation. This is the system endorsed by the United Nations in its Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others [4].
[edit] See also
- Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography
- Optional protocol on the sale of children, child prostitution and child pornography
- Special Rapporteur on the sale of children, child prostitution and child pornography
[edit] External links
- Laws, Statistics, and Arrest charts on prostitution
- Prostitution and Sex Work [5]
[edit] References
- Carrabine, Eamonn; Iganski, Paul; Lee, Maggy; Plummer, Ken & South, Nigel. (2004). Criminology - A Sociological Introduction. London: Routledge. ISBN 0-415-28167-9
- Egger, Sandra & Harcourt, Christine. (1991). "Prostitution in NSW: The Impact of Deregulation". in Women and the Law: Proceedings of a Conference held 24-26 September 1991. Patricia Weiser Easteal & Sandra McKillop (eds.) ISBN 0-642-18639-1
- Ericsson, Lars. (1980). "Charges Against Prostitution : An Attempt at a Philosophical Assessment". Ethics. 335.
- Erickson P.G.; Butters J.; McGillicuddy P. & Hallgren A. (2000). "Crack and Prostitution: Gender, Myths, and Experiences". Journal of Drug Issues 30(4): 767-788.
- James, Jennifer. (1982). "The Prostitute as Victim" inThe Criminal Justice System and Women: Women Offenders, Victims, Workers. Barbara Raffel Price & Natalie J Sokoloff (eds.). New York: Clark Boardman. pp291-315.
- Lombroso, Cesare & Ferrero, Guglielmo. (2004). Criminal Woman, the Prostitute, and the Normal Woman. Translated by Nicole Hahn Rafter and Mary Gibson. Duke University Press. ISBN 0-8223-3246-9
- Lowman, John. (2002). Identifying Research Gaps in the Prostitution Literature. [6]
- Maltzhan, Kathleen. (2004). Combating trafficking in women: where to now? [7]
- Maxwell, S R. & Maxwell C. D. (2000). "Examining the "criminal careers" of prostitutes within the nexus of drug use, drug selling, and other illicit activities". Criminology 38(3): 787-809.
- Outshoorn, Joyce (ed.). (2004). The Politics of Prostitution: Women's Movements, Democratic States and the Globalisation of Sex Commerce. Cambridge: Cambridge University Press. ISBN 0521540690
- Peoples’ Union for Civil Liberties, Karnataka (PUCL-K). (2003). Human Rights Violations against the Transgender Community: A Study of Kothi and Hijra Sex Workers in Bangalore, India. [8]
- Pinto, Susan; Scandia, Anita & Wilson, Paul. (2005). Trends & Issues in Crime and Criminal Justice No. 22: Prostitution laws in Australia. ISBN 0-642-15382-5 [9]
- Rajeshwari Sunder Rajan. (1999). The Prostitution Questions(s) (Female ) Agency, Sexuality and Work. [10]
- Schur, Edwin M. (1965) Crimes Without Victims: Deviant Behavior and Public Policy: Abortion, Homosexuality, Drug Addiction. Prentice Hall. ISBN 0-13-192930-5
- Sanchez, Lisa. (1999). "Sex, Law and the Paradox of Agency and Resistance in the Everyday Practices of Women in the "Evergreen" Sex Trade", in Constitutive Criminology at Work. Stuart Henry and Dragon Milovanovic (eds.). New York: State University of New York. ISBN 0-7914-4194-6
- Sullivan, Barbara. (1995) "Rethinking Prostitution" in Transitions: New Australian Feminisms Caine, Barbara. & Pringle, Rosemary (eds.). Sydney: Allen & Unwin. pp.184-197. ISBN 0-312-12548-8 [11]
- Sullivan, Barbara. (2000). Rethinking Prostitution and 'Consent' [12]
- Committee on Homosexual Offences and Prostitution. (1957). Report of the Committee on Homosexual Offences and Prostitution. London: Her Majesty's Stationery Office.
