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Prostitution as a legal category and as a social problem has undergone a reexamination in scholarly and policy debates since the 1970s. This rethinking of prostitution has relied upon a variety of historical and cross-cultural studies. Policy initiatives have increasingly turned to economic approaches, especially to transaction-cost analyses. New attention has been paid to the social position of the prostitute, especially to public health and other aspects of participation in prostitution, as well as to the gender politics of prostitution law and its enforcement. As a result of these studies, the earlier view that prostitution is a unitary and universal feature of human social life is no longer empirically or theoretically tenable. Rather, prostitution as we know it is a function of multiple sociocultural and historical processes, institutional structures, and interactional dynamics.
Social Attribution and The Construction of Prostitution As A Social Problem
Prostitution as a category of crime and social identity is located at the intersection of sexuality and economics. Georg Simmel linked the ‘‘essence of prostitution’’ to the ‘‘nature of money itself’’ (p. 414). A more contemporary study has characterized prostitution as
a business transaction understood as such by the parties involved and in the nature of a short-term contract . . . . [T]o be a prostitute, one has to treat the exchanging of sexual gratification for an established fee as a business deal, that is, without any pretence to affection, and continue to do this as a form of financial occupation . . . . In other words, it must be clearly demonstrated that there is a buyer and a seller, a commodity offered and a contracted price. (Perkins and Bennett, p. 4)
The field of economics and the study of human sexuality have both gone through sharp internal polemics and revisions since the 1970s. Social and criminal justice policy toward prostitution has trailed along somewhat uncertainly in their wake. Indeed, prostitution policy has reacted to these scholarly developments in piecemeal fashion at best, as it has undertaken—in the absence of any single generally accepted conceptualization of the social problem of prostitution—a variety of ad hoc measures to mitigate prostitution’s perceived negative social effects.
Universalist accounts of prostitution have maintained that it has existed throughout human history—the ‘‘oldest profession’’ canard—in all human communities, and even among some animal species. It is difficult to imagine that a historian writing after 1980 would undertake a project so grandiose and allencompassing that it could be entitled The History of Prostitution (Bullough). Earlier scholars’ claims that, for example, ancient Babylonian religious ritual sexual practices or the great variety of short term marital or quasi-marital relations (Islamic law temporary marriage, European morganatic marriage, East African malaya relationships) constitute prostitution seem now to reveal more about the writers’ theoretical commitments than about the social institutions in question (see Bullough, pp. 17–30; Richards, p. 88; and for a critique Pateman, pp. 195–196). Instead, since the 1970s, a great many empirical studies of sexual exchange and of human sexuality in general have exhaustively demonstrated the historical, geographic, and ethno-cultural diversity of the forms of human sexual interaction, identity, and relations (e.g., Davis).
Prostitution as a crime of sexuality and commerce requires that an economy of market exchange exist within a particular social order and that certain forms of sexual interaction be normatively excluded from economic exchange by the force of criminal sanction. Following Ferdinand Tonnies’s classic sociological analysis that posited an ideal-type distinction between Gemeinschaft, a community ordered by kinship and customary obligation, and Gesellschaft, a society organized by free economic exchange, we see that a crime of prostitution could logically exist in neither of them. In a community of reciprocal gift-obligation, nothing could be put on the market for sale to the highest bidder—sexual interaction perhaps least of all. Similarly, in a society of pure economic exchange, everything is understood as available for a price, so that the selling of sexual services could hardly constitute a crime. It is only in a social order where some things are expected to be allocated by buying and selling in a market and other things are not to be sold at all that the selling of sexual interaction can be understood as a criminal offense.
This conceptual problem of how to distinguish between categories of licit and illicit sexual socioeconomic connection is an old issue in feminist thought that has attracted renewed attention since the 1970s. Two hundred years ago, Mary Wollstonecraft described a wife’s status as ‘‘legal prostitution’’ (p. 247). To Emma Goldman in the early twentieth century, ‘‘it is simply a question of degree whether [a woman] sells herself to one man, in or out of marriage, or to many men’’ (p. 179). And for Simone de Beauvoir writing at mid-century, a wife is ‘‘hired for life by one man; the prostitute has several clients who pay her by the piece’’ (p. 619).
Since the 1970s many studies have focused closely on the gender politics of prostitution law and its enforcement. Although the Model Penal Code endorses gender neutrality by drawing no distinction between males and females accused of prostitution (section 207.12(1)), attention to prostitution as a two-sided economic transaction highlights a sharp gender asymmetry in the role of the consumer of sexual services. Markets in sexual services performed by men as well as women and directed toward male consumers are very widely attested. Yet, though it is easy enough to imagine a prostitution market aimed at female consumers, the virtual absence of reports of established markets selling sexual services to women is a robust sociological fact that has compelled a reconsideration of the gender effects of prostitution markets (Pateman).
A heightened concern over the public health aspects of prostitution followed the appearance of AIDS in the 1980s. This concern recalls the nineteenth-century furor over prostitution as path for disease transmission that achieved legal expression in the passage of Britain’s Contagious Diseases Acts of the 1860s. In Carole Pateman’s view, the compulsory public health registration of suspected prostitutes required by these acts was the precipitating factor for prostitution in our contemporary sense. This effect of compulsory registration was to ‘‘professionalize’’ a more or less permanent subclass of women as ‘‘common prostitutes’’ because of the difficulty of removing one’s name once it had been added to the registry list and of subsequently finding other employment. Since the 1980s, public health concerns about AIDS and other sexually transmitted diseases have contributed to the expansion of risk management and transaction cost approaches to prostitution as a social problem. The case law of the 1980s and 1990s in many jurisdictions reflects a ‘‘prostitutephobia’’ (Davis, p. 114) in numerous instances of lengthened prison sentences for prostitution justified as a form of quarantine for public health reasons.
Transaction-Cost Approaches to Prostitution: from Repression to Regulation
Along with many other domains of social life in Western societies, prostitution has increasingly been approached through the lenses of transaction cost economic analysis and risk management. The application of legal economic reasoning has been extended from the regulation of established markets to ‘‘informal’’ economies and, ultimately, to the ‘‘economics of crime.’’ (The work of Nobel laureate Gary Becker is foundational here; see also Hellman, pp. 129–144; Posner, pp. 70–80.)
This widespread turn to economic approaches does not, however, imply any general agreement on prostitution policy. Some economic theorists have proposed quite classical Benthamite rational disincentives to deter prostitution as criminal conduct (Hellman). Others have followed Nobel laureate Ronald Coase’s theory of the internalization of social costs (‘‘negative externalities’’) in economic transactions (Coase; Posner, 1992). Still others have argued that prostitution should be promoted as a form of free economic exchange just like any other economic activity that increases aggregate social wealth (these two latter views are not inconsistent with one another; see the extremely influential work of Richard Posner (1992)).
Further, mutually opposing normative views of the labor economics of prostitution structure the debate between the social movements that seek, on the one hand, to advance prostitutes’ rights as ‘‘sex workers’’ and, on the other, to ‘‘rescue’’ prostitutes from exploitation in unconscionable labor conditions (Jenness). Recognizing prostitution as a two-sided economic transaction between a sexual service provider and a consumer reframes the ‘‘prostitution question’’ away from focusing solely on the alleged criminality or sociopathology of the prostitute and redirects attention to the consumption behaviors of the customer.
Typology of Prostitution
The usual taxonomy of ‘‘types’’ of prostitute thus becomes differently interpretable as a socially stratified array of sexual-market consumption niches. These ‘‘market segments’’ can be distinguished from one another by place, by manner of solicitation, and by price level (Reynolds). It is instructive that many of the most commonly identified markets for sexual services are ambiguously positioned between legal and illegal forms of commercial bodily interaction: massage parlors, studios for nude photography, strip clubs, stag parties, and other erotic dance venues. In such socially liminal spaces, the boundary line between licit and illicit encounters is permeable and negotiable on a flexible, occasional basis, and is therefore correspondingly difficult to study empirically or to police effectively.
A brief survey of common prostitution ‘‘types’’ or ‘‘market segments’’ illustrates the sorts of questions that confront both social scientists and criminal justice professionals.
Streetwalkers are prostitutes who make themselves visible and commercially available on urban streets. They solicit customers who are passing on foot or in automobiles. Services are performed in customers’ cars, in nearby hotels, alleys, doorways, and so on. On average, these prostitutes command the lowest prices, they typically have the least bargaining leverage over condom use and choice of sexual practices, and they have the highest risk of harm from customers or others. They are generally considered to generate the highest levels of negative externalities in terms of diminished neighborhood property values, association with other criminal activities, and ‘‘curb-crawling’’ by their customers. Not surprisingly, they also run the highest risk of arrest.
Some prostitutes solicit customers in bars, clubs, and hotels, especially those frequented by conventioneers and other likely customers. Prostitutes often collaborate, and must share their revenues, with either the manager of the bar or club or, in the case of hotels, a bellhop or desk clerk who refers clients to the prostitute. Services may be provided in the establishment, in a dark corner or back room of a club, or in a hotel room rented by either the prostitute or the customer. The prostitute’s income varies from fairly low to quite high according to the prestige and price range of the establishment and its clientele. The prostitute’s net income also varies according to the percentage of fees demanded by the manager or employee(s) of the establishment in exchange for referrals, protection, or simply for looking the other way. The prostitute’s risk of harm and arrest are low to moderate as long as the collaborative relation with the establishment is maintained and the prostitute does not venture into unfamiliar territory.
Escort Services and Call Girls/Boys
Some prostitutes operate on an ‘‘outcall basis’’ and therefore, unlike streetwalkers and bar/hotel prostitutes, are not restricted to a specific site. However, their calls are most often to locations where there are well-to-do clients who prefer the insulation of an intermediary referral service. Customers are typically assigned to prostitutes by the escort agency, which first charges a fee to the customer. The prostitute then negotiates with the customer the price for specific services. Like escorts, call girls/boys also rely upon referral and screening either by an agent, by a restricted circle of other prostitutes in the same market, or by familiar clients. The prices in this market segment reach the highest levels. The prostitute has considerable bargaining leverage over condom use and sexual practices. The risk of harm or arrest is lessened by reliance on an intermediary, and by the fact that this market segment tends to be limited to upper-income customers whose need for the appearance of propriety minimizes negative externalities and diminishes the likelihood of violence or other reason for police intervention.
House or Brothel Prostitutes
The only legally tolerated prostitution in the United States is found in the brothels permitted in the rural counties of the state of Nevada, at the discretion of the individual county. Nevada’s current legal regime dates to shortly after World War II (prostitution had been outlawed during the war to minimize sexually transmitted disease among the large numbers of troops undergoing training in Nevada). Typically, the prostitutes at Nevada brothels are women from outside Nevada who are brought in on short-term contracts, living at the establishments for two or three weeks at a time with one or two weeks off. They are expected to spend long shifts on display in a bar/lounge reception area where prices for services are posted, to accept any customer who chooses them, then to take the customer to another room to perform the services contracted. The customer typically pays the house and the prostitute later receives 40 to 60 percent of the revenue that she has generated, sometimes with deductions for room, board, and supplies. Prostitutes in this market segment enjoy the highest level of protection from their customers since they work in a highly controlled environment where condom use has been enforced since the late 1980s. However, they have little personal autonomy or bargaining leverage over working conditions with their managers. They are typically controlled by state and county regulations that require them to be fingerprinted and to undergo weekly medical examinations; other legal regulations (of doubtful constitutionality) frequently prohibit the prostitutes from joining or even mingling with the communities in which the brothels are located. In many other parts of the United States, various forms of house prostitution exist illegally, though not infrequently with the tacit tolerance of the authorities (sometimes purchased), as long as public visibility and negative externalities are kept to a low level.
Miscellaneous other Markets
Since prostitution is a highly flexible segment of the informal economy a great variety of other prostitution arrangements exists. Many prostitutes move in and out of prostitution as their financial needs dictate. Some are seasonally active as they, for example, follow mobile encampments of migrant workers in agriculture, the lumber industry, summer and winter resort traffic, or even sports and music tours.
Regimes of Prohibition, Criminalization, and Regulation
The 1980s and 1990s saw different faces of prostitution presented in American media. The 1980s case of Sydney Biddle Barrows, the ‘‘Mayflower Madam,’’ and the 1990s case of Heidi Fleiss, the ‘‘Hollywood Madam,’’ brought public scrutiny, even celebrity, to the world of elite call girls who earn thousands, even tens of thousands, of dollars per day for their services. Over the same period, the expansion of crack cocaine consumption in poor urban neighborhoods contributed to the appearance of the ‘‘crack whore.’’ The ‘‘crack whore’’ has become an urban American social type, a persona that is at once a depiction of the most severely drug-addicted, impoverished street prostitutes as well as a rhetorical figure summoned up in policy debates over ‘‘welfare reform’’ and the ‘‘war on drugs.’’ Socioeconomic studies of the lives and livelihoods of such drug-addicted prostitutes reveal that their income is often less than the federal minimum wage (Maher and Daly).
Academic, political, and criminal justice policy debates frequently hinge on whether one takes the ‘‘entrepreneurial call girl’’ or the ‘‘crack whore’’ as the paradigm case of prostitution, that is, whether the underlying ‘‘cause’’ of prostitution is free individual choice or socioeconomic and psychopharmacological compulsion. Arrest statistics showing that the vast majority of those charged with prostitution offenses are lowincome urban ethnic-minority women are commonly cited to support the latter position. Yet, empirically, it is difficult or impossible to falsify the counterclaim that there exist large numbers of prostitutes who go about their business providing services and contributing to the economy in low visibility, informal market sectors and who are rarely or never arrested. Ultimately, there remains a lack of conclusive empirical findings and criminal justice policy is often mired in the politics of folk moralizing embodied in the warring media stereotypes of glamorous call girl versus pitiable crack whore. As a result, most American jurisdictions retain criminal statutes strictly prohibiting prostitution with little or no change from a century ago.
The legal prohibition in force in all U.S. jurisdictions except Nevada’s rural counties is something of an anomaly in the global context. In most of Western Europe, India, Southeast Asia, Canada, Australia, the Pacific, and much of Latin America the policy regimes governing prostitution tend not to criminalize sexual commerce itself (which is usually not fully legal, but rather ‘‘decriminalized’’). Instead, these countries generally criminalize prostitution-related activities such as solicitation, advertising, living off another person’s earnings from sexual commerce, and recruiting and transporting persons to engage in prostitution (in the United States, most of these activities are also criminally sanctioned in addition to prostitution per se). The criminalization of activities associated with prostitution shades subtly into other regimes that are intended to regulate the conduct of prostitution while at least implicitly tolerating it (see Davis).
In Western Europe and certain other regions such decriminalization and regulatory approaches have led to a dual market in prostitution. Most European Union residents can engage in prostitution without criminal sanction, yet at the same time there also exists a widespread illegal secondary prostitution market made up of tens of thousands of migrants from Eastern Europe, Asia, and Latin America. These migrants practice prostitution in an underground economy, for lower earnings and in lesser conditions, fearing arrest, deportation, and coercive violence from their employers.
In virtually no country has prostitution been entirely accepted as a legitimate profession with the full social rights, worker protection, pensions, and other benefits accorded to other laborers and business enterprises. Whether legally prohibited, decriminalized, or regulated, wherever prostitution is practiced it remains a liminal social space subject to regimes of social control. Increasingly, no matter whether prostitution per se is legal or not, criminal justice and other social control strategies are directed toward minimizing the negative externalities (undesirable effects upon third parties or on society in general) that result from prostitution transactions.
A growing tendency is to make use of strategies for spatially segregating prostitution and activities associated with it in order to manage or minimize perceived externalities. This echoes the long-time practice in many cities where overt prostitution is de facto shunted into specific enclaves, often called ‘‘red light districts.’’ These have usually been ‘‘low-rent’’ neighborhoods, that is, low-valued land-use urban zones, in or near ethnic minority or migrants’ residential areas. It is illustrative of the spatial logic of minimizing the social costs of prostitution that the only place where it is legally tolerated in the United States are certain rural counties of Nevada—areas with very low population densities whose economic development alternatives include military weapons testing sites and toxic waste dumps.
In nearly all other American jurisdictions where prostitution is prohibited, it exists nonetheless and is in effect regulated through various spatially differentiated control strategies. Dallas, Texas, is an example of what has been called the ‘‘Control Model’’ (Reynolds). Here, police pressure is exerted to keep prostitution all but invisible in Dallas, except for some poorer neighborhoods. A certain amount of hotel and call girl/boy prostitution is tolerated as long as it remains confined to the convention trade and the more highly visible streetwalking is confined to poorer minority communities in the region.
San Francisco, a city that prides itself on its cosmopolitan tolerance, has been a long-time example of the ‘‘laissez-faire model’’ of prostitution regulation (Reynolds). One might describe this as a regime where nothing is legal but everything is permitted. Historically, overt street prostitution has flourished in the Tenderloin district and certain other lower-income neighborhoods. It is periodically suppressed by police pressure, just enough to minimize unsightliness that might offend the tourist trade. Much like Western European regulatory policies, San Francisco police strategy has often been to prosecute incidents of theft and violence associated with street prostitution but not to pursue the sexual offenses themselves. Call services and other less visible forms of prostitution are only rarely targeted by vigorous police enforcement.
In the 1970s, the city of Boston decided to use zoning law to localize de jure the city’s ‘‘adult businesses’’ within a single neighborhood called the ‘‘Combat Zone.’’ Although prostitution was not legalized, it was to a large extent effectively enclosed along with adult cinemas, pornography shops, and massage parlors. This extremely influential strategy has been called the ‘‘zoning model’’ (Reynolds). It sets up something rather like a sexual version of the ‘‘free trade zones’’ that exist in seaports and border towns, exempted from ordinary tariffs and regulations. Such spatial concentration of sex-oriented business may in fact lead to greater efficiency for sexual commerce because of lower search and transaction costs. However, the zoning model’s greatest influence has been as a strategy for localizing and managing the risks and externalities associated with prostitution and other sexual commerce.
In the 1990s, other cities (notably Portland, Oregon) have employed zoning in a different fashion. Rather than quarantining sexual commerce by zoning it into a specific urban area like Boston’s Combat Zone, now zoning is used to exclude prostitutes by establishing ‘‘prostitutionfree zones.’’ Drawing upon new urban strategies such as business improvement districts and areaspecific gang-abatement injunctions, people who have been identified as known prostitutes are legally banned from whole sections of the city. The ‘‘cleansing’’ of New York City’s Times Square in the 1990s is another example of such exclusionary strategies.
These adaptations of zoning law for the suppression, displacement, and spatial regulation of vice are part of a broader policy shift from strictly criminal repression to a flexible mix of criminal and civil sanctions in the crafting of new regulatory regimes. Although no jurisdiction has maintained customer-arrest levels equal to the arrest of prostitutes, there has been a new attention to this disparity. Some cities, notably San Francisco and Portland, have established programs modeled on so-called traffic schools for automobile driving infractions. Although these ‘‘therapeutic’’ programs are in principle available to prostitutes as well as to their customers, they are commonly referred to as ‘‘john schools’’ and have reportedly been little used by arrested prostitutes (Meier and Geis, pp. 52–53).
The fundamental problem of how to conceptualize prostitution—as sin, as crime, as enslavement, as productive work, as disease vector, as social risk profile—and of how to approach it in policy and practice became more acute in the 1980s and 1990s (Davis). The trends toward globalization in communications and the economy, in migrant labor flows, in international ‘‘sextourism,’’ and in the spread of AIDS and other diseases have exposed the inadequacies of traditional, locally focused efforts to understand and to address prostitution (Truong, 1986, 1990). The conceptual incoherence of sociolegal theories is compounded by the radical complexity of global jurisdictional differences in legislation, in criminal justice policies, and in social consequences. Prostitutes from the most impoverished and disease-afflicted areas of the world walk the streets of the wealthiest countries as ‘‘sextourists’’ flow in the opposite direction. As media panics about disease epidemics and about the sexual exploitation and even enslavement of children as well as adults seize the short attention span of the global public, the dimensions of the problems are rapidly outpacing the authority and even the scope of vision of local and national governments.
International law instruments such as the 1949 UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (only ratified by about one-third of the UN member states as of 1998) are still no more than tentative and rudimentary efforts. Nongovernmental organizations are considerably more in touch with the rapidly changing global facts of prostitution at the beginning of the twenty-first century, but they too suffer from the lack of any shared conception of the problems and they routinely expend their limited resources working at cross-purposes to one another. In few other domains of crime and justice is there a more urgent need for more and more rigorous empirical research on a worldwide scale and for a fundamental theoretical reorientation.
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