Legalizing Prostitution: From Illicit Vice to Lawful Business (11 page)

Efforts against indoor operations typically involve considerable planning and resources, and large-scale operations can last months or years. In one case, federal agents raided more than 40 upscale escort agencies in 23 cities—the culmination of a two-year investigation costing $2.5 million.
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Seattle police recently launched an elaborate sting operation in which officers placed ads and photos on Craigslist and made appointments with men who responded to the ads; a total of 104 men were arrested after they appeared at an expensive condo rented by the police department and were observed discussing a price with the female vice cop.
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In another case, a vice squad officer in Omaha, Nebraska, posing as a visiting businessman, arranged a date with an escort he met online and had a limo pick her up and deliver her to a hotel, where the two drank wine, only to end in an arrest. A taxpayers’ group accused the Omaha police of wasting resources in the operation. The group’s president complained that the police “were not good stewards with the taxpayers’ dollars in spending the resources that were spent to have her arrested on a misdemeanor charge.”
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Indoor investigations can be faulted not only for misusing resources that could be devoted to street prostitution but also for sometimes crossing the line of propriety:

• On more than one occasion, vice officers in Lynnwood, Washington, allowed prostitutes to masturbate them before making an arrest. When questioned about this, Police Chief Paul Watkins stated, “The officers didn’t cross that line of engaging in intercourse or oral sex. I advised them no oral sex, no intercourse, that’s not going to happen. That’s the understood policy.” Neighboring counties prohibit masturbation. A King County sheriff’s department sergeant stated, “I can tell you personally, as a vice cop … I never accepted an offer, nor did anyone I know of that I worked with then. I also have no
knowledge of any of our vice officers agreeing to sex during investigations. The prostitution law is you make an offer and they agree, sex for money, … and you can make an arrest.”
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• In 2001, two troopers in the Pennsylvania State Police received oral sex from a masseuse before busting a massage parlor in Duncansville. The officers claimed they needed this lip service in order to gather enough evidence for an arrest. The local district attorney said that his office did not look favorably on the “extra steps they took” but also claimed, dubiously, that their actions were no worse than when an undercover cop buys drugs. The officers were not disciplined for their actions, and prosecutors declined to charge the massage parlor’s owner.
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• For at least a decade, vice cops in Louisville, Kentucky, have had sexual contact with women in massage parlors prior to arresting them. In fully half of the arrests, officers’ reports mentioned that a masseuse had fondled their genitals or provided oral sex.
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Under Kentucky law, police only need a verbal agreement of sex for pay to make an arrest. When the story broke in the city’s newspaper in 2004, the police chief claimed that he was unaware of the practice, but the county prosecutor revealed that he had sent a memo to the police in 2002 insisting that the practice be discontinued. The head of the vice unit tried to justify it on the grounds that the women had become savvy in spotting undercover officers partly by initiating sexual contact to see if the man recoils.

• The same practice is followed in Spotsylvania County, Virginia, but there only unmarried officers are involved in massage-parlor busts. The chairperson of the county’s Board of Supervisors questioned the tactic and said that officers should be focusing on violent crimes rather than “pursuing pleasurable acts.”
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• In Allentown, Pennsylvania, the state police paid an informant on four occasions to have sex with women at a spa in 2006 (he received $180 for his time and $360 to pay the women for sex). State police policy prohibits officers from engaging in such tactics, explaining why they use informants instead. Dismissing the charges against the spa owner, a judge expressed his displeasure at the practice: “No adequate supervisory guidance was provided, no standards existed for this type of investigation, and some of the behavior by the participants was sophomoric. We expect more from the police, and demand that they conduct their investigations and utilize their resources without resorting to such embarrassing investigative techniques.”
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• Confidential informants also engaged in sexual acts in Nashville, Tennessee, and were paid $100 per bust. Police policy prohibits officers from disrobing
during an investigation,
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but the district attorney argued that a recorded agreement on a price should be sufficient to make an arrest (as it is in most other jurisdictions) and added that it was “contradictory letting the confidential informant engage in the very act you’re trying to stamp out.” In response, the head of the vice unit defended the practice: “What’s the greater good? It may be distasteful to some people, but it’s better that we have those places shut down.” In 2002–2004, a total of $120,000 was spent on such encounters, with informants receiving more than $70,000.
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These are just a few of many instances that raise questions about the ways in which scarce resources are being used and the propriety of some of these investigations. But there are other costs as well. Crackdowns on indoor prostitution can have the unintended result of increasing the number of streetwalkers, thus exacerbating the most problematic side of the prostitution trade. Closures of massage parlors and other indoor venues have had precisely this effect in some cities.
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As a New Orleans vice officer observed, “Whenever we focus on indoor investigations, the street scene gets insane.”
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When I accompanied Washington, DC, vice officers as they arrested clients on the street, the officers told me that “most cops think prostitution should be allowed in hotels but not on the street.”
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Whether or not this is a widely held view among police officers, under the two-track policy resources would be redirected toward street prostitution.

The success of a policy of nonenforcement toward indoor prostitution would require that it be implemented without fanfare in the United States. A public announcement that a city had decided to take a “hands off” approach to this variety of sex work might serve as a magnet drawing outside workers and clients into the locale. But in cities where it is not already standard practice, an unwritten policy of nonenforcement might be a sensible innovation. It would free up resources for the more pressing problems on the street and might have the effect of pushing at least some streetwalkers indoors, as one official commission reasoned: “Keeping prostitutes off the streets may be aided by tolerating them off the streets.”
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Does the two-track approach unfairly target the street market? Inherent in any two-track approach are disparate effects on actors associated with each track, and with respect to prostitution there are legitimate grounds for differential treatment: (1) certain other types of commercial enterprise and individual behavior (e.g., nudity, urination, being drunk and disorderly) are prohibited on the streets but not indoors and (2) “this kind of policy may not be considered too inequitable if the costs inflicted on society by the street
prostitutes are greater … than from those working in hotels” and other indoor venues.
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The legal principle on which this proposal rests is that the criminal law should not interfere with the conduct of consenting adults, provided that this conduct does not threaten the legally protected interests of others. Whereas street prostitution is associated with a variety of harms to workers and to host communities, indoor prostitution is in accord with the harm-reduction principle.
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This was the position taken by the Wolfenden Committee as well as a San Francisco commission, which concluded that “continued criminalization of private, non-visible prostitution cannot be warranted by fear of associated crime, drug abuse, venereal disease, or protection of minors.”
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More recently, a Canadian government commission declared, “The concern with the law is not what takes place in private, but the public manifestation of prostitution,”
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and a second Canadian commission concluded that “the two objectives of harm reduction and violence prevention could most likely occur if prostitution was conducted indoors.”
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The policy implication is clear: “reassign police priorities to those types of prostitution that inflict the greatest costs,” namely, street prostitution.
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A major advantage of the two-track model is that resources previously devoted to the control of indoor prostitution can be transferred to where they are most needed: the street-level sex trade. Under this model, the central objective of the police and social service agencies would be (1) to protect prostitutes from violence and (2) to assist them in leaving the streets. This approach is far from the norm in the United States, but it has been applied to minors in some cities (e.g., Boston, San Francisco).
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Under a 2008 New York law, persons under age 18 arrested for prostitution are channeled into services and programs (including safe houses, counseling, vocational training, health care) instead of being charged with a crime and prosecuted.
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The youths are still arrested, which seems necessary in order to compel compliance, but they are not stigmatized by prosecution and formal punishment. This policy could be extended to adults involved in street prostitution.

Street prostitution in America is hardly a harmless vice. First, it is an
ecological problem
insofar as it adversely affects the quality of life of host communities. These harms include disorderly conduct on the part of prostitutes, customers, and pimps; public health dangers from discarded paraphernalia (used condoms, syringes); exposure of local residents, including children, to the sight of sex conducted in alleys, cars, bus stops, parks, and so forth; propositioning
of male residents by prostitutes and propositioning and harassment of local women and teenage girls by clients; traffic congestion and noise from clients cruising in their cars; declining property values in the surrounding community; and collateral crimes such as drug use and sales, robbery, assault, and rape. The degree to which these problems occur varies over time and place, but as a general rule street prostitution is associated with a host of tangible environmental problems.
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Second, street prostitution is a multifaceted
social problem
whose harms are not reducible to its illegality. Many streetwalkers are underage, runaways, homeless, or economically distressed, selling sex out of desperation (“survival sex”); they are at high risk of drug abuse, unsafe sex practices, and victimization. The push factors that lead individuals into street prostitution (e.g., poverty, unemployment, running away from abusive parents) will not be alleviated if street-level transactions are simply decriminalized. For youths, preemptive intervention is needed, such as school programs to increase awareness of and options for reporting abuse by a family member, and warnings about the risks of running away from home. For adults, some European cities have experimented with permitting street prostitution in a designated zone governed by a set of rules and regulations (overseen by gatekeepers, service providers, and police). Over time, some of these zones encountered problems, such as an oversupply of prostitutes, making the area unmanageable. Moreover, the status of the workers did not change: they remained disproportionately poor, drug addicted, and socially marginalized.
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In settings where street prostitution is illegal and completely unregulated, as in the United States and Canada, it is fairly policy resistant. One analyst even concludes that “short of longer prison sentences for prostitutes … nothing seems to work.”
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Yet street prostitution is not completely incorrigible. If it is treated as a social problem rather than as a narrow law enforcement problem, it is possible to reduce its prevalence. The street population has special needs because of its manifold, adverse life experiences—including drug addiction, sexual trauma, social stigma, arrest records, and physical and mental health problems.
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In most American cities, resources are scarce for sex-trading populations, with the exception of a few small nongovernmental organizations that attempt to help prostitutes leave the trade.
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The dominant approach is overwhelmingly coercive rather than rehabilitative, yet past experience abundantly shows the failure of narrowly punitive intervention. Without assistance from service providers and meaningful alternatives to prostitution, there is little opportunity to exit. Reducing the amount of street prostitution requires holistic programs of temporary housing, job training,
drug treatment, health care, counseling, education, and other needed services. Such multiagency interventions have been tried, with varying degrees of success, in Britain,
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and a similar comprehensive approach in the United States stands the best chance of reducing street prostitution, bearing in mind that the push factors (homelessness, poverty, abusive relatives) will continue to feed the supply unless these forces are also tackled.

A few blue-ribbon panels have recommended changes consistent with the two-track model. Commissions in Atlanta and San Francisco have advocated a dual approach for precisely the reasons just described.
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And a landmark 1985 Canadian commission argued that abating street prostitution would require legislation allowing prostitutes to work somewhere else. It recommended a “cottage industry” approach—that is, permitting one or two prostitutes to work out of their own residence,
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a proposal subsequently endorsed by another Canadian task force and by a British government agency.
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Indoor work by one or a few providers was seen as preferable to work on the streets or in brothels since it gives the workers maximum autonomy and shields them against exploitation by pimps and other managers. The second Canadian commission also recommended giving provincial authorities the option of legalizing small, nonresidential brothels, subject to appropriate controls. A majority of Canadians support these proposals. In a 2009 survey, 60 percent approved of “allowing prostitutes to work indoors in brothels.”
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In England, it is legal for a single person to sell sex in his or her residence, and the Home Office recommended that it be legal for three people to work in the same residence.
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The recommendation was rejected by the government.