Current Events

Should Prostitution Be Decriminalized?

By Karen Wigle Weiss

Karen Wigle Weiss is an attorney with over 28 years experience as a prosecutor in the Greater New York City area. She has represented victims of human trafficking in their efforts to expunge prostitution-related convictions and has authored a report on Safe Harbor Laws, which are focused on treating victims of human trafficking as victims rather than criminals.

Many people, including legislators, have a knee-jerk positive response to the question of whether prostitution should be decriminalized because they wrongly believe that it is a “victimless crime.” But, as survivors of sex trafficking report, nothing could be further from the truth. My contact with survivors of sex trafficking, as well as the experiences of others who work in the field of anti-trafficking, overwhelmingly establishes that prostitution is neither sex, nor work and it far from harmless. Rather, it is a brutal form of slavery, often inflicted on children, and resulting in ruined lives.

The question of whether prostitution should be decriminalized must be approached from the perspective of how to best protect vulnerable children.  A nuanced analysis of the question requires consideration of the impact of decriminalization on vulnerable people, including children.

Arguments in favor of decriminalization of all prostitution-related activity are grounded on the false assumption that people engage in the activity voluntarily as an exercise of their own free will.  For the vast majority of prostituted people this assumption is groundless. Often the age of entry into prostitution in the United States is between 13 and 14 years of age. Children subjected to serial rape for extended periods of time are extremely traumatized and completely lack the support necessary to escape.  Thus, it is highly unrealistic to conclude that upon reaching their 18th birthday they are able to make a reasoned, independent decision to pursue prostitution as a profession.  They have suffered, often for years, under the control of manipulative, brutal pimps who have drained them of any sense of self worth and frequently induce them to become dependent on drugs or alcohol. True free choice is well beyond their reach.

Recently, several New York legislators have proposed an extraordinarily broad decriminalization of prostitution and all prostitution-related activities, including pimping, brothel running, and sex buying.  This misguided proposal clearly arises out of a failure to engage in the necessary analysis of all aspects of the problem. The legislators appear to have allowed themselves to be influenced without taking into account several important factors.

First, the group advocating for complete decriminalization has a financial interest in the profitable industry that would result from the suggested legislation.  Second, the people purportedly represented by adults who voluntarily engage in or wish to engage in prostitution as a profession, is an extremely small, unrepresentative cross-section of people subjected to prostitution.  Public policy should be based on an evaluation of the greater good for the largest portion of the population, not the greater good of a small handful of people.

In order to craft decriminalization legislation that reflects reality and supports justice for victims legislators should consult with non-profit organizations that have spent decades studying prostitution-related issues and are familiar with the experiences of children who have been subjected to prostitution.  Criminal legislation should reflect condemnation of what society considers unacceptable behavior to discourage people from engaging in that behavior. It should also reflect protection of innocent people, who are victimized by the bad actors. In short, laws should be designed to protect and promote the welfare of those who are sex trafficked, while holding accountable those who would harm them.

In the context of prostitution, these ideals can be implemented by decriminalizing the actions of prostituted people.  Specifically, repealing statutes that result in the arrest of prostituted people, such as prostitution and loitering for the purpose of prostitution.  And, at the same time enacting or enforcing laws that will result in the arrest and prosecution of people who sell and buy, or facilitate the sale and purchase, of other human beings.  This type of legislation has been labeled the Nordic or Equality Model.

Legalizing pimping, brothels and sex buying harms vulnerable people -- especially children.  Children are regularly targeted by sex traffickers and sold on internet sites. Sex traffickers prey upon children who have often been abused at home, are homeless or in foster care, both online and in the streets.  Legalizing pimping will only encourage pimps to target more and more vulnerable children. Moreover, normalizing the prostitution industry by legalizing pimping, brothels and sex buying risks creating a false perception that it is a victimless activity and leading naïve, immature teens into believing that it is a good way to make money.  Thus, more young people will find themselves caught up in a destructive activity that has a devastating impact on their brain development and their futures.

It is the responsibility of legislators to draft laws that give high priority to the safety and welfare of children.  The broad decriminalization legislation now proposed by a few New York legislators fails to do so. They would do well to re-direct their efforts to improving the social safety nets for survivors of sex trafficking and vulnerable youth, such as shelters, education and prevention services to help youth learn how to avoid falling victim to pimps.