Prostitution is currently an extremely controversial topic in the United States. Some believe that it is an immoral act and should be universally prohibited, while others believe that it is a personal decision in which the government should have no say. With its roots in ancient history, the presence of prostitution is evident all over the world in different forms. Prostitution in the United States has become a nationwide industry believed to gross more than one billion dollars per year, involving a minimum of 500,000 women (Geis 173). It is prohibited by law in all states except Nevada. The legal prohibition of selling sex creates an unequal, coercive relationship between the individual and the state and allows the government to legislate the morals and beliefs of its citizens. It is atrocious that the United States government can deprive its citizens of the liberty to make choices on their own accord with regard to their lives and sexual activities. The laws that prohibit prostitution are arbitrary and discriminate against women. These laws should be repealed or amended, and prostitution should be legalized and/or decriminalized in order to restore the freedom of which United States citizens have so long been deprived.

Laws prohibiting the sale of sex are arbitrary and unsubstantiated for many reasons. An interesting analogy, put forth by Kenneth Cauthen, applies in this case: tobacco kills about 400,000 people a year, and though we as a society are well aware of the detrimental effects that smoking cigarettes can have on our health, they are still available to be purchased in most every grocery store. Meanwhile, consensual sex, if it involves the exchange of money, is punishable by law (Cauthen 1999). Thus, even though the government is aware that smoking is "bad for us" just like prostitution, the government still allows cigarettes to be sold, while it chooses to prohibit the sale of sex, which is also seen as bad and unacceptable social behavior. It seems as if the government simply arbitrarily choosing what to prohibit and what to allow.

Sexuality is a concept so diverse that it is difficult to legislate it without discriminating against individuals. The range of meanings and consequences associated with sexual activity is so great that generalizations are probable and hazardous. The concept of casual sex can have different meaning or importance to different people. For some, casual sex can be meaningful, while it can mean nothing to others. Therefore, though some may see prostitution as abominable, there are others to whom buying sex can be just as meaningful as unsolicited sex. We cannot allow the government to classify sexual practices, whether commercial or done freely, as simply good or bad. Human sexuality is too complicated and ambiguous to be categorized without depriving people of their freedom (Cauthen 1999). Further, the difference between casual sex and prostitution is difficult to ascertain if one removes the monetary variable. The only conspicuous difference between casual sex and prostitution is that the latter involves payment while the former does not. Casual sex cannot be regulated by the state, so in that sense it seems arbitrary that the government attempts to regulate sex for hire. A woman can have sex with as many partners as she desires if she chooses to as long as she does it for free. However, if she charges money, she can go to prison (Cauthen 1999). This does not seem to be fair legislation.

To believe that the government has the right to prohibit prostitution is to believe that it has a say in the voluntary acts of consenting adults in this nation. This, however, is not the case. The consensual acts of adults are of no concern to the state. Criminalizing sexual activity is an unnecessary, oppressive restriction of individual liberty. The law especially victimizes women, because it denies them the freedom to pursue prostitution if they want to, and to do so in a safe and healthy environment (Cauthen 1999).

Furthermore, the laws that attempt to regulate the sexual activity of citizens are unrealistic and a waste of money and personnel. Like both the failed efforts to prohibit the manufacture and sale of alcohol during the era of Prohibition and the war against illegal drugs, treating prostitution as a crime has not worked and will continue to be ineffective in the future. It is expensive to our already-depleted national budget, it takes time and resources, and uses personnel that could be used more effectively elsewhere in the criminal justice system (Cauthen 1999). If we were to utilize our resources in more areas that are essential to the well-being of the nation, the liberties of citizens would be more intact, and the nation would be safer from things that it truly needs protection from.

Prostitution in the United States has deep roots. Colonial America saw prostitution, but on a much smaller scale because of the rural nature of the country. While prostitution exists in rural areas, it is generally more of an urban phenomenon. There was also a shortage of women, so that almost every eligible woman had a husband or male partner of some sort. At the same time, there was an increase in the number of slaves and indentured servants. Women who belonged to these groups were not prostitutes per se, but they were often "prostitute-replacements," performing the same sexual duties as a prostitute would, but without pay and many times against their will. On the frontier, many men lived with Native American women, although they did not always marry them, thus also lessening the demand for prostitutes (Bullough 187).

Prostitution in the United States eventually increased, mostly due to the Industrial Revolution and the mass migration to the United States, which together were catalysts for urbanization.

As prostitution increased rapidly, Americans made attempts at controlling and prohibiting it. Following the Civil War, state governments made several attempts at regulation, such as licensure and medical evaluations to prevent the spread of disease (Bullough 193). However, as efforts were made at control, prostitutes and their clients found ways to get around them. This snowballed into the prohibition of prostitution and the negative social labeling of prostitutes that we see today.

Many of the social labels placed on prostitutes are simply propagandized ways of placing blame on certain individuals for the moral downfall of society. William Acton published his book Prostitution in 1857 (It was published a second time in 1968), discussing his views on the immorality of prostitution and how it is conducive to the downfall of an otherwise moral society. He also set forth his extensive etiological theories about prostitution: how it came about, why it was so common in American society, and what could be done about it. Explaining one of his theories about the causes of prostitution, Acton wrote

"Every unchaste woman is not a prostitute. By unchastity a woman becomes liable to lose character, position, and the means of living; and when these are lost is too often reduced to prostitution for support, which, therefore, may be described as the trade adopted by all women who have abandoned an honest course of life." (Acton 118).

In this quote, Acton blames women for the problems of prostitution, which at the time was the general feeling toward the problem. He does not even bring up the fact that males can be, and generally are, involved in the act of prostitution. Men are not at fault, it seems, as it is the woman who is solely the cause of the problem. Acton goes on to delineate further causes of prostitution, which over and over again blame women and absolve men. He says:

"...many women stray from the paths of virtue, and ultimately swell the ranks of prostitution through being by their position peculiarly exposed to temptation. All of these many, no doubt, fall through vanity and idleness, love of dress, love of excitement, love of drink . . ." (Acton 129).

Granted, these examples are from the mid-1800s, but interestingly enough, our views on prostitution have not changed drastically since the time when these theories were formulated. To this day, we scapegoat prostitutes and blame them as the perpetrators of victimless crimes, or crimes against society. The downfall of the family system and the loss of faith in the success of marriages are often blamed on prostitutes, when in truth the prostitute had little to do directly with such social strife. From a young age, teachers, parents, the government, and the media feed children propaganda to teach them the dangers of straying beyond social norms so that they will remain safely within the boundaries of what we as a society deem acceptable.

Another interesting theory about the causes of prostitution is the economic theory, also formulated by Acton. He feels that prostitution is dangerous because it literally goes against the natural forces of the economy. In an ideal world, supply is regulated by demand, and demand is the practical expression of an established want. Want and demand can be either natural or artificial. Items necessary for the support of life are the objects of natural demand, and in this case, the extent of the demand is measured entirely by the want. Articles of luxury are objects of artificial demand. The problem with prostitution, Acton writes, is that it depends not on the want, but is actually increased by the supply. Basically, one's desire for a prostitute grows with the use and enjoyment of them, therefore, the supply rather then the want creates the demand (Acton 114). This theory, while slightly abstract and confusing, boils down again to blaming the woman. According to Acton, a man will not buy sex if it is not available to him, but if there is an available prostitute, he will be unable to restrain himself, and therefore is not at all the cause of the criminal behavior. This is yet another example of the dangers of propagandizing prostitution and its assumed negative effects. If a woman chooses this lifestyle, she will be labeled as a social outcast, a parasite to society, and will be shunned. This is another way that the government manages to prohibit prostitution, though it is an "off the books" manner.

With the combination of laws of prohibition and negative social propaganda, there are obviously many changes that can and should be made in our country to protect the rights and liberties of all citizens and to do away with arbitrary and unrealistic laws. We must consider legalization and decriminalization as possible ways of ameliorating the situation that we are currently in. There are many different ways of doing so. Many societies that allow prostitution do so by giving the state control over the lives and businesses of those who work as prostitutes. Legalization often includes special taxes for prostitutes, restricting prostitutes to working in certain zones, licensing and registration, government records, and health checks that can result in punitive quarantine. The term "legalization" does not necessarily refer exactly to each of these regulations, which is why defining legalization can be so difficult. Legalization can be as extensive as illustrated above, or it can simply mean that prostitution is not against the law (Leigh et al 2000).

Another important concept that is crucial to understanding the legalization of prostitution is decriminalization, which is a popular issue and is generally preferable when compared with legalization. Decriminalization would put prostitution outside the legal boundaries, making the sale of sex neither legal nor illegal (Symanski 228). However, the term decriminalization is usually used to refer to total decriminalization, which is the repeal of laws against consensual adult sexual activity, in commercial and non-commercial contexts (Leigh et al 2000).

Those who argue that it is the duty of the government and the criminal justice system to protect us are correct, but the illegality of prostitution is a misunderstanding of the purpose of the criminal justice system. The aim of the system is not to impose public standards of morality upon the private acts of consenting adults, it is simply to protect people and property from harm. Though certain acts may be deemed immoral by widely held social standards, it is not the duty of the criminal justice system to mandate morality (Symanski 228). Decriminalizing prostitution would not only correct this misdirected use of the justice system in the United States, it would also serve to re-organize the system so that its resources and personnel could be more effectively utilized for their proper intentions.

The present treatment of prostitutes in the United States is unconstitutional and subject to legal challenge on at least five grounds: the right to free speech, the right to privacy, the right to equal protection under the law, protection against cruel and unusual punishment, and protection against the vagueness of laws (Symanski 94). The laws that prohibit prostitution in the United States affect the prostitute in three major ways: by prohibiting the preliminary acts of solicitation and negotiation, by outlawing the act itself, and by prohibiting the prostitute from legally providing for herself (Symanski 85). These laws deprive the prostitute of liberty in the above ways, but also discriminate against women in unacceptable ways. (Taking into account that currently men also sell themselves as prostitutes, these laws were written specifically with females in mind, females being the largest population of prostitutes.) State and local laws do not apply equally to males and females with respect to solicitation, prostitution, and the penalties therein. With the major exception being laws related to pimps and procurers, prostitution laws in North America and Europe have long focused on the female instead of the male (Beach 1999). The penalties for prostitution are greater and more severe than those for buying sex. Customers are rarely arrested for purchasing sex, and in the rare cases where the customer is arrested, the charge is often used to induce the man to testify against the female prostitute (Symanski 88). This is unacceptable because it furthers the notion that it a man who purchases sex is just being a man and only deserves a mere slap on the wrist, while a woman who decides to sell sex for money is a criminal and the cause of the crime.

There are numerous problems with the legal prohibition of prostitution. Making it illegal can indeed be seen as a noble thing, protecting society from the evils of uncontrollable women whose sole purpose in life is to victimize poor, innocent men, but one can assume that those who made it illegal did not see the long term consequences of their actions. Prostitution was driven underground to where those with less than respectable intentions used it to turn a high profit, thus making prostitution a dirty and dangerous business (Beach 1999). Prohibition of prostitution affects people further. Because sellers of an illegal good or service are so easily labeled as criminals, they come to see themselves as such, and associate with those who break all kinds of laws having nothing to do with prostitution (Symanski 230). Thus, the initial act creates a vicious cycle of labeling and crime. If prostitution were legal, the vicious cycle would never begin. Yet again we see that attempting to legislate the morality of others is an unrealistic and unsubstantiated goal.

One of the most obvious and understandable arguments in favor of the legalization and/or decriminalization of prostitution is the simple fact that prostitution is a business-oriented, contractual relationship centered in the exchange of money for a good or service. It can be regarded as an entrepreneurial endeavor, with all the advantages that self-employment offers, including no bosses, and the right to choose whether one cares to work at given times. In an ironic way, prostitution can be seen as much as anything else as fulfilling the vocational wish to provide for oneself and work with people (Geis 177). Fundamentally, the only reason we discriminate against prostitution legally is because socially, we find it offensive and are uncomfortable discussing human sexuality in an open forum. Whether prostitution is chosen as a way of making money for reasons of free choice or whether it becomes a resort of females merely following a path of least resistance is inconsequential. We must acknowledge the freedom connected with choosing an occupation. Prostitutes tend to be satisfied with their calling, and many have chosen it with at least some awareness of the options available to them (Geis 179). People often refuse to acknowledge that some make the conscious decision to sell sex, simply because it is a concept that they find distasteful. This is unacceptable, for since we do not have the right to impose our beliefs in other areas such as religion or sexual preference on others, we should not have the right to mandate a person's sexual activity choices.

Making prostitution legal would cause many eventual changes in our society and its attitudes. Being a prostitute would no longer carry such anti-social connotations, and prostitutes would not be shunned by society for making an unattractive career choice. In addition, buying and selling sex would be safer and cleaner, and it would be possible to run the business legally and perhaps pay taxes on it (Beach 1999).

If legalized, different manners of regulation must be considered. Licensing would get many prostitutes off the street and into a controlled environment. Legalization would also reduce or eliminate the widespread, unsavory assortment of criminal elements associated with prostitution, it would free our limited law enforcement resources to fight more serious crime and violence, and it would eliminate a significant source of income for organized crime (Cauthen 1999). If licensing were to be imposed, however, it is extremely important that the government not have too much power that would result in depriving the liberty of prostitutes all over again.

In order to see how the legalization of prostitution works in reality, we examine the state of Nevada, where prostitution is legal in 15 of its 17 counties. The only county where prostitution is officially endorsed is Nevada's Storey County, which, as of 1979, imposed a $1000 per month fee upon houses of prostitution (Geis 196). Girls working in brothels in Nevada are usually fingerprinted and carry identification cards. County laws require the women to have medical exams, and state laws require that houses of prostitution cannot be located on principal business streets or within 400 yards of a schoolyard or church, and that they do not disturb the peace of the neighborhood (Geis 197). This shows that prostitution need not be illegal, and that it can effectively regulated without punitive sanctions.

Local attitudes among residents of Nevada reflect the positive attitude regarding legalization. Several residents that were interviewed feel that controlled prostitution is responsible for diminishing the incidence of rape and other violent crimes. Some parents in one county state that open prostitution keeps their sons from early marriages, that the professional women are a good educational experience, that the houses keep their daughters out of trouble, and that they need not worry about sexually transmitted diseases (Symanski 123). Evidence shows that when prostitution was first legalized in Nevada, people had negative attitudes about it similar to the majority opinions of Americans today, but long time familiarity with prostitution as an institution made it more acceptable with time. This is most likely what would happen if and when prostitution is legalized in the United States.

With any proposed solution, of course, come problems and dissenting opinions. Feminists such as Susan Brownmiller believe that prostitution should not be legalized because it contributes to the "mass psychology of rape" by putting sex in an "explicit exchange format" (Symanski 227). This, however, is not the case. Almost all human interactions are exchanges of one form of another, so to say that sex is not would be naïve and incorrect. Furthermore, there is no evidence that commercial sex promotes rape. Also, criminologists agree that rape is not a primarily sexual act, rather it is about power, and there is some indication that prostitution may lower incidents of rape (Symanski 230). The bottom line is that if a fraction of the money and resources spent to control prostitution were used to prevent rape, men and women alike would be better served.

Prostitution is illegal in the United States today for all the wrong reasons. It is illegal because we cannot acknowledge the fact that sex can be exchanged in a business relationship just like any other good or service. It is illegal because it is easier to discriminate against women and blame them for causing a moral downfall in society than to recognize the fact that men and women are involved in the exchange of sex for money in an equal relationship. Most of all, though, prostitution is illegal because we as a society find it distasteful that there are people who choose to have sexual activities and practices different from our own, and it is easier to prohibit those practices than to openly accept their existence. Prohibiting prostitution deprives people of their liberty on many different levels, and is an attempt at legislating the morality of others, which is a completely unattainable and unjust intention.

Works Cited

Acton, William. Prostitution. London: MacGibbon & Kee, 1968.

Beach, James LR. "The Legalization of Prostitution and Drugs." http://www.Jamestarlight/legalization/html Waterville, MN: May, 1999.

Bullough, Vern L, Ph.D. The History of Prostitution. New Hyde Park, NY: University Books, 1964.

Cauthen, Kenneth. Legalizing Prostitution." http://frontiernet/~kenc/pros.html, 1999.

Geis, Gilbert. Not the Law's Business: An Examination of Homosexuality, Abortion, Prostitution, Narcotics, and Gambling in the United States. New York: Schocken Books, 1979.

Leigh, Carol, ed. And members of the Prostitution Education Network. "Prostitution Law Reform: Defining Terms." Prostitution Education Network. http://www.bayswan.org/defining.html, San Francisco, CA: 2000.

Symanski, Richard. The Immoral Landscape: Female Prostitution in Western Societies. Toronto: Butterworth & Co, 1981.

Copyright 2000, Teresa Smith