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The Moral and Legal Issue with Prostitution

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Table of contents

  1. Introduction
  2. Topic analysis
  3. Conclusion
  4. Bibliography

Introduction

Prostitution is known as the oldest profession in the world. It generally involves performance of sexual acts for payment. Debates on its morality are heated and the extent to which the law is justified in impeding on one’s individual autonomy is often unclear. I shall therefore bring into context different moral views, their criticisms and the contributions by some prominent moral philosophers. Additionally, how the legal framework in Britain is disjointed, and has paradoxically served to compound the harms arising from the objectification of women’s bodies in prostitution. Therefore I shall back law reform with illustration of the Nordic Model that has proved effective in curbing associated harms.

Topic analysis

Different views struggle for moral authority in attempts to shape legislation on the morally contentious issue of prostitution. It is crucial to appreciate what they advocate for, how they influence the law and mentality of society at large. A conservative view is that one’s body is special and for that purpose, its commodification is inherently morally wrong. Thereby, legislation is justifiably put in place to curb this for the greater good of society as rules are meant to enhance morals and prohibit such degrading activities.

However some criticisms of this position have come forth to counter this. With reference to Immanuel Kant’s teachings, treating someone as a mere means is a problem since people should be treated as an end in themselves, so in the event that there is consent between the prostitute and client, it is morally justifiable. Additionally, legislation should not be enacted on the basis that prostitution makes people uncomfortable, yet it is not inherently harmful, or illegal in itself. This is in accordance with John Stuart Mill’s ‘Harm Principle’ that states, ‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’.

On the other hand, radical feminists take prostitution as an aspect of sexual slavery of women thus harmful ‘in and of itself’ hence morally bad. They perceive it as a form of violence against women in a paternalistic society that degrades and objectifies the female body, thereby undermining female sexuality. In one article, MacKinnon argues that, ‘At the same time, liberty for men is often construed in sexual terms and includes liberal access to women including prostituted ones. So while, for men, liberty entails that women be prostituted, for women, prostitution entails loss of all that liberty means’.

I will not dispute with the view that some women are coerced into prostitution hence the extent to which they actually ‘consent’ to a sexual act is questionable, or the fact that the harms arising from the sex industry are prudent because of the social constructionism of sexual objectification of women and gender inequality. Nonetheless, what some feminists fail to take into account is the fact that for some women in this controversial industry, it is a legitimate life choice for them and they do find it empowering and rewarding.

In an interview by the popular magazine, Marie Claire, one sex worker was quoted saying, ‘prostitution gave me a growing consciousness of my sexuality and a lot of personal strength’. Furthermore, it becomes problematic when some of these feminists’ advocacy for legislation prohibiting prostitution is mainly focused on the fact that it enhances a tolerance for the paternalistic attitude deeply embedded in society. It diverts the attention from fighting for gender equality by implying the female body to be inherently problematic and therefore in a contradicting way ends up actually marring female sexuality.

In this male dominated society paternalism has always existed from time immemorial and addressing this should not be through the criminalisation of prostitution. In addition, generalising all acts in prostitution as payment for sexual services is misinformed, since some clients just pay for companionship. One would argue that in the light of autonomy, which is a prevalent moral and political value that was upheld both by Kant and Mill, individuals should be self-governing without being imposed by external characteristics, leaving it for one to be able to distinguish their moral obligations and principles. Hence, women should be left to make their own choices. Even so, these feminist views are not representative of all feminists.

The liberal stance on prostitution, in relation to Mill’s principles, is that people are free to do whatever they want with their bodies as long as they are not harming anyone. Since it is not inherently problematic, thus not morally wrong, the law should focus on harms that arise from it such as violence, or sexual exploitation. Libertarians gravitate their view around the fact that the law criminalising prostitution as a whole only worsens the situation by enhancing stigmatisation and driving the ‘profession’ underground which even exacerbates more harm.

Nonetheless, as with every approach there are setbacks. It generally fails to take serious consideration into the issue of consent whilst also neglecting that a lot of women in prostitution are not in it by free will. Some are forced into the industry due to financial desperation, coercion and abuse. To add, the mere fact that it regards all forms of trade as wholly morally acceptable on grounds of individual autonomy, is dubious.

This harm principle, coupled with autonomy, which is a prevalent feature in arguments by libertarians in their attempt to rationalize their viewpoint on prostitution and the law, has not emerged unscathed. One renowned legal philosopher, the late Joel Feinberg, wrote a four-volume book criticising Mill’s principle; labelling it as ‘extremely liberal’. According to him, Mill extended the scope of individual autonomy far too wide. Feinberg, with his crafted offense principle, countered the harm principle which justifies intervention of one’s liberty only if it causes harm to others.

The former attempts to guide the extent to which the criminal law is morally justified in interfering with individual liberties. But, he did not fully disregard the latter. According to him, harm concentrates more on the physical aspect, so his principle accounts for the mental state, such as anger, resentment and disgust by offensive acts. He evidently supported a kind of paternalistic legislation that aims at ‘drawing boundaries between the various private domains of persons, and between private domains of a person and the public world’.

Thus implying legislative action should be taken against those who cause offensive nuisance to one’s ‘mental dislike’. His issue with the harm principle was that it does not have limits in regards to individual autonomy. Thus, Feinberg’s principle could be used to counter-argue the libertarians’ specific approach to prostitution that is not as keen on paying heed to the need for regulation of prostitution in the interest of prevention of harms arising.

Of interest though, is the fact that some libertarians pick and choose from Mill’s teachings what is appropriate to best suit their argument, disregarding the remainder. Mill did not always share in libertarian views which was discernible when he explicitly touched on prostitution. His pleasure principle sought to define true human happiness as the pursuit of character development, branding him an ‘ethical liberalist’ and ‘moral perfectionist’. He categorically made a distinction between ‘higher pleasures’ and ‘lower pleasures’.

The pursuit of ‘higher pleasures’ are those that resulted in true happiness as they led to the development of moral virtue and intellect, whereas ‘lower pleasures’ such as sex were ‘immediate wants’ that were in no way fulfilling and did not aid in achievement of actual happiness. According to Mill, individual liberty should be grounded on the pursuit for personal development. In regards to prostitution, Mill’s views echoed those of the modern radical feminists, in perceiving it to be a form of violence towards women. He viewed it as a ‘social evil’ describing, ‘ there is no greater evil that this propensity [male sexuality] can produce than prostitution…not only on account of the wretched women whose sole existence it sacrifices, but because like no other is anything like so corrupting to the men’.

Mill was a very vocal voice behind the rebellion of the Contagious Diseases Acts in Britain whose apparent ‘aim’ was to prevent the spread of venereal diseases, but which was more theoretical than practical, and sexist. It targeted women suspected of being ‘common prostitutes’ and forced them to undergo medical examinations fortnightly and if they were diseased, were imprisoned for nine months. However, men were never examined.

Mill argued that the legislation was ‘encouraging’ prostitution which he considered immoral, and that if the legislation was really about disease prevention, the police should also investigate the males procuring female services in addition to examining them as the disease could only be transmitted by those who ‘seek it’; adding more harsh consequences for those who passed on the disease to a ‘modest woman’. In summary, he was disturbed by the solicitation, exploitation and other harms arising from prostitution and he was in support of legislative paternalistic intervention in this case. But since he was not specific on the kinds of regulation, he was probably conflicted on the extent to which prostitution as a whole should fall under ‘individual choice’.

In the United Kingdom, prostitution in itself is not illegal, however its related activities are. Following the 1957 Wolfenden Report on public morality, the Street Offences Act 1959 was enacted to deal with rising street prostitution. The Act made provision for imprisonment for loitering or soliciting for prostitution. In 2008 it was revised by the Home Office on Tackling the Demand for Prostitution: A Review and was amended by sections 16 and 17 of the Policing and Crime Act 2009 which reduced the imprisonment sanctions to summary offences or an alternative Engagement and Support Order.

Additionally, sections 52 and 53 of the Sexual Offences Act 2003 criminalise the causing, inciting and controlling of prostitution for gain, with imprisonment. The intent is protection of sex workers from subjection of force and exploitation by pimps. Section 59A under the same Act provides protection against trafficking for sexual exploitation while section 53A which is an insertion by section 14 of the Policing And Crime Act 2009, imposes a ‘strict liability offence’ on those who procure sexual services from a person subjected to coercion. To add, Anti-Social Behaviour Orders (ASBOs), which are not necessarily restricted to prostitution activities, act to prohibit entry in to certain areas or the causing of ‘harassment’ and ‘distress’.

The legal framework in England and Wales is more theoretical than practical. It is contradictory in itself as it allows for the buying and selling of sex but criminalises activities associated with that; a quite impractical approach. Thus its lack of a clear-cut standpoint, brings about incoherence in the law , to the detriment of the vulnerable sex workers.

Consequently, the harms arising from prostitution due to the gender imbalance are exacerbated since the legal system fails to appropriately address the issue yet it is their responsibility to afford protection to everyone without discrimination. The imposition of criminal sanctions on sex workers enhances societal stigmatisation against them, which in itself is a harm that in turn gives rise to psychological damage. Law enforcement are biased as they prefer to target sex workers, because they are more visible when soliciting.

By criminalising the prostitute and not the procurer of sexual services, the law only serves to propel gender inequality while depicting her as aberrant, yet in most cases the female is the vulnerable one in need of protection. The social stigma coupled with the discriminatory application of the law only aggravates the violence that these women face and what is worse is that they fear reporting to the police because it turns into a criminal investigation against them.

Cases such as rape are therefore ignored and the vicious cycle continues. People who objectify these women and subject them to violence know that a lot of the time the law will not work against them in practice due to the stigma surrounding prostitutes thus, there is no legislative action that actually deters them, so they take advantage.

For example, the practicality of section 14 of the Police and Crime Act 2009 is questionable as it fails to reflect the different circumstances and complexities under which coercion occurs, hence fails to target perpetrators resulting in the bloom of human trafficking within the UK and a low prosecution rate. Also, the police departments have no centralised strategic operations in regards to prostitution and prefer to enforce legislation against sex workers because less intensive resources are required in order to do so.

The ASBOs serve to further accelerate the marginalisation of the vulnerable. The Prostitution Inquiry suggested that using these orders against sex workers should be halted due to the risks that come with displacement. So as to avoid getting caught by law enforcement, some sex workers will not take precautions before accepting clients’ offers. As they are meant to have the upper hand, ASBOs would diminish their power for negotiation and, to add, endangering their safety. The orders also serve to classify prostitutes as not part of the ‘respectable community’, giving a sense of no belonging, and worthlessness unless someone stops working in the sex industry; the discriminatory nature of the orders is inherent in and of itself.

Additionally, Engagement and Support Orders which serve to ‘rehabilitate’, require the offender to attend three meetings to discuss ways of moving forward from street prostitution, a breach of which is an offence leading to criminalisation, and the cycle continues. The order falls short of common sense as the legislator clearly fails to anticipate, if the actual intention is rehabilitation, that a sex worker cannot simply leave behind that life after a three part discussion. A lot of them are in the industry for deep-rooted reasons such as economic desperation, or coercion.

Telling them to get off the street with no actual assistance to their social reality will fall on deaf ears. Criminalising sex workers inhibits opportunities for those who want to eventually exit the industry as the stigmatisation in society already works against them when one is applying for a job yet already has a criminal record. One would just revert back to the system in search of a ‘better’ livelihood. Evidently, the criminal law at worst, has done barely anything to deter the harms arising from the objectification of women in prostitution, at best , it has only exacerbated it.

A lot of countries have turned to Sweden, the forefront of prostitution legislation, for inspiration in reforming their laws. Sweden adopted the ‘Nordic Model’ also termed the ‘Abolitionist’ in 1999. The All Parliamentary Group on Prostitution and the Global Sex Trade produced a report, Shifting The Burden, in March 2014 endorsing this model for UK (England and Wales). It was also favoured in the 2014 Honeyball Report due to its effectiveness thus far.

The aim of the Nordic Model is to enhance a gender equal society with a view to human rights including the justification by some feminists who helped draft the law, that this was a form of violence against women. It began to achieve this by decriminalising the prostitute and criminalising the buyer, hence acquiring the name ‘Sex Buyer Law’. This shifts the social shame of stigmatisation of women to the procurers of sexual services. Since purchase is a criminal offence, it ends up reducing demand and as a result helps combat human trafficking. To boot, the model includes welfare services for those who wish to exit the profession.

According to critics, this model has disregarded harm faced by the sex worker in addition to treating them as ‘victims of their illegitimate choices’. However, statistics have proven otherwise as it has contributed more benefits to society than harm. The Swedish paradigm, by 2008, had led to the reduction of street prostitution by half since its implementation. Sex trafficking in the country has plummeted significantly. It has positively affected the population’s mind-set, thus in some aspect improving gender equality.

Conclusion

In conclusion, the British Approach is in need of urgent reform; criminalisation has been to the detriment of the prostitute. Perhaps since its aim is to reduce street prostitution, an incorporation of the Nordic model would be beneficial and whilst at that, venture into open communication with the vulnerable, understand their social realities and acquire a better perspective on how legislation should be applied practically thereby countering harms.

Bibliography

  • Ross D, ‘Looking Past The Red Light: A Critical Analysis Of The Legal Treatment Of Prostitution’ [2017] Birmingham Student Law Review
  • Ashworth A, ‘Prostitution And The Criminal Law’ [2014] Criminal Law Review
  • MacKinnon C, ‘Prostitution And Civil Rights’ (1993) 13 Michigan Journal of Gender and Law
  • Feinberg J, Offense To Others: The Moral Limits Of The Criminal Law (Oxford University Press 1984)
  • Mill J.S., On Liberty (2nd edn, Boston: Ticknor and Fields 1863)
  • Robson J.M., The Collected Works Of John Stuart Mill, Vol. XVIII (University of Toronto Press 1977)
  • McGlynn C, Ward I, ‘Would John Stuart Mill Have Regulated Pornography?’ (2014) 41 Journal of Law and Society
  • All-Party Parliamentary Group on Prostitution and the Global Sex Trade, ‘Shifting The Burden’ (APPG 2014) accessed 2 January 2018
  • Matt McCormick, ‘Autonomy | Internet Encyclopedia Of Philosophy’ (iep.utm.edu, 2018) accessed 3 January 2018
  • Blume J, ‘Prostitution Should Be Seen As Empowering Some Women’ [2005] Marie Claire
  • ‘Autonomy In Moral And Political Philosophy (Stanford Encyclopedia Of Philosophy)’ (Plato.stanford.edu, 2003) accessed 3 January 2018
  • Committee on Women’s Rights and Gender Equality of the European Parliament, ‘Sexual Exploitation And Prostitution And Its Impact On Gender Equality’ (European Parliament 2014) accessed 6 January 2018
  • Government Offices of Sweden, ‘Evaluation Of The Prohibition Of The Purchase Of Sexual Services 1999-2008’ (Government Offices of Sweden 2010)
  • Dodillet S, Östergren P, ‘The Swedish Sex Purchase Act: Claimed Success And Documented Effects’, Decriminalizing Prostitution and Beyond: Practical Experiences and Challenges. (2011)

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