To legalize or decriminalize prostitution (and everything else)?

November 6, 1:29 PMCivil Liberties ExaminerJ.D. Tuccille

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After I wrote a piece favoring legalized prostitution last month, I received comments and emails from sex workers thanking me for the piece -- but, in one case, objecting to my call for legalization. The woman who contacted me said she preferred decriminalization over legalization.

Color me confused.

My experience with the difference between "legalize" and "decriminalize" comes from discussions of drug policy, in which legalization refers to removing all laws against a substance or activity and allowing it to be engaged in openly, while decriminalization has a somewhat vaguer definition, but basically refers to ending criminal penalties while maintaining civil sanctions -- fines -- against people who engage in still-discouraged conduct.

Why, I asked, would somebody prefer being fined over being free of legal penalties?

Well, it turns out that language is a bit tricky. Apparently, discussions of policy toward commercial sex have gone in a different direction than discussions of policy regarding drugs. In sex worker circles, I'm told, "legalization" refers to permitting prostitution within a rigidly structured and regulated framework that dictates how the trade will be conducted (usually in licensed brothels). "Decriminalization" refers to repealing laws against prostitution and allowing people to work out their own arrangements in a deregulated marketplace.

In the case of prostitution, Nevada is often held out as an example of legalization, while New Zealand is considered a model of decriminalization.

Nevada prostitution is fairly successful and relatively trouble-free -- certainly it is when compared to the trade as conducted in jurisdictions where it's forbidden. But Nevada prostitution is rigidly regulated and many sex workers don't like working under tjose rules. In particular, they don't like working for brothel owners. Many of them would rather freelance or make other arrangements more to their taste.

In New Zealand, as The Economist describes the trade:

[F]or liberals in search of success stories, New Zealand appears to provide more promising evidence. In 2003, that country decriminalised the sex trade with a boldness that exceeded that of the Dutch. Sex workers were allowed to ply their trade more or less freely, either at home, in brothels or on the street.

A study published by the government in May, measuring the impact of the new law, was encouraging. More than 60% of prostitutes felt they had more power to refuse clients than they did before. The report reckoned that only about 1% of women in the business were under the legal age of 18. And only 4% said they had been pressured into working by someone else.

The advantage to New Zealand's arrangement, the magazine continues is, "prostitutes can fend for themselves. As well as letting them keep all their earnings, this independence gives them freedom to reject nasty clients and unsafe practices."

The New Zealand Ministry of Justice report referenced by The Economist is available online. After assessing the impact of the Prostitution Reform Act, it concludes:

The PRA has been in force for five years. During that time, the sex industry has not increased in size, and many of the social evils predicted by some who opposed the decriminalisation of the sex industry have not been experienced. On the whole, the PRA has been effective in achieving its purpose, and the Committee is confident that the vast majority of people involved in the sex industry are better off under the PRA than they were previously.

So, greater autonomy for sex workers, no fear of arrest, prosecution or fines, and apparently improved conditions. And that's without even getting into the fact that the New Zealand arrangement uniquely respects, to a great extent, the right of adults to use their bodies as they please and to engage in whatever consensual arrangements they like. Sounds good to me.

Let me be clear, in all cases, whether we're discussing prostitution, drugs, guns or any other arrangements among consenting adults, I favor entirely removing the government from the process. That means no laws against goods or services; it also means no mandated structures or regulations. People should be free to do as they please, so long as they don't violate anybody else's rights.

It's the right thing to do. And it works.

Contact J.D.: civilliberties (at) tuccille.com