Prostitution on the ballot - Proposition K up for vote in San Francisco

November 3, 8:16 AMBusiness Law ExaminerMatthew Nelson

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Proposition K could change the image of prostitution in San Francisco.

Regulation of what is described as the world's oldest profession is among the numerous issues that tomorrow's election will decide. Passage of Proposition K in San Francisco would prohibit the police from investigating a complaint of prostitution or arresting or prosecuting anyone for that activity. An article in the Oct. 6. 2008, edition of the San Francisco Chronicle provided the details on which I am basing this analysis.

Supporters of the law emphasize that the proposition does not affect laws, which include ones regarding sexual assault and statutory rape, that protect prostitutes. These supporters note as well that the proposition would protect prostitutes by allowing them to report rape, robbery, and other crimes of which they are often victims without fear of being arrested or prosecuted for prostitution.

Opponents of the proposition are publicizing the possibility that San Francisco will attract an undue number of prostitutes and their employers and people looking for their services. Other arguments against the measure include the facts that it does not require that a prostitute get tested for HIV and that it does not impose any zoning regarding where a brothel could be located or where street walkers could conduct their business. Another criticism is that Proposition K does not establish any support program for a prostitute who wants to change professions.

Before discussing the legal concepts regarding the proposition, I want to say that I hesitate to even spend $50 per-hour for the wonderful entertainment that a large-scale theatrical production provides and that the architecture and the Ghirardelli chocolate factory will remain my favorite attractions in San Francisco regardless of whether Proposition K passes. Additionally, free chocolates are the only samples that will interest me in the city. I also truly do not judge people but limit any sexual activity in which I engage to a partner with whom a mutual attraction exists.

Having said that, one can argue that a completely consensual business transaction in which someone pays the going rate for a sexual encounter should not be a crime. The prostitute is meeting a basic need in the same way as the person who runs a restaurant. Of course, someone not paying his or her bill for the food or aggressively demanding something that is not on the menu are crimes that should be prosecuted vigorously because of the harm and fear that they cause.

Although health and safety issues are a serious concern given the nature of this business, regulation and stringent inspections are possible and are authorized under a city's "police power" that allows laws that protect the health and safety of people. If I had my say in San Francisco, I would impose a heavy annual fee on every aspect of prostitution and require weekly and surprise inspections. I would also impose enormous fines on those who do not register and/or are found to not be adequately sanitary. The risks of an unsanitary prostitution business are simply too high to allow, especially considering the high risk of transferring unpleasant and dangerous conditions to third people who did not engage in the business transaction.

I would love to get a dialog going on this topic and invite you to add comments or questions to this entry or e-mail me at nelsonexaminer@gmail.com.