Guest Posting by Mike DePinto Few laws contradict the libertarian philosophy more than the prohibition of sex for money. Two consenting adults engaging in a non-violent act in a private setting should not have to fear the government incarcerating them, yet prostitution remains a criminal offence in all but a handful of counties in the United States. Advocating legalized prostitution does not necessarily imply support for the activity itself. Even if many find the selling of sexual services morally repugnant, all should oppose criminal penalties associated with prostitution. Those who consider prostitution immoral should thoroughly consider the morality of incarcerating prostitutes and their customers. To some, inter-racial marriage, alcohol use, and homosexuality qualify as morally objectionable, and laws prohibiting these activities existed at one time. Fortunately, the rights of individuals have prevailed in those cases. The framers of the Constitution intended to protect the right of the individual even when a majority disagrees with the moral premise of the issue. In the appeal of Lawrence v. Texas, the 2003 case nullifying the Texas sodomy statute, Justice Kennedy delivered the majority opinion and stated, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds.” The application of the Fourteenth Amendment of due process used in the Lawrence decision applies directly to cases involving prostitution. The fact that money transfers between two willing parties has no bearing on the situation. Imprisoning sex workers or their clients probably violates their Constitutional rights. Even disregarding the possiblye unconstitutional nature of prostitution laws, the arguments delivered by anti-prostitution proponents lack any real substance. The claims include the notions that prostitution promotes violence against women, encourages sex-trafficking, coerces women who have no other means, preys on sexually abused women, and promotes disease. In all these areas, legalizing prostitution would improve the circumstances of sex workers and of sex crime victims. With solicitation a crime, sex workers have little if any recourse against those perpetrating violent acts against them. Stepping outside the law forces the prostitute to choose between risking bodily harm and hiring a pimp to protect her (though she may endure even more abuse at the hand of her pimp.) Legalization would allow the protection of the law and recourse for actions like non-payment of debts similar to other entrepreneurs. In addition, a place of business, much more possible under a legal scenario, would create additional obstacles for a criminal. Sex trafficking and child prostitution remain incredibly difficult problems to stop. The victimized women have little or no contact with the government, so officials have no way of knowing who is a sex worker unless an arrest takes place. Under a legal framework, sex workers would need a business license insuring they pay taxes and would have regular health check-ups. The police could interview women in the business randomly to uncover kidnapping rings and criminal activities. The women, like other kidnap victims, would have the protection of law enforcement officials. In addition, a minimum age would make it impossible for children to work legally as sex workers. A regular check of a card or license held by the prostitute would make it easier to end child sex rings. The idea that a person should be legally restrained from engaging in prostitution because other options do not exist has two fundamental logic flaws. First, what is that person suppose to do if no other option exists? If a woman has no other choice but to have sex for money, almost by definition, the circumstances dictate that she will prostitute herself regardless of the law (unless it involves a punishment so severe that another criminal pursuit would be rational.) The other error revolves around free choice. Society should not eliminate options for citizens, especially for those with few options. Women who have been abused or otherwise emotionally compromised also should not have options taken from them. Unless a court decides they lack the capacity to make their own decisions, their history should not preclude them from doing with their body as they wish. Also, women who were abused growing up will not avoid prostitution just because it is illegal. In fact, they risk additional abuse because they will still go into the business but with no protection under the law. Women also stand a better chance of sustaining their health if sex trade is regulated. Doctors would check on women regularly continually updating a health card. Those with HIV/AIDS or other communicable diseases would lose their license and almost certainly receive treatment faster that women currently in the trade. The CDC could track diseases more accurately and scientists would identify new strains of STD’s more rapidly. This would result in better health for the sex workers and the community. Legalizing prostitution provides a much better solution than abolition. The problems encountered with legal sex work are far more manageable than those under prohibition. Statutes criminalizing prostitution hurt women far more than they help them. Ironically, legal prostitution creates price competition making the industry less attractive. Regardless, an adult has a right to provide a service for a fee in a private location without the government impinging on her (or his) liberty. Those who oppose sex work can ostracize those who partake, they can exclude them from their circle, and they can criticize their behavior, but what they should not be able to do is put that person in jail.
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