How can we best understand prostitution law?
Prostitution law involves two important aspects of human existence: sexuality and money. What is prostitution? Sex for money.
Sex and money are both emotional topics. So is it any surprise that prostitution is controversial? After all, it’s been around longer than money.
Throughout history and across cultures, we have diverse views.
Harm reduction or send a message?
Do we believe that social harms are caused by our sexuality, our money, our prostitution? Put that way – yes, we do. We have a social consensus. These can cause social harms.
Then, what should we do about it?
Can the laws play a role in reducing these harms? And, what does prostitution law in Minnesota look like? What about the United States? Other nations?
Criminal laws can divided into malum in se and malum prohibitum.
Malum In Se is literally “Evil in itself.” A malum in se crime is naturally evil, like murder and theft. Common law crimes were generally mala in se.
But a malum prohibitum offense is not naturally an evil. By decree, something becomes a crime solely as a consequence of its being forbidden; like some gambling, drugs.
But it’s legal in other states and countries. So prostitution law in other jurisdictions shows us that it is a malum prohibitum offense.
Minnesota’s felony crimes of violence statute is further evidence of malum prohibitum status. Yes, prostitution is actually on that list of “crimes of violence.” While there is no consensus that prostitution should be a crime at all, it is not a violent crime.
Does a law forbidding an act make it go away?
Drug prohibition laws show us the answer. And making alcohol, other drugs, and gambling a crime, increases social harms.
So we can distinguish between consequences of:
- the act of prostitution, vs.
- prostitution law.
Many confuse the two. But they are separate and distinct.
Cause and effect
Which causes the social harms: the act, or the criminal laws? Let’s list associated social harms:
Coercion. Sex workers are rarely coerced where legal and regulated. But where unregulated and criminalized, coercion is common. Human trafficking thrives on criminalization. Criminal laws encourage the use of drugs, threats, and violence to coerce sex workers.
Exploitation of Children. Where legal and regulated, children and underage people rarely work in the sex industry. But in Minnesota, as in other places where it is crime, anything goes. Prostitutes often begin under the age of 18 in Minnesota. More policing, more laws, more punishment create more victims.
Nuisance. Is this a “neighborhood livability crime?” Not much any more. But to the extent it still is, legal prostitution can be zoned into a red light district. So, Minneapolis has zoned pornography into one part of town. The move from the streets to the web has reduced this issue.
Prostitution law aggravates social harms
All of those are direct products of criminalization.
The consequences below are related to the act, but aggravated by criminal prostitution law.
Public Health. Sexual activity can spread diseases, such as AIDS. But where legal, regulation enforces frequent medical examinations. And bringing it above-ground makes helps sex workers avoid coercion and exploitation. Prostitution laws that make it an unregulated crime, increase associated drug addiction.
Morality. Many view the sex act as immoral and unethical, though compared to others, a minor sin. Of course, many view any sexual activity as a sin. What about compassionate use for the physically handicapped, medical, etc.?
Should “the law of man” respect a person’s free will to choose virtue? And we leave the domain of saving souls to God’s law? By binding someone’s hands, do you not prevent them from exercising their free will to be virtuous?
Which is more immoral, the act of prostitution; or criminal prostitution law aggravating these social harms? Consider our related article: Jesus as Criminal Defense Lawyer: The Woman Accused of Adultery.
Minnesota Laws on Prostitution
Prostitution is unregulated in Minnesota because it is a crime.
It is part of the underground economy. Minnesota’s criminal prostitution law statutes address both the common and the unusual cases.
Most arrests are customers
By far the most common prosecutions in Minnesota are those against would-be customers. The Minneapolis police MyFastPass investigation is an example.
But these are generally the result of police sting operations, employing deception.
Police sting deception can go too far, however, creating defenses for the accused. Though true entrapment defenses are less common, police commonly employ sentencing entrapment by manipulating the situation to up-charge. A prostitution law attorney can raise these defenses where facts support them.
Traditionally stings began on the streets, often motor vehicles, or in storefronts.
But in recent years, they begin online over the internet, for example on Craigslist, Backpage or Rubmaps. Prosecutors generally charge these online solicitation sting cases as misdemeanor or gross misdemeanor crimes.
Felony prostitution law crimes in Minnesota are less common. But when prosecutors charge a felony, they allege people under 18 years old, pimps, promoters, and coercion.
Prostitution thrives in an unregulated, underground economy. And this makes investigating cases difficult for prostitution law enforcement (police).
Ironically, legalizing prostitution would help law enforcement directly target the higher priority problems. These include under 18 years old, pimps and promoters, and coercion.
The author, Thomas C Gallagher is a prostitution attorney in Minneapolis.