Reassessing the Justifiability of the Criminalization of Prostitution in the United States of America

Abstract

The Supreme Court of the United States has interpreted individual liberty as provided for in the Constitution to include certain intimate conduct, and upheld its protection from unwarranted government intrusions into private places, while observing that adults may choose to enter upon a personal relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. The Supreme Court has further stated that the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice. Nonetheless, prostitution remains a crime in most of the United States, with Nevada as the only state that allows some legal prostitution.This paper discusses the history of prostitution - specifically consensual adult female prostitution - in the United States and assesses the justifiability of the [continued] criminalization of prostitution in the United States. It analyzes whether the classification of prostitution as a crime is supported by any of the major theories of criminalization or legal punishment. The analysis is done in the specific context of the United States taking into account, inter alia, the history of prostitution in the United States and the place of morality in United States law. The analysis leads to the conclusion that neither the consequentialist nor the deontological and moralistic theories of criminalization and punishment support the continued criminalization of prostitution in the United States, and that there are therefore plausible arguments for decriminalization.There is a recognition, regardless of the conclusions on the justifiability of criminalization, that there are deep-seated convictions within sections of society that prostitution is immoral. While there are philosophical arguments both ways on whether prostitution is immoral, and whether morality should inform criminal law (debates that this paper gets into to some degree), the author ultimately take the position that these debates are not the most effective and efficient way to bridge the divide and resolve the problem. The solution, in the author's view, lies in striking a compromise. The author propose that it is possible to, on the one hand, respect the legitimate conviction held by a section of society that prostitution is morally wrong and still, on the other hand, attain general consensus on the need for reform to eradicate or at least reduce the negative effects of the blanket criminalization of prostitution.