California Forum

Why laws against prostitution are unconstitutional

This 1906 image released by the The Historic New Orleans Collection shows a page from a directory of prostitutes in New Orleans' that contained numerous advertisements for brothels, saloons, restaurants, alcoholic beverages, and cigars.
This 1906 image released by the The Historic New Orleans Collection shows a page from a directory of prostitutes in New Orleans' that contained numerous advertisements for brothels, saloons, restaurants, alcoholic beverages, and cigars. AP

A case before the U.S. Court of Appeals for the 9th Circuit should be the basis for a long-overdue reform: Laws that prohibit prostitution should be declared unconstitutional.

The lawsuit was filed by the Erotic Service Provider Legal, Education and Research Project, three former prostitutes, and a disabled man who says he wants to be a client of erotic services.

In 2003, in Lawrence v. Texas, the U.S. Supreme Court declared unconstitutional a Texas law that made it a crime for consenting adults to engage in private, consensual homosexual activity.

Justice Anthony Kennedy, writing for the majority, powerfully declared that if the right to privacy means anything, it protects what consenting adults do in their bedrooms. Lawrence recognized the importance of sexual activity as an essential part of liberty and explicitly rejected Texas’ argument that it could make a moral judgment that homosexual activity was wrong.

This same reasoning explains why laws that prohibit prostitution are unconstitutional. They, too, restrict what consenting adults do in their bedrooms. They, too, are based on the state making a moral judgment that it is wrong for people to sell or buy sex. For some people, purchasing sex is their only way to engage in sexual activity.

At the oral argument in the 9th Circuit on Oct. 19, Judge Carlos Bea asked a key question: “Why is it illegal to sell something that it’s legal to give away?”

The primary answer given by the state, represented by California Attorney General Xavier Becerra’s deputies, is that the commodification of sex is immoral. But after Lawrence v. Texas, that no longer is a sufficient justification for a law that restricts consensual sexual activity between adults.

The state therefore also argued that laws prohibiting prostitution are justified to prevent the spread of disease and combat trafficking. These unquestionably are important government interests.

The question is whether illegality achieves or frustrates these goals. If prostitution were legal, it could be regulated. There could be required health check-ups, protecting health for sellers and buyers.

Trafficking is an enormous problem. The law must strictly prohibit and punish this and prevent anyone from being coerced into sexual activity. But illegality actually makes it harder to deal with this problem because prostitution is driven underground.

Victims of trafficking are less willing to come forward to the police since they are engaged in illegal activity. This is why Amnesty International in 2015 adopted a policy favoring legalization of prostitution and concluded that ending the criminal prohibitions would make it easier to deal with human trafficking.

Other countries’ experience shows legalization is preferable. Forty-nine countries have legalized prostitution, including eight in Europe. There are mandatory inspections and laws against exploitation of minors.

Prostitutes become a key source of information for the police about trafficking; ending criminalization dramatically changes the relationship between prostitutes and the police.

In the United States, prostitution is legal only in Nevada where it is permitted in licensed brothels in eight counties. California made prostitution a crime in 1872, defining “every common prostitute” as a “vagrant” subject to a $500 fine and six months in jail. The law was updated in 1961 to reclassify prostitution or soliciting prostitution as disorderly conduct, a misdemeanor punishable by a $1,000 fine and six months in jail.

But California also had a law making homosexual activity a crime. This law was repealed over 50 years ago, but until the court’s decision in Lawrence v. Texas there still were 14 states with such criminal statutes. Many states still have laws on the books that prohibit oral or anal sex. None of this should be the subject of the criminal law.

The 9th Circuit and Supreme Court have the chance to establish a basic principle of constitutional law: the liberty protected by the Constitution protects a right of consenting adults to engage in private sexual activity, including when they are paying for it or getting paid.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.

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