Is it time to decriminalize prostitution? Two New York bills answer yes in unique ways

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  • Today in the majority of the United States, it is a crime to sell sex, buy it, or promote its sale.
  • The Sex Trade Survivors Justice & Equality Act would decriminalize prostitution in New York state while maintaining punitive measures against buyers and pimps.
  • Opponents suggest this law would only push the illegal sex trade further underground and seek full decriminalization for everyone involved.

Although incorrectly labeled the world's oldest profession, prostitution has been on the minds of lawmakers for as long as extant laws allow us to track. The Code of Hammurabi, the most complete of ancient Babylonian laws, doesn't deal with the sex trade directly but does distinguish between the inheritance rights enjoyed by "devoted women" versus prostituted women.

A few centuries later and across the Mediterranean, the ancient Greek and Roman civilizations regulated a legal sex trade depicted on frescos and black-and-red-figure vases in exotic and highly idealized terms. However, the courtesan's life was hardly a high-minded exercise in sexual liberation. Freeborn wives and daughters did not participate in the sex trade. Instead, these societies filled their brothels with slaves and infames and allowed them to suffer in abhorrent living conditions. The ashen evidence from Pompeii reveals that prostituted women and young men were immured within dark, stifling cells barely large enough to house their stone beds.

In the United States today prostitution is entirely illegal, save for a few counties in the state of Nevada. Yet, trafficking persists across the country. One study from the Field Center for Children's Policy, University of Pennsylvania, interviewed vulnerable youths across 13 cities and found that roughly a fifth were victims of sex trafficking. Many said they were approached for paid sexual acts during their first night of homelessness.

Opponents of the full-criminalization model argue that these regulations only aggravate such problems, driving prostituted people further underground, where harm and violence may be inflicted upon them without recourse. In recent decades, European countries have introduced new prostitution laws, leading U.S. advocates to raise their voices for decriminalization. And two new bills introduced in the New York State Senate hope to make that change.

The Equality Model asks, criminal or victim?

The most recent of the two is the Sex Trade Survivors Justice & Equality Act. Set to be introduced by Senator Liz Krueger of Manhattan, the law would repeal the crime of prostitution in the state but would maintain punitive measures against buyers and pimps. The penalty for buying sex, for example, would be a sliding-scale fine based on income.The bill also aims to strengthen laws against trafficking and eliminate the so-called ignorance defense, which affords buyers legal cover if they did not have "reasonable grounds" to assume their victim was underage.

The Sex Trade Survivors Justice & Equality Act is based on the Equality Model, first introduced in Sweden in 1999. Under the Swedish Sex Purchase Act, the country decriminalized prostitution and began targeting buyers and suppliers with the goal of lowering demand. As demand decreased, the thinking went, Sweden would witness a subsequent reduction in violence, trafficking, and the trauma associated so strongly with the illicit sex trade. And a 2008 report did find that the strategy manifested some of those goals.

After the law's introduction, costs increased, fewer men sought to purchase sex, and the number of women in street prostitution halved—though the burgeoning internet scene likely influenced that metric as much as the law.

As for Sweden's prostituted population, the report was mixed. Fears of the law driving prostitution further underground weren't realized, nor did the risks of physical abuse or dangerous living conditions increase. However, while people who sought to leave the life favored the law, those who wished to stay in the trade denigrated it for hyping the social stigma.

After the report's release, countries such as Norway, Iceland, Canada, and Israel adopted the Equality Model, and today, many U.S. advocacy groups champion for states to institute similar laws.

"We who have been in the human-trafficking policy movement for a long time have been advocating for years that people in prostitution should not be criminalized for their exploitation," Alexi Meyers, director of anti-trafficking policy at Sanctuary for Families, told Big Think in an interview discussing the New York bill. "It's the only law where the victim is arrested. Instead of handcuffs, [people in prostitution] need services, need housing, need support."

Critically, the Sex Trade Survivors Justice & Equality Act does more than decriminalize prostitution. It also bolsters social services such as housing, job training, and mental health care. To help finance these services, money collected by the aforementioned buyer fine will go into a victim-compensation fund. The bill also expands protections for minors arrested under safe harbor and would vacate victims' prior convictions so they could more easily find jobs.

"When someone has had no family support, have been abused their entire lives, and they haven't gotten the services they need, at the age of 18, they haven't magically transformed from a victim of trafficking into a consenting adult," Jayne Bigelsen, vice president of advocacy for Covenant House, New York, said in our interview.

Bigelsen grants that not everyone engaged in the commercial sex trade may view themselves as a victim, but she notes that a large portion of the population remains vulnerable nonetheless. To treat such people as criminals, as so many contemporary laws do, does no one any favors. The fear of arrest actively discourages victims from seeking an "off-ramp" to the life and strengthens the coercive hold their pimps and traffickers maintain on them.

"[The law helps] reframe the understanding that this is not a crime. It is a form of gender-based violence and exploitation. I think, over time, people will have a greater understanding of that," Bigelsen adds.