Understanding 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. But throughout history and across cultures, we have diverse views.
Harm reduction vs. “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.
So 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 in the United States? And what does it look like in other nations?
Sex Workers are People
Often, our discussion of prostitution is dehumanizing. And that’s remarkable, since sexuality is a core part of being human. So we should keep in mind the people, performing sex work. How do our laws affect the health, income and rights of sex workers?
Are these human beings better off working in a criminal underground, unregulated economy? Or, are sex workers safer, and better off, where legal?
Where legal and regulated, sex workers have enforceable, legal rights. But where illegal, sex workers tend to be dehumanized. Human sexuality is a natural and important part of us all. We should not look down upon sexuality or people working in the sex industries. We are all the same.
MALUM PROHIBITUM
We can divide criminal laws 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. And common law crimes were generally “mala in se.”
But a malum prohibitum offense is not naturally an evil. Rather, by decree something becomes a crime solely as a consequence of its being forbidden; like some gambling, drugs.
Yet it’s legal in other states and countries. So prostitution law in other jurisdictions shows us that it is a “malum prohibitum” offense.
And Minnesota’s felony crimes of violence statute is further evidence of malum prohibitum status. Yes, some prostitution “crimes” are actually on that list of “crimes of violence.” While there is no consensus that sex work should be a crime at all; consensual sex for money is obviously not violent.
Do laws forbidding an act, make it go away?
Drug prohibition laws show us the answer. And to the contrary; making alcohol, other drugs, and gambling a crime, actually increases social harms.
So we can distinguish between consequences of:
- the act vs.
- the law.
Many conflate the two. But in reality, they are separate and distinct.
Cause vs. effect: prostitution law
Which causes the social harms: the act, or the criminal laws? So, let’s begin with a some associated social harms:
Coercion. Sex workers rarely face coercion where legal and regulated. But where unregulated and criminalized, coercion is common. And human trafficking requires criminalization. Criminal laws enable 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 a crime; anything goes. Prostitutes mostly begin sex work under the age of 18 in Minnesota. More policing, more laws, more punishment simply creates more underage victims.
Nuisance. Is this a “neighborhood livability crime?” With technology, street prostitution is no longer the issue it once was. But to the extent it still is, legal prostitution can be zoned into a red light district. So, Minneapolis has zoned strip clubs and pornography into one part of town. But prostitution’s move from the streets to the web has reduced this “neighborhood livability” issue.
Corruption. Money from vice “crimes” will be used to corrupt those in a position to exercise discretion. But this is a product of the laws creating the illegal economy, not the product of sex.
Prostitution law aggravates social harms
All of those are direct products of criminalization, the laws.
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 unregulated, a crime, increase associated drug addiction.
Morality. Many view the sex act as immoral and unethical, though compared to others, a minor sin. Of course, some 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 should 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 law aggravating these social harms?
See our article: Jesus as Criminal Defense Lawyer: Woman Accused of Adultery.
Minnesota Prostitution Law
Prostitution is unregulated in Minnesota because it is a crime. So, it is part of the illegal, underground economy. Minnesota’s criminal prostitution law statutes address both the common and the unusual cases.
Most, not all, arrests are customers
By far the most common prosecutions in Minnesota are those against would-be customers. And 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 the 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 websites like Craigslist, Backpage or Rubmaps. Prosecutors generally charge these online solicitation sting cases as misdemeanor or gross misdemeanor crimes.
Felony cases
Felony prostitution law crimes in Minnesota are less common. But when prosecutors charge a felony, they allege people under 18 years old, pimps, promoters, or coercion. And though Minnesota prostitution crime laws involve sex, we can distinguish them from sex crimes.
Prostitution thrives in an unregulated, underground economy. And this makes investigating cases difficult for law enforcement (police).
Ironically, legalizing prostitution would help law enforcement directly target the higher priority problems. These include the under 18 years old, pimps and promoters, and coercion cases.
About the author
The author, Thomas C Gallagher is a prostitution attorney in Minneapolis.
Question? Call Attorney Thomas Gallagher: 612 333-1500.
Attorney Thomas Gallagher regularly defends people accused of prostitution and solicitation in Minnesota.
More articles of interest
Defending Minnesota Prostitution Charges
Age-based Sex Crimes
Minnesota Criminal Sexual Conduct Laws