Prostitution in the United States


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Prostitution is one of those legal issues that creates an intense debate and will likely remain an issue in America for years to come.

On the one hand, many feel prostitution is a victimless crime, only made dangerous as a result of its unregulated status and the fact that prostitutes cannot turn to authorities for help when exposed to violence or other criminal acts. Others feel that the prostitutes themselves are often the victims, and point to human trafficking, slavery, and violence against prostitutes as proof of that point.

Regardless of which side of the debate one takes, there are still a number of factual and legal considerations when it comes to prostitution in the United States.

Identification/Entrapment

One of the most common myths is that an undercover police officer has to admit to being a police officer if asked directly while posing as either a prostitute or a “John.” This is a myth, for obvious reasons. Cops never have to identify themselves or tell the truth in any situation. In fact, in many states there is significant case law describing officers engaging in many acts that would appear to cement the act of prostitution (such as intimate touching) which did not invalidate the arrest or the evidence obtained. For the same reason you would not expect a deep cover drug enforcement officer to have to admit to being a DEA agent to a drug lord, neither does a vice officer have to admit who they are until they are in court testifying against the defendant.

This does not constitute entrapment. Entrapment is when an officer twists your arm into doing something you would not have done otherwise for the purpose of getting an arrest. For example, if the officer would not let you leave, threatened you with violence, or otherwise seriously pressured you to commit a crime, that could be entrapment. In essence, the officer must lead someone in to an illegal activity they would not have engaged in without the police involvement. Withholding or lying about one's identity does not rise to that standard.

Danger

Prostitution is one of the most dangerous professions in the country; worse than Alaskan fisherman, or loggers, or oil rig workers. According to recent statistics, the death rate for prostitutes in the U.S. is 204 out of every 100,000. For fishermen, it is 129 out of every 100,000. Also, the average prostitute gets physically (but non-lethally) attacked approximately once a month. One reason for these numbers is that prostitution is illegal in every state (even Nevada where it is only allowed in brothels in certain parts of the state). When prostitutes face violence they have nowhere to turn without being arrested themselves. Consequently, prostitutes are an easy target, and even serve as the butt of jokes about violence and murder on TV shows and movies.

In fact, in the U.S., prostitutes get busted more often than Johns or pimps by a huge margin. Every year in the U.S., between 70,000 and 80,000 people are arrested for prostitution, costing taxpayers approximately $200 million. The breakdown of arrests: 70% female prostitutes and madams, 20% male prostitutes and pimps, and just 10% Johns. That equates to nine prostitutes/pimps being arrested for every one customer. Reasons for that vary, but the most obvious is that it is much easier and cost effective for law enforcement to answer ads or proposition obvious prostitutes on the street than to invest the time and manpower to attract Johns then ambush them without issue as they attempt to consummate the transaction.

Legal Adult Services

One common question is why are certain sexual acts for money legal and others are not? Generally, this refers to exotic dancing (“stripping”) and pornographic films. The answer is that in both situations they are only somewhat legal under certain circumstances, and may easily become illegal if a very thin line is crossed.

In the case of exotic dancing, states and local municipalities are usually responsible for licensing the conduct and providing regulations for how it may be conducted. While some jurisdictions allow contact with patrons, others do not. Some allow full or partial nudity and others do not. Some require that performers be licensed and others do not. The laws are so widely varied that you will need to check with local counsel to have your specific questions answered. However, in no jurisdiction will it be legal for a performer to offer sexual favors in exchange for money, even if it occurs in a private area of a club.

Pornography lives in a unique legal gray zone. Just as in prostitution, performers are paid for sex acts, but this is usually not considered illegal. The distinction? Usually it comes down to who is paying and the purpose for the sex. If a third party pays two people to have sex while it is recorded, this is a performance for entertainment purposes, and a few cases have held that this is legal because preventing this conduct could stymie depictions of love scenes in more legitimate, mainstream artistic films. The question becomes much fuzzier if the person paying for the performance is also involved in the sex act, and it is not at all clear that simply recording the sex act makes it a legal performance versus simple prostitution.

Conclusion

Prostitution is a serious legal issue that will not be resolved anytime soon. When in doubt, the best bet is to avoid any conduct that even remotely feels like prostitution. It can be dangerous, both legally, to one's health, and as a result of violence against prostitutes. It can also be unclear when certain other conduct may cross the line into prostitution, so it is probably most wise to avoid engaging in any overt use of sex to make money. But, if you or someone you know has questions about prostitution, it is important to contact a qualified attorney in your jurisdiction. As you can see, prostitution can be a very confusing, dangerous, and nebulous, so it is important to have someone who is an expert in prostitution law to assist you with your issues or questions.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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