Several US states consider legislation to decriminalise prostitution

'This is about the oldest profession, and understanding that we haven’t been able to deter or end it, in millennia'

Decriminalisation bills have been introduced in Maine and Massachusetts, with several more expected to follow (Stephanie Keith/New York Times)

Marijuana has gone mainstream, casino gambling is everywhere and sports wagering is spreading.

Could prostitution be next?

Lawmakers across the country are beginning to reconsider how to handle prostitution, as calls for decriminalisation are slowly gaining momentum.

Decriminalisation bills have been introduced in Maine and Massachusetts; a similar bill is expected to be introduced to the city council in Washington DC in June; and lawmakers in Rhode Island held hearings in April on a proposal to study the impact of decriminalising prostitution.

New York may be next: some Democratic lawmakers are about to propose a comprehensive decriminalisation bill that would eliminate penalties for both women and men engaged in prostitution, as well as the johns whom they service.

“This is about the oldest profession, and understanding that we haven’t been able to deter or end it, in millennia,” said Senator Jessica Ramos, one of the plan’s backers.

“So I think it’s time to confront reality.”

The New York legislation appears unlikely to pass in the coming months, but the idea of decriminalisation has already amassed a growing coterie of prominent supporters, suggesting that it might continue to gain traction.

The debate is unquestionably polarising in many circles, even among advocates for sex-trafficked and abused women who fear that creating a legal path for prostitution will not eliminate, but rather actually encourage, underground sex trafficking.

And decriminalisation is already facing intense push-back in state capitals from opponents who call the measures naïve and potentially dangerous.

Still, the issue has crept into the Democratic Party’s nascent presidential campaign.

In late February, Kamala Harris became the first candidate to endorse some manner of decriminalisation, an idea also floated by another contender, the former governor of Colorado, John Hickenlooper.

“When you’re talking about consenting adults, I think that yes, we should really consider that we can’t criminalise consensual behaviour as long no one is being harmed,” said Ms Harris, in an interview with The Root.

Supporters of decriminalisation see their efforts as part of a larger, decades long liberalisation of American mores, like lifting Sunday bans on selling alcohol and legalising marijuana.

They also frame the issue as an act of harm-reduction for prostitutes and a tacit admission that modern law enforcement and age-old moral indignation has done little to stem the practice.

“We’ve learned this lesson many times with the prohibition of alcohol, or criminalisation of abortion, or even the criminalization of marijuana: the black market creates dark circumstances and provides cover for a lot of violence and exploitation,” said Kaytlin Bailey, a comedian and former prostitute who serves as the spokeswoman for Decriminalise Sex Work, which was founded last year.

Prostitution is legal only in a few counties in Nevada, and even there, the brothel industry had to recently beat back a bill that would have outlawed prostitution in the state.

And even the most optimistic of those pushing for changes do not believe that any state will soon fully decriminalise prostitution.

But in places like New York, where Democrats now control the state Legislature after a slew of Republican incumbents were unseated in November by Democratic challengers running on progressive platforms, there is no question that the environment has changed.

At a recent rally in Albany to repeal a statute criminalising loitering for the purposes of prostitution, former sex workers stood next to lawmakers like Ms Ramos and Richard N Gottfried, chairman of the health committee.

Nonetheless, some advocates for sex-trafficked and abused women characterise such efforts in New York and elsewhere as misguided. They believe that full decriminalisation will create a demand that will be filled by more women.

“Prostitution is inherently violent,” said Ane Mathieson, a program specialist at Sanctuary for Families, a Manhattan-based organisation that serves victims of domestic violence and is part of an anti-decriminalisation coalition.

“Sex buying promotes sex trafficking, promotes pimping and organised crime, and sexual exploitation of children.”

The push to present decriminalisation as a civil rights issue also upset Laura Ramirez, a co-ordinator for AF3IRM, an international feminist group, who said she was “absolutely appalled at the fact that this is being sold as something that’s progressive”.

“This proposed legislation is the most classist, racist and absolutely obtuse legislation that we have ever seen,” Ms Ramirez said, during a counter-protest opposing decriminalisation in Albany, adding “women and girls of this state deserve better”.

While decriminalisation is unlikely to pass in New York this year, a pair of bills dealing with elements of prostitution appear to have a greater chance of passing, including one that would vacate non-prostitution related crimes, like drug charges, from the records of victims of sex trafficking.

It recently advanced out of a Senate committee.

A second bill would repeal loitering for the purposes of prostitution statute, a law that advocates say leads to unfair arrests of people — often transgender — for wearing skirts, carrying condoms or even “walking while trans”.

Governor Andrew Cuomo, a Democrat, has offered no opinion of those bills or of decriminalisation, saying only that he would review such proposals.

Some opponents of legalisation support a form of partial decriminalisation known as the “Nordic model,” or the “End Demand” approach, which emphasises the prosecution of people who buy sex, but not those who are selling their bodies, and offers prostitutes social services instead.

Such policies have high-profile supporters like Gloria Steinem, who offered her endorsement of the Nordic model at a recent demonstration at City Hall in New York City aimed at fighting efforts in Albany.

“It is crucial to decriminalise prostituted women, men and children,” Ms Steinem wrote in a statement read at the rally. “And equally crucial not to decriminalise the pimps and traffickers who exploit them.”

Adding to the complexities around the issue, some opponents of full decriminalisation, like Sanctuary for Families, support vacating criminal records and eliminating loitering statutes, a position also held by Decrim NY, the coalition behind the broader decriminalisation push in New York.

The decriminalisation bills offered by lawmakers in Massachusetts and Maine would create systems something akin to the Nordic model, eliminating criminal penalties for prostitutes, but continuing to criminalise sex buyers and pimps.

Despite some progress, legislative achievements around prostitution have often been meagre.

The Maine bill was declared dead in the state Senate in late May, and other recent efforts have also stalled: in 2017, for instance, the New Hampshire House of Representatives narrowly passed a bill establishing a legislative committee to study decriminalising sex work, like the current proposal in Rhode Island.

But the New Hampshire bill stalled in the state Senate amid strong opposition from Governor Chris Sununu, a Republican.

The bill’s sponsor, Elizabeth Edwards, left office last year, but said she hopes that her former colleagues will continue to fight.

“It seems like an area of policy where we could do way better,” she said.

“I wish the world knew that these are just people making money in a way that I think is a net societal benefit,” Ms Edwards, a Democrat, added.

“There are always going to be people that want sex. It’s a basic human drive. All you can do is make it safer.”

The New York Times