The Standard of Harm and Proposition K

The basic case offered by proponents of Proposition K goes something like this: When purchased sex is an exchange between consenting adults, there is no harm and there are no victims, so the government has no business interfering. The argument resonates with those of a libertarian bent, who believe that people should have the right to do what they please provided they do not harm others. There lies the fatal flaw in Proposition K: Prostitution is not harmless, even to consenting parties, and more importantly poses undeniable and unacceptable risks to others.

One of the foundational principles of U.S. jurisprudence is that government has a right and an obligation to prohibit behavior harmful to others. This legitimate government role in protection is acknowledged by even the most fervent libertarians. In the classic 1859 essay “On Liberty,” John Stuart Mills – one of history’s greatest champions of individual freedom – writes that “…the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

Opposing camps have battled to a stalemate over whether individuals freely choose or are coerced or forced into prostitution. Proposition K opponents argue that prostitution should remain illegal because commercial providers are usually exploited by pimps or traffickers, while proponents counter that most “sex workers” freely choose to sell sex.

But the question of choice is irrelevant to the state’s right to prohibit prostitution if the risk of harm to others can be clearly established. Moreover, one need not prove that harm has actually occurred in any particular instance of commercial sex – one need only establish that the behavior places others at risk.

The legal precedents are many, but to illustrate the points relevant to prostitution, consider laws on driving while intoxicated. Adults are free to drink and licensed drivers are free to drive, but the combination is prohibited. Why? Because of the evidence that the risk of harm to others is unacceptably high: intoxication impairs driving, and impaired driving increases the likelihood of accidents, which can involve others.

The same logic applies to prohibiting pilots from stunt flying under bridges, to regulating indoor smoking, and to many other acts placing others at risk. The law does not require that an accident or any other harm has occurred in order to be penalized.

The evidence that purchased sex harms others is overwhelming. Research finds vastly elevated risks of contracting STDs, HIV, and other infectious diseases such as hepatitis and tuberculosis. If people want to risk infection themselves, so be it, but others often and unwittingly pay the price. “Customers” frequently demand and pay a premium for unprotected sex, and diseases are passed on to the next prostituted women and girls they hire, and to unsuspecting spouses and partners.
Communities are harmed. Nearly all police efforts related to prostitution is driven by community outcry, where people are tired of the used condoms and syringes on their doorsteps, or trying to answer their children’s questions about the sex and beatings they have witnessed. Studies have found businesses to suffer as well, with customers driven away by clearly evident prostitution and the blight that inevitably accompanies it.

Children are harmed. Studies find that prostitution market forces draw in girls at an average age of about 14 to 16 years, making the average provider of commercial sex the victim of rape of a child, or at best, statutory rape. The majority of runaway and throwaway girls are approached for commercial sex within 48 hours of appearing on the streets.

Opponents of criminalization argue that most of this irrefutable danger and dysfunction results from the illegal status of prostitution, and not in the nature of the “business” itself. When prostitution is not driven underground, they say, conditions will improve. Even if one accepts this dubious premise, Proposition K is not the answer. The decriminalization it seeks is the worst of both worlds, providing neither the criminal justice interventions afforded by criminalization, nor the potential taxation, regulation, and oversight protections potentially resulting from legalization. The premise that one must accept for decriminalization to improve the conditions of “sex work” tortures logic and common sense: The pimps, traffickers, and johns who abuse providers of commercial sex at alarming rates when police may be watching are somehow going to behave better when police turn their attention elsewhere.

A dirty little secret that Proposition K advocates choose to ignore is that legalizing or decriminalizing prostitution does not eliminate, and may not even reduce significantly, illegal prostitution. Why? Simple market forces. The oversight and regulation necessary to make it cleaner and safer require an investment in infrastructure, such as brothel inspections and health inspections for prostituted persons. This oversight can be paid by taxes on prostitution, as legalization proponents argue, but what does that do to the price? Drives it up. Few sex acts can be bought for less than $150 in Nevada's legal brothels, but can be bought on the street for $20 or less. Las Vegas has a huge problem with illegal prostitution even though legal alternatives are nearby.

Those arguing that decriminalization will make commercial sex healthy and safe may have a point for the relatively elite few operating at the higher end of the market, but conditions will remain dismal for the others who constitute the vast majority of commercial sex providers.