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COMMERCIAL SEX AND THE RIGHTS OF THE PERSON - A MORAL ARGUMENT FOR THE DECRIMINALIZATION OF PROSTITUTION

NCJ Number
60951
Journal
University of Pennsylvania Law Review Volume: 127 Issue: 5 Dated: (MAY 1979) Pages: 1195-1287
Author(s)
D A J RICHARDS
Date Published
1979
Length
93 pages
Annotation
CONCEPTS OF HUMAN RIGHTS AND PUBLIC MORALITY ARE EXAMINED AS A BASIS FOR THE DECRIMINALIZATION OF PROSTITUTION.
Abstract
IN CONTEMPORARY SOCIETY, PROSTITUTION IS USUALLY DEFINED IN TERMS OF AN INDIVIDUAL WHO INDISCRIMINATELY ENGAGES IN SEXUAL RELATIONS IN RETURN FOR MONETARY PAYMENTS. ENFORCEMENT PATTERNS RELATED TO PROSTITUTION INDICATE THAT THE CONTINUING CONCERN IS LARGELY WITH FEMALE SEXUALITY, AND THE TOTAL EFFECT OF THE CONTEMPORARY DEFINITION OF PROSTITUTION HAS BEEN TO NARROW THE CLASS OF FEMALE SEXUAL ACTIVITIES TO WHICH PROSTITUTION LAWS APPLY. IN ORDER TO UNDERSTAND THE UNIQUELY AMERICAN PRACTICE OF PLACING CRIMINAL PROHIBITIONS AGAINST PROSTITUTION, FOUR ARGUMENTS FREQUENTLY OFFERED FOR THE CRIMINALIZATION OF PROSTITUTION MUST BE CONSIDERED: (1) CRIMINOGENESIS; (2) CONTROL OF VENEREAL DISEASE; (3) INTRINSICALLY IMMORAL AND DEGRADING NATURE OF COMMERCIAL SEX; AND (4) SELF-DESTRUCTIVE OR DEBILITATING NATURE OF PROSTITUTION. OF THESE ARGUMENTS, THE FIRST TWO DO NOT JUSTIFY ABSOLUTE CRIMINAL PROHIBITION. IN THE AREA OF HUMAN RIGHTS, AUTONOMY AND EQUALITY ARE VALUES UNDERLYING THE PERSONAL RIGHTS THESIS INFERRED FROM THE CONSTITUTION. CONTRACTARIAN RECONSTRUCTION PROVIDES AN INTERPRETATION OF THE MORAL WEIGHT OF AUTONOMY AND EQUALITY. AN IMPORTANT FEATURE OF THE CONTRACTARIAN INTERPRETATION OF AUTONOMY IS THE ASSUMPTION OF IGNORANCE ABOUT SPECIFIC IDENTITY AND THE CONSEQUENT REQUIREMENT THAT A DECISION BE REACHED ON THE BASIS OF EMPIRICAL FACTS CAPABLE OF INTERPERSONAL VALIDATION. THE MORAL CONDEMNATION OF PROSTITUTION RESTS ON A NUMBER OF DISPARATE GROUNDS, INCLUDING PROSTITUTION AS NONPROCREATIONAL SEX, PROSTITUTION AND ROMANTIC LOVE, AND PROSTITUTION AND DEGRADATION. IN ARGUING AGAINST THE CRIMINALIZATION OF PROSTITUTION, IT IS CONTENDED THAT THE PRINCIPLE OF SEXUAL AUTONOMY DOES NOT APPLY TO PERSONS PRESUMABLY LACKING RATIONAL CAPACITIES, SUCH AS YOUNG CHILDREN, AND THAT IT DOES NOT VALIDATE THE INFLICTION OF BODILY HARM. THE LIBERTY OF SEXUAL EXPRESSION COMPORTS WITH THE LIBERTY OF OTHERS TO CHOOSE TO BE SEXUAL PARTNERS. THEREFORE, THERE IS NO MORAL OBJECTION TO PROSTITUTION ON GROUNDS OF SEXUAL AUTONOMY WITH REGARD TO THE REASONABLE REGULATION OF CONSENSUAL ADULT SEX (TIME, MANNER, AND PLACE). BECAUSE THERE ARE NO ADEQUATE MORAL ARGUMENTS FOR CRIMINALIZING CONSENSUAL ADULT SEX, PUNISHMENT FOR PROSTITUTION VIOLATES PERSONAL RIGHTS. THREE LEGAL ALTERNATIVE APPROACHES TO PROSTITUTION ARE EXAMINED: LICENSING; REGULATIONS CONCERNING TIME, MANNER, AND PLACE; AND NO REGULATIONS AT ALL. CASE LAW IS CITED, AND FOOTNOTES ARE PROVIDED. (DEP)

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