Why Offences Specific to Prostitution are Unjustified
| Published date | 01 July 2022 |
| Author | Amit Pundik* |
| Date | 01 July 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12708 |
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Modern Law Review
DOI:10.1111/1468-2230.12708
Why Oences Specic to Prostitution are Unjustied
Amit Pundik∗
The criminalisation of prostitution takes various forms: some oences target sex-workers,oth-
ers are aimed at third-parties (pimps or advertisers) or criminalise clients for consumption. I
argue that existing theories cannot justify any oences specic to prostitution; hence, either
current prostitution-specic oences should be extended to other types of sexual relations
or the criminalisation of prostitution should be abolished. I propose a ‘continuum’ of dier-
ent scenarios in which consideration, either monetary or in-kind, was necessary for sexual
relations to take place – from street prostitution to marriage solely based on nancial inter-
ests. The absence of variables found in prostitution from the other scenarios on the contin-
uum does not impinge on the normative aw that existing theories attribute to prostitution.
Consequently,even if existing theories can justify the criminalisation of prostitution, they can-
not justify prostitution-specic oences because the same justication would over-inclusively
apply to forms of sexual relations whose criminalisation is commonly regarded as unjustied.
INTRODUCTION
The criminalisation of prostitution takes various forms: some oences target
sex-workers (for example for soliciting), others are aimed at third-parties (for
example pimps or advertisers), while some jurisdictions follow Sweden in crim-
inalising clients for purchasing sexual services. In this paper, I argue that existing
theories cannot justify these or any oences specic to prostitution; hence, ei-
ther current prostitution-specic oences should be extended to various other
types of sexual relations or the criminalisation of prostitution should be abol-
ished altogether. To suppor t this position, I propose my ‘continuum’ argument,
placing on a continuum dierent scenarios in which some consideration, either
monetary or in-kind, was necessary for the sexual relations to take place – from
street prostitution to marriage that is solely based on nancial interests. The
former is a paradigmatic manifestation of prostitution, to which prostitution-
specic oences are meant to apply, while cr iminalisation of the latter seems
unjustied.I examine various var iablesfound in prostitution but absent from the
other scenarios on the continuum and claim that their absence does not impinge
on the normative aw that existing theories attribute to prostitution. Conse-
∗Senior Lecturer, The Buchmann Faculty of Law, Tel Aviv University, and Academic Visitor, The
Faculty of Philosophy, University of Oxford. I would like to thank the anonymous referees, as well
as Hanoch Dagan, Michelle Madden Dempsey,Dana Pugach, and Re’em Segev, for helping me to
improve this article.I am grateful to the participants in the Cr iminal Theory Workshops held at the
Hebrew University, Jerusalem, and at the departmental seminar of the Law Faculty, Ono Academic
College,for theirinstr uctive questions andconstr uctive comments. I am also indebted to Widad Elias,
Maya Oren,and Iddo Ayali for their excellent research assistance.
© 2021 The Author.The Modern Law Review© 2021 The Moder n LawReview Limited. (2022) 85(4) MLR 879–905
Why Oences Specic to Prostitution are Unjustied
quently, even if existing theories can justify the criminalisation of prostitution,
they cannot justify prostitution-specic oences because the same justication
would over-inclusively apply to forms of sexual relations whose criminalisation
is commonly regarded as unjustied.
My continuum argument contributes to the contentious debate around pros-
titution in the following way. Existing theories have been repeatedly cr iticised
for their inability to adequately distinguish between selling sexual vs.other types
of service, since the normative aw they identify in prostitution also exists in
childcare provision, cleaning, or nursing.1The debate boils down to whether
sex (or its sale) has unique features that justify dierential legal treatment. I ar-
gue that, even if it does, existing theories cannot justify prostitution-specic
oences because the normative aw they identify in prostitution also applies to
a wide variety of sexual relations.2
The rst section details the sort of justication required. I assume that
criminalising conduct is justied only if that conduct is wrong, so I set aside
justications for proxy prostitution-specic oences. When seeking a justi-
cation for the criminalisation of prostitution, the immediate responses usually
refer to either consent or harm, hence the second section briey discusses
consent-based justications while the third considers harm-based justications,
including Michelle Madden Dempsey’s intr iguing arguments concerning
complicity and endangerment.3I then turn to theories of commodication,
which need not assume either (lack of) consent or (risk of) harm. I take
commodication theories to be the most promising candidate for grounding
the justication for prostitution-specic oences because the feature of pros-
titution that stands out in comparison to other forms of sexual relations is its
commercial nature:prostitution is often a one-o transaction between strangers
that carries clear commercial characteristics, such as monetary payment and a
relatively specic denition of ‘return’.
I focus on Margaret Radin’s version4because, compared to other commod-
ication theories such as those of Anderson and Sandel,5Radin’s contains the
most detailed criteria for identifying when commodication exists and when it
1 See M. Nussbaum, ‘“Whether from Reason or Prejudice”: Taking Money for Bodily Services’
(1998) 27 JLS 693; J.Brennan and P.Jaworski,Markets without Limits: Moral Virtues and Commercial
Interests (Abingdon: Routledge, 2016); C.Fabre, WhoseBodyIsItAnyway?JusticeandtheIntegrity
of the Person (Oxford: OUP, 2006); D. Satz, Why Some Things Should Not Be for Sale: The Moral
Limits of Markets (Oxford: OUP, 2010), 150. Satz uses such arguments to criticise other theories,
although hers seems equally susceptible to them.
2 My continuum argument echoes Viviana Zelizer’s sociological work, in which she rejects the
view that ‘[s]uch a profound contradiction exists between intimate social relations and monetary
transfers that any contact between the two spheres inevitably leads to moral contamination and
degradation’. In contrast, she observes, ‘[i]ntimate relations involving monetary transfers include
a variety of social relations, each marked by a distinctive pattern of payment’. V. Zelizer, ‘The
Purchase of Intimacy’(2000) 25 L & Soc Inquiry 817, 818-819. See also V.Zelizer, The Purchase
of Intimacy (Woodstock:Princeton University Press,2005) and the text accompanying nn 62 and
68 below.
3 M.M. Dempsey, ‘Sex Tracking and Cr iminalization: In Defense of Feminist Abolition-
ism’’(2010) 158 U Pa L Rev 1729.
4 M.J. Radin, Contested Commodities (London: Harvard University Press,1996).
5 E. Anderson, Value in Ethics and Economics (London:Har vard University Press, 1995); M.J. Sandel,
What Money Can’t Buy: The Moral Limits of Markets (London: Penguin, 2012).
880 © 2021 The Author.The Modern Law Review© 2021 The Moder n LawReview Limited.
(2022) 85(4) MLR 879–905
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