Women as perpetrators: does motherhood have a reformative effect on prostitution?

• Author: Kohm, Lynne Marie

An incarcerated prostitute, who had just given birth to a baby girl, awaited the hearing on her decision to give up her child for adoption. (1) As her gaze drifted toward the counselors and social workers who had assisted her in the adoptive placement process, she could not help but wonder if they were the only friends that she had in the world. (2) As part of the adoption process, a termination of parental rights hearing followed, where the judge read her entire criminal history into the record. (3) With a public litany of numerous convictions for drug possession and prostitution, the judge painted a picture of a criminal who was now doubly villainous for choosing adoption for her child. (4) Would not even the prospect of motherhood prove to be redemptive in her life? (5)

In 2004, there were 90,231 arrests for prostitution in the United States. (6) One in three women in jail today were arrested for prostitution. (7) Among women in jail for felonies, the rate is even higher--seventy percent of these inmates were initially arrested for prostitution. (8) For women, prostitution is often a gateway crime leading to drug possession and use, (9) or a derivative crime that is committed to sustain a drug habit. (10) For the prostitute who had given up her child for adoption, did her drug dependencies perpetuate a cycle of crime that even motherhood could not break? Or was she a sacrificial heroine for placing her child's best interests above her own selfish desires to keep the child? (11) Could her decision for adoption have been based on the realization that the harmful and illegal circumstances in her life were not likely to change? (12) Is change even possible for a woman who has funded her survival and drug dependency with the sale of her body?

This article explores whether motherhood may have any restorative effect on prostitution. (13) Minimal research has been done in this area, but this article will seek to analyze the available data about prostitutes who are mothers, review the literature on this subject to date, and discern whether there is indeed any reformative or restorative effect on the criminal disposition of a prostitute who becomes a mother.

Section I provides an overview of the crime of prostitution. It analyzes the underlying themes of autonomy, power, authority, and control, and considers whether prostitution is an example of the ultimate loss of those qualities, or an exercise of complete freedom and liberty in autonomy. Section II discusses how motherhood affects the life of a prostitute. It analyzes current social science research and studies and explores maternal responsibilities in terms of potential work interruption, new personal roles, and anxieties associated with the work/family/crime triad. It also considers the moral concerns of prostitutes who become mothers. Section III analyzes whether motherhood is indeed a reformer of the criminal lifestyle of prostitution. Prostitute mothers share many of the anxieties of any working mother, with some dramatic departures due to the criminal nature of prostitution. Taking this into account, the article's conclusion offers some remedies which may help reform women who are trapped in prostitution.

Prostitution is referred to as one of the oldest professions in the world. (14) It is criminally prosecuted in the majority of jurisdictions in the United States, and is illegal in all states but Nevada. (15) Prostitution also has close links with drug use and organized crime. (16) Though criminal activity may arise out of economic necessity, events such as family concerns, health matters, or social issues can trigger the reform of a person's criminal tendencies. (17) This article explores the impact of such trigger events on prostitutes. (18) Specifically, it considers what happens when the women who perpetrate this crime (19) become mothers. What effect does motherhood have on the criminal disposition toward prostitution? Could the responsibility and privilege of motherhood possibly bring reform to that criminal disposition?

Whether or not motherhood has a restorative or reformative effect on prostitution is worth examining. Because of the inherently transcendent and wondrous nature of motherhood, there exists the hope that motherhood may in some way reform criminal behavior, particularly in a crime involving one's sexual disposition. As this article concludes, however, such hope us not realized in the research that has been done on this topic to date.

1. LEGAL RATIONALES FOR PROSTITUTION

   Legislation concerning prostitution varies globally. (20) Of the varied western (21) methods of responding to prostitution and the exploitation of persons in the global sex industry, countries criminalize, legalize, decriminalize or require registration or licensing in the sex trade.

   Prostitution is legal in Denmark, Germany, Greece, the Netherlands, and Switzerland, and in all but one state in Austria. (22) It is legal in Finland, France, Italy, Portugal, Spain, and Canada. (23) Similarly, it is illegal everywhere but Nevada in the United States, (24) and some form of registration, licensing, or health checks is required in Austria, Belgium, Greece, Netherlands, Switzerland, Turkey, and parts of Australia. (25) It is decriminalized in Sweden, New Zealand, and parts of Australia. (26) Many of these arrangements also include some form of criminal offence for exploiting, trafficking, promoting, or encouraging prostitution, or benefiting from the prostitution of another. (27)

   There is generally growing level of tolerance for prostitution and the sale of sexual services. (28) Much of this tolerance is based on the legal rationale that a person has a liberty interest in his or her own sexuality.

   1. Liberty

      Liberty is the area of freedom that includes privacy, autonomy, and a right to pursue one's own form of happiness. Liberty interests have been protected by the Supreme Court of the United States in the area of sexuality in numerous cases involving procreation, (29) marital privacy relating to contraceptive use, (30) sexual privacy in contraceptive use for non-married people, (31) autonomy in abortion choices, (32) and sodomy. (33) Prostitution has not been defended as a liberty interest at the federal level, but has been argued by legal academics to be a liberty interest based on the autonomy, privacy, and equality interests that render it better served by regulation. (34)

      Autonomy over one's body, particularly in regard to sexuality, is a prime focus of many legal academics and some feminists. Prostitution is viewed as a matter of free choice. (35) The prostitute is often portrayed as being strong, independent and autonomous, and as having pride in her work. (36)

      Prostitutes are viewed, from a free trade perspective, as sex workers in a legitimate area of commerce. (37) The work is seen as a voluntary contract, and assumes a mutually beneficial relationship between the parties to the contract. (38) "According to this view, prostitution is no less legitimate than any other contractual business arrangement; while the state may have an interest in taxing and/or regulating it, [it] has no business in banning it." (39)

      These concepts of autonomy and contract, however, are more idealistic than realistic. As eroticism moves from bargained-for intimacy to forced or manipulated sexual services, prostitution can become enmeshed in a conflation of violence. (40) The prostitute's autonomy is then corrupted by the power exerted by another over her body. (41) This twists the concept of autonomy. (42) Research on prostitution that focuses on sex work as a bargained-for contract often does not see the manipulative and possibly extortionist nature of sex work. (43) Some feminists see prostitution as "another example of the oppression of women." (44) More importantly, legalization of prostitution based on these rationales has possibly fanned into flame the burgeoning sex trafficking industry. (45)

      Some legal regimes, nonetheless, are moving toward a trend of acknowledging the legitimacy of sex work to protect a liberty interest.

      [I]n recent years a number of countries have been reviewing their approach and, in some cases, have concluded that a greater acceptance of the existence of a sex trade is justified in order to minimise the stigmatization associated with prostitution and introduce greater controls over the health and safety of those involved in prostitution and of the wider public. (46) It is clear that many of the laws relating to prostitution are "outdated, confusing, and ineffective," (47) and some nations are relying on legislative means to introduce new offenses and tougher penalties for persons who exploit others for the purposes of prostitution. (48) The act of prostitution, nonetheless, remains one that is widely dealt with on a criminal level, rather than a rehabilitative or social basis, and even less frequently as a protected liberty interest.

   2. Criminal nature of prostitution

      Prostitution is by its very nature perilous, (49) and is prosecuted because it affects the wider community in numerous negative ways. (50) Furthermore, it often assumes the abuse or exploitation of one person by another, and "has close links with problematic drug use and, increasingly, with transnational and organised crime." (51) As a gateway crime, prostitution has grown tremendously in the under-eighteen age group; while charges for prostitution and commercialized vice decreased by 12.4 percent from 1995 to 2004, the same offense charged to individuals under eighteen years of age increased by 39.5 percent. (52) Moreover, the U.K. Home Office stated:

      Research shows that as many as 70 per cent of those involved in prostitution started out as children or young teenagers. Their vulnerability and need for affection means they can be easy prey for those determined to exploit them. Often they become trapped in a web of fear and deceit in which drug addiction, prostitution and responding...