Sex, Drugs, and Ballot Measures: An Argument for Massachusetts to Fully Decriminalize Prostitution.

• Author: Jordan, Annie

"Say that one of those women was a sex worker, then is that person meant to be shamed in their death? Would they have deserved it? The answer is no." (1)

1. Introduction

   On March 16, 2021, an armed shooter killed eight people at two massage businesses associated with prostitution. (2) The shooter told law enforcement the victims were "temptations" to "eliminate." (3) These killings are merely one example of the perpetual violence and outright dehumanization sex workers face. (4) This pervasive violence extends into pop culture and entertainment, where sex workers are killed for enjoyment and dehumanized upon their deaths. (5) For example, in the popular video game series Grand Theft Auto, players hire sex workers to recharge their character's health before violently killing the sex worker to steal back their character's money. (6) Beyond violence, the criminalization of prostitution and resulting stigmatization removes sex workers from the public eye, leading to further untreated issues like possible drug addiction. (7)

   There are four main legal approaches to regulating prostitution: total criminalization, the Nordic Model, full decriminalization, and legalization. (8) Total criminalization makes prostitution an illegal offense under the criminal code. (9) The Nordic Model, also known as partial decriminalization, criminalizes buying sexual services but removes criminal penalties for selling sexual services. (10) Treating prostitution like many other occupations, full decriminalization removes criminal penalties for the sale and purchase of consensual sex between adults and all related activities. (11) Legalization makes prostitution legal under strict, state regulations governed by labor and licensure laws. (12)

   Sex worker advocates and public health organizations generally support some form of decriminalization to improve sex workers' health and safety and to decrease sex trafficking, but they disagree on the approach. (13) Some advocates support eliminating criminal penalties for sex workers, while continuing to criminalize clients and third parties who enable prostitution, such as managers and landlords. (14) This approach is called the "Nordic Model"--named for its use in Sweden, Iceland, and Norway. (15) But public health organizations, sex workers, and most activists point out the adverse effects of the Nordic Model--including increased violence towards sex workers--and instead argue for full decriminalization. (16)

   The Tenth Amendment to the United States Constitution empowers each state to address prostitution's criminalization as they see fit. (17) Except for ten rural counties in Nevada, prostitution is illegal in the United States. (18) Recent legislative efforts to fully decriminalize prostitution or adopt the Nordic Model have failed in multiple states. (19) Nevertheless, efforts towards not prosecuting prostitution and repealing related offenses, such as loitering, have been successful at the local level. (20) These efforts mirror the incremental movement to legalize marijuana. (21)

   This Note argues for full decriminalization of prostitution in Massachusetts. (22) Part II of this Note explores the history of prostitution in the United States, attempts to reform prostitution laws in Massachusetts, and compares the two approaches to decriminalization adopted in Sweden and New Zealand. (23) Part II also discusses the current status of marijuana laws in the United States, reasons for marijuana reform, and success of ballot measures in decriminalizing and legalizing marijuana in Massachusetts. (24) Part III begins by arguing against prostitution's criminalization based on its detrimental harm to sex workers before comparing Sweden's results under the Nordic Model to New Zealand's results under full decriminalization and argues for full decriminalization of prostitution in Massachusetts. (25) Part III then discusses the similarities between the criminalization of marijuana and prostitution based on their respective harms. (26) This Note concludes by suggesting sex workers' advocates place full decriminalization of prostitution on the ballot in Massachusetts. (27)

2. HISTORY

   1. Prostitution

      1. History of Prostitution in the United States

         Until the nineteenth century, prostitution was legal in the United States, and it was prevalent in large cities, frontier towns, and areas where soldiers gathered. (28) The fear of sexually transmitted diseases (STD) during the Civil War drove early efforts to regulate prostitution. (29) After the Civil War, many cities allowed licensed brothels to operate if they conducted regular health checks. (30) Growing public health hysteria surrounding prostitution and the spread of STDs drove Congress to pass the Chamberlain-Kahn Act during World War I, which allotted funding to the states and authorized them to detain, isolate, and commit those suspected of having a venereal disease to protect American troops. (31)

         In addition to public health concerns, anti-immigration sentiment contributed to anti-prostitution legislation, such as the Page Act, which banned importing women for prostitution. (32) To further limit both immigration and prostitution, Congress passed the Mann Act, which criminalized the interstate and foreign transportation of individuals for the purpose of prostitution and expanded federal law enforcement. (33) The United States Supreme Court ultimately recognized the Mann Act as a valid use of Congress's power under the Commerce Clause. (34) Due to its enforcement under the Commerce Clause, the Mann Act significantly expanded the powers of the Interstate Commerce Commission. (35)

         While Congress can regulate prostitution across states lines under the Commerce Clause, the Tenth Amendment grants states the primary authority to regulate intrastate prostitution. (36) With the exception of Nevada, all states criminalize both the purchase and the sale of sex, but the category and associated penalties differ across states. (37) Even within Nevada, there are only ten rural counties that allow prostitution, and prostitution is only permitted within licensed brothels. (38)

      2. Prostitution in Massachusetts

         Massachusetts's prostitution laws criminalize both the sale and purchase of sexual conduct. (39) Like some other liberal states, progressives have campaigned--unsuccessfully--for decriminalization by proposing new reforms to Massachusetts's prostitution laws. (40) Over the past few years, legislators have proposed both full decriminalization and the Nordic Model. (41) One failed bill would have decriminalized solicitation and the purchase and sale of sex between consenting adults, repealed prostitution-related convictions, and expunged state records for prostitution. (42) Two other failed bills would have adopted a form of the Nordic Model by decriminalizing the sale of sex but keeping the purchase criminalized. (43) In addition, legislators proposed a bill that would have repealed parts of Massachusetts's criminal code that allows police to target "common night walkers" and "common street walkers." (44) The common night walking law is particularly harmful to the transgender community, as police may stop, search, and arrest transgender individuals on suspicion of sex work merely for "walking while trans." (45)

      3. Arguments for Criminalization

         Social reformers during the Progressive Era justified prostitution's criminalization with societal concerns of moral decay, changes in family structure and women's roles, and public health hysteria. (46) Today, advocates justify continued criminalization with five concerns. (47) Although there is evidence to the contrary, they argue that prostitution causes an increase in crime. (48) Viewing all sex workers as victims of sex trafficking, criminalization advocates contend that prostitution is a form of gender-based violence. (49) Using this victimization narrative, they argue that prostitution commodifies, degrades, and objectifies sex workers. (50) Rooted in concerns established during the Progressive Era, criminalization advocates maintain that prostitution violates religious values and traditional family values. (51) Finally, they insist that prostitution increases the spread of STDs. (52)

      4. Arguments for Full Decriminalization

         The movement to fully decriminalize prostitution primarily focuses on the adverse impacts of criminalization. (53) Public health organizations contend that criminalization increases the prevalence of STDs and decreases sex workers' access to healthcare due to the resulting stigma. (54) Advocates for full decriminalization point to qualitative and quantitative evidence demonstrating that any form of criminalization--including the Nordic Model--increases violence towards sex workers mainly due to unequal protection under the law and the stigma associated with engaging in illegal activity. (55) Full decriminalization advocates support their argument with evidence demonstrating that criminal records for prostitution increase barriers to social services and public benefits, leading to food and housing insecurity. (56) Women of color, especially Black cis-gender and transgender women, are particularly vulnerable to the resulting harms of criminalization because they are subject to disproportionate policing and pervasive harassment and violence. (57) Social workers and advocates for full decriminalization argue that full decriminalization assists with identifying and protecting victims of sex trafficking because criminalization drives nontrafficked, voluntary sex workers underground to avoid arrest, making it difficult for authorities to distinguish between consensual sex workers and trafficked victims. (58)

         Legal scholars argue there are insufficient rationales for prostitution's continued criminalization, categorizing prostitution's criminalization as legislation based on private morality derived from the majority sentiment that commercialized sex is morally wrong. (59) Scholars differentiate...