One of the many questions OkCupid users can answer to determine compatibility with potential mates is “Should prostitution be legal?” The answer options are:
- Yes, absolutely
- Yes, only if it were regulated
- I don’t think so
- ABSOLUTELY NOT (emphasis theirs)
In my four years of using the site, I’ve noticed that those who choose answer “2” frequently add something in the comments about regulations being necessary to protect workers from harm. Somewhat less frequently someone comments that regulations protect the health and general well-being of the public. My sample size is, of course, limited, but that thinking isn’t all that different from members of the general public who support legalization. Legalization, the thinking goes, would protect the public from the perceived health risks associated with prostitution by mandating testing, provide states with tax money (which relies on the false assumption that sex workers don’t currently pay taxes) and would control when and where sex work could be done. And, if prostitution was legal, sex workers would be safer because they would feel more comfortable utilizing the criminal legal system.
What they forget is that we have an example of legal prostitution in the United States: regulated, licensed brothels in the state of Nevada. While legalization provides benefits to the state, the workers are still treated as second-class citizens. Nevada has been home to brothels since the late 1800s, and the first licensed brothel opened there in 1971. Currently, there is no statute explicitly stating that prostitution is legal, but under state law, counties in Nevada with populations under 400,000 can allow brothels. These brothels are the only places in the United States where one can engage in legal prostitution, and the people doing this work are governed by three different sets of regulations: state laws, county laws and brothel rules.1 While the state laws are easy to access and review, county laws are less so, and brothel rules are not available to the public. The small size of the counties and towns that the brothels are in means that rules frequently change depending on the mood of the sheriff. This form of legalization is a combination of modern business law and Wild West attitudes.
Nevada state laws are the framework under which the counties containing brothels operate. They dictate where brothels (or “houses of ill fame” as the law describes them) can be located, the steps counties must follow in order to have legal brothels, advertising restrictions, and health regulations. They not only establish behavioral and structural regulations, but also include statutes requiring workers to be tested weekly for gonorrhea and chlamydia (through a cervical sample) and monthly for HIV and syphilis (through a blood test). A positive test result for any of these mean that the worker must quit working in a legal brothel. If a worker tests positive for HIV and continues working, they can be charged with a class B felony, and if the brothel owner knows of their test results they are liable if anyone contracts HIV from that worker. While it can vary by county, the fees for the tests are usually paid for by the worker. Condoms are mandatory for oral sex and intercourse. In order to further protect the health of clients, some counties place restrictions on how long a worker can be gone from a brothel before she has to be re-tested or require a chaperone if a worker goes out at night, lest she work independently and choose to not use a condom.
There are also strict laws regarding pandering beyond the typical “pimping” statutes that might come to mind. Living off the proceeds of prostitution is pandering, so workers’ spouses and partners better have their own employment! Providing transportation so that someone can engage in prostitution is also illegal. The transportation statute essentially prohibits anyone from providing a worker with a ride to work, as it finds that anyone transporting a worker with the intent to encourage them in engaging in prostitution is guilty of pandering. This is an interesting contrast to the policies that some brothels have of giving a fee to cab drivers who bring clients to their establishments or providing free limo service to clients coming from Las Vegas. While workers either have to drive themselves to work or find a ride with someone who doesn’t know what they do, clients can arrive in business-sponsored cars. Few things show intent to encourage someone to hire a prostitute more than sending a complimentary limo to whisk them away to a brothel.
State law also restricts advertising for both legal brothels and illegal prostitution. Brothels can only advertise in the counties where prostitution is legal. It’s also illegal to prepare or print an advertisement for illegal prostitution, which means that graphic designers, handbill printers and producers of small newsprint ad catalogs are now included in the category of people who are affected by the prohibition of sex work. The penalty for illegal advertising can include jail time and fees.
County laws regulate the actual license application process, fees, and zoning for brothels. They also include worker-specific statutes, like those governing work cards. Any employee at a brothel, including bartenders, must have a work card. In Storey County, home of the Mustang Ranch, workers must submit all previous addresses for the last three years, aliases, a criminal background check release, and a medical release form allowing the medical facilities and/or doctors to share her test results with the county. A work card can be denied for myriad reasons, including a conviction for petty theft or shoplifting in the last year or a drug-related misdemeanor conviction within the last three years.
In addition to state and county regulations, each brothel has its own set of rules. These rules aren’t available to the public, but there is an in-depth discussion of the rules at the Mustang Ranch in Alexa Albert’s book Brothel.2 Workers there must pay a rooming and food fee, and are required to stay at the brothel for a minimum of two weeks. While staying at the brothel, workers can only leave for medical exams (although there is also an option of seeing a doctor on site) or for special emergencies. Should they need something, like a toothbrush or a box of tampons, they must pay a fee to a house runner who will pick up these items for her. Workers negotiate their own fee with clients, often varying by which sex acts are going to be performed, and they have a 50/50 split with the house. They are also expected to tip the bartender, security workers and other staff. If they leave, they must return by a set curfew. Albert reported in her book that workers could not live or vacation in the town where they worked, but I did not find any Storey County statutes stating such.
The result of this kind of legalization is a system that benefits the state, county governments and brothel owners tremendously. The worker benefits in that she does not risk arrest (or at least not for prostitution, as she can still be arrested for violating a state or county regulation) and there is an assumption of safety. I would be interested to see statistics of rape and coercion in legal brothels versus incidents of the same with independent escorts. My suspicion is that legal brothels are not necessarily markedly safer than doing indoor prostitution illegally.
Legalization, at least under the Nevada model, means submitting to mandated testing and the county having access to those test results. It means paying fees to the county but also to the brothel. It means staying inside for long stretches of time and having restrictions placed on your movement, including during non-work weeks. It means you might be denied a work card if you’ve been convicted of not only violent offenses but also survival crimes, like shoplifting.
This model is not pro-worker, but pro-government, pro-customer and pro-business owner. One hopes that most workers get tested regularly for sexually transmitted infections, but it should be the worker’s choice when and how her body is subjected to tests and the results should be between herself and her doctor.3 While Nevada does have a criminal statute making it illegal to knowingly transmit HIV to another person, there are no regulations surrounding the health of those who wish to purchase sex at brothels. The fees, both for work cards and within the brothels, place the county alongside the brothel owner in the role of madam. Workers are asked to trade autonomy over their movements and submit to medical testing for a removed risk of arrest, and the county and brothel owners get to profit in return.
This is not an acceptable alternative to criminalization. On paper, these laws and rules appear to be incredibly restrictive, invasive and to the benefit of the government far more than the worker. It is also a system that may target workers with less resources. Independent workers who have access to screening tools and community can take their chances with working for themselves in cities where prostitution is illegal. Women who don’t have easy access to ways to stay safe might more frequently choose the comfort of knowing that they are engaging in a legal trade, and the state gets the cash reward for providing them with that option.
A more worker-friendly alternative is decriminalization of prostitution and prostitution-related offenses. Decriminalization would remove or significantly reduce criminal penalties, but would not create regulations the way that legalization would. Reducing jail or probation time to a ticket or fine—or eliminating penalties altogether—would still allow the worker to control personal aspects of her business without risking arrest.
Nevada is just one example of how legalization could work, and at best it is a hodgepodge of regulations. If this was the model for legal sex work in the United States—if even just a few of their laws became standard—sex workers would lose much of their independence of movement and communication to laws created by people who don’t know even basic information about the industry, like the fact that sex workers in the U.S. are a safer bet, health-wise, than a one-night stand from a bar. Until there is a model of legalization that focuses on keeping workers safe, decriminalization is the better option.
1. A note about language: there are many people who work in brothels who are not prostitutes. However, for the purposes of this article, when I write “worker” I mean prostitute unless otherwise indicated.↩
2. This book was published in 2002. The rules stated here may have changed since the book’s publication.↩
3. This is an excellent example of how laws that affect sex workers are often part of bigger systemic oppression. Requiring workers to agree to testing and sharing their results in exchange for being allowed to work is the medicalization of the female worker. Laws that require transgender people to have a certain set of surgeries in order to change the gender marker on their birth certificate and programs that offer benefits or money only to female drug users who agree to be sterilized are other examples of removing medical autonomy from marginalized groups in trade for greater access to privilege.