Decriminalizing Sex Work: Will Prostitution Become Legal?

February 2, 2021

By Jill K. Sanders, Esq.

It is often referred to as the “oldest profession.” Yet prostitution and patronizing a sex worker are crimes that, in some circumstances, carry heavy criminal penalties. Recently, there has been a trend towards decriminalizing sex work. Some are even calling to make it legal. And now, New York may soon be changing its laws prohibiting prostitution.


What Is Prostitution?

Article 230 of New York’s Penal Law makes prostitution a crime. In its simplest terms, prostitution is defined as when a person engages (or agrees or offers to engage) in sexual conduct with someone in return for a fee. Both the sex worker and the person patronizing the sex worker, sometimes called a “john,” can be criminally prosecuted. People who promote prostitution, often referred to as “pimps,” can also face criminal penalties.

There are various degrees of criminalization of prostitution in New York. If a sex worker is in a school zone, this will enhance the penalty. Moreover, if the john patronizes a minor or if a pimp promotes the prostitution of a minor, this will make the charge much more serious. And when prostitution involves a minor, the john and the pimp will also face sex offense charges under Article 130 of the Penal Law which require registration as a sex offender.


Why Decriminalize Sex Work?

There are places in the world where sex work has already been decriminalized or legalized. Now, in New York, lawmakers are introducing legislation to decriminalize sex work. Indeed, the Brooklyn District Attorney recently vacated more than 1,000 warrants issued for prostitution charges.

A basic human right is that of one’s right to autonomy and privacy. Decriminalizing sex work honors this, and it would allow consenting adults to engage in sex for a price. In doing so, sex workers would be less likely to be exposed to abuse and exploitation. They would be less vulnerable to violence by those who see sex workers as easy targets. It would also increase the ability of sex workers to seek justice for crimes committed against them. Moreover, decriminalization may improve the health of sex workers and allow them to work in safer environments.


Sex Work or Sex Trafficking?

Compelling prostitution and sex trafficking are serious crimes which need to be prevented, detected, and prosecuted. Decriminalizing sex work does not mean that sex trafficking will become acceptable to law enforcement. Nor does it mean that prostitution of children will become legal.

The sex work that advocates want to decriminalize involves the consent of both the sex worker and the john. Specifically, there is an agreed upon fee, and the type of sex that is exchanged is also agreed upon. Above all, the consent and knowledge of the parties as to their arrangement is of the utmost importance.

However, sex trafficking is accomplished by force or other means that take away the consent of the sex worker. Children cannot consent to sex, nor can they consent to sex work. And those who are forced into prostitution are victims who are worthy of the attention of law enforcement. With decriminalization, more resources can be directed to routing out the criminals who promote this type of prostitution, which dehumanizes and victimizes so many adults and children.