Examining Alternatives to Criminalizing Sex Work in the United States

By Stacey McKenna and Chelsea Boyd  

Often referred to as the world’s oldest profession, prostitution was largely legal in the United States until the early 1900s. Since that time, the commercial sex trade—encompassing prostitution, pornography, exotic dancing, escort services, erotic massage and more—has come under a flurry of regulations, primarily at the state level. In particular, prostitution, or “full-service” sex work (the focus of this policy paper, and heretofore referred to simply as sex work), is criminalized to varying degrees in all 50 states, with few jurisdictional exceptions.

The definition of prostitution and its associated laws are reflections of “cultural, economic, political, and sexual dynamics.” Research demonstrates that people of varied gender identities; sexual orientations; and racial, ethnic and socioeconomic backgrounds choose to enter the commercial sex industry. In addition, as with most jobs, sex workers report a range of reasons for entering the trade, including limited alternative job options, superior earning potential, flexible schedules, enhancement of self-worth, enjoyment and more. Importantly, while existing research demonstrates that many sex workers choose the profession freely and report benefits from that choice, a subset of people involved in sex work are victims of sex trafficking, and finding ways to assist these victims is critical. Equally vital to the conversation about the harms of criminalizing sex work is recognizing that many organizations, politicians and activists promote strict, gendered narratives and conflate consensual sex work with sex trafficking to justify prohibition.

Evidence from diverse political, cultural and socioeconomic contexts across the globe indicates that prohibitionist policies “undermine the rights and safety of sex workers,” which harms sex workers who have been coerced as well as those who enter the trade voluntarily. Indeed, a growing body of international research shows that any criminalization of sex work—including the so-called “end-demand” model in which only buyers and third parties are targeted for arrest and prosecution—is associated with a range of health and safety consequences. For example, sex workers who have experienced criminalization or who live in even partially prohibitionist policy environments have an elevated risk of contracting sexually transmitted infections (STIs); experiencing violence at the hands of clients and law enforcement officers; and having difficulty accessing health care services. Furthermore, the stigma and isolation associated with sex work’s social and legal status can be harmful to mental health.

Recognizing these harms, sex worker advocates around the world are calling for decriminalization. Although the movement has yet to garner substantial traction in the United States, some jurisdictions have implemented alternatives to the full criminalization of sex work, albeit temporarily in some cases. In this policy study, we review the scientific literature and present perspectives from interviews we conducted with activists and scholars to explore real-world examples of alternatives to criminalization and their associated public health implications.

Washington DC: R Street, 2023. 7p.