SEX WORK
EDITED BY KAITLYN WILLOUGHBY, TAYLOR–RYAN NEDD, TESS OSTROFF,
ZIWEI LIN, & RILEY SMITH
I. INTRODUCTION ........................................ 1054
II. DEFINITION OF PROSTITUTION UNDER STATE LAWS. . . . . . . . . . . . 1058
A. SEXUAL ACTIVITY OR CONDUCT ........................ 1058
B. COMPENSATION.................................... 1060
C. INTENT ......................................... 1060
III. CRIMES RELATED TO PROSTITUTION ....................... 1060
A. PATRONIZING A PROSTITUTE ........................... 1061
B. PANDERING AND PROCURING........................... 1062
C. HEALTH AND SEXUALLY TRANSMITTED INFECTIONS........... 1063
IV. DEFENSES TO PROSTITUTION CHARGES ..................... 1064
A. RECOGNIZED DEFENSES .............................. 1064
B. DEFENSES NOT RECOGNIZED .......................... 1066
V. LEGAL MODELS OF REGULATION AND DECRIMINALIZATION. . . . . . 1066
A. PROSTITUTION IN NEVADA ............................ 1066
B. OTHER LOCAL REGULATORY EFFORTS .................... 1068
VI. CONSTITUTIONAL ISSUES ................................ 1069
A. FREEDOM OF SPEECH ................................ 1070
B. DUE PROCESS ..................................... 1070
C. EQUAL PROTECTION ................................ 1071
VII. ARGUMENTS AND EFFORTS FOR DECRIMINALIZATION. . . . . . . . . . . 1073
A. DEBATE OVER DECRIMINALIZATION ...................... 1073
B. LEGAL EFFORTS TO ACHIEVE DECRIMINALIZATION ........... 1076
C. SEX WORK IN THE LGBTþCOMMUNITY . . . . . . . . . . . . . . . . . 1078
VIII. CONCLUSION......................................... 1079
1053
I. INTRODUCTION
Sex work
1
has a long and lucrative history in the United States (“U.S.”) and
around the world. Today, the multi-billion-dollar commercial sex industry
encompasses a wide range of sexual services—some legal and others not—
including pornography, stripping, phone and internet sex, and sexual services
obtained in brothels, massage parlors, through escort services, or on the street.
2
Until the nineteenth century, prostitution was generally legal in the U.S. and
flourished in large cities.
3
Sex work remains criminalized in nearly every state,
4
Prostitution, LEGAL INFO. INST. (June 2020), https://perma.cc/9G3K-MUP5; Nicole Bingham,
Nevada Sex Trade: A Gamble for the Workers, 10 YALE J.L. & FEMINISM 69, 69 (1998).
though it continues to have an entrenched and visible presence throughout the
country. Since the late 1990s, and particularly since the COVID-19 pandemic,
5
Gabrielle Drolet, The Year Sex Work Came Home, N.Y. TIMES (Apr. 10, 2020), https://perma.cc/
WDZ8-LR25 (noting that “OnlyFans .. . reported a 75% increase in overall new sign-ups—3.7 million
new sign-ups [in the month of March 2020], with 60,000 of them being new creators.”).
the U.S. has witnessed a dramatic growth in the commercial sex industry, with an
increase in the privatization of commercial sex services.
6
Internet technology led
to a rise in phone sex, internet sex, and escort services, allowing more Americans
to purchase pornography and sexual services from private spaces than before.
7
While increased privatization shields customers from police surveillance and
arrest, this development in sex work has not necessarily led to safer working con-
ditions for all sex workers.
Often, police do not consistently enforce prostitution laws except against the
most visible sex workers; these are typically street sex workers who are dispro-
portionately low-income individuals, women of color, transgender people, and
immigrants.
8
See Meredith Dank, Jennifer Yahner, Lilly Yu, Kate Mogulescu, & Katie Beth White,
Consequences of Policing Prostitution, URB. INST. JUST. POL’Y CTR. (Apr. 2017), https://perma.cc/
Street sex workers are among the most vulnerable in the industry to
1. “Sex work” is preferable to the term “prostitution,” which “both describes and condemns.” Sylvia
A. Law, Commercial Sex: Beyond Decriminalization, 73 S. CAL. L. REV. 523, 525 (2000) (“The primary
meaning of the word [prostitute] has a sexual connotation, historically describing women who offer
sexual services on an indiscriminate basis, whether or not for money, and more recently, the offer of sex
for money .. . . Further, the term ‘prostitute’ conflates work and identity. Women who sell sex for money
typically have other identities, that is, daughter, mother, athlete, musician, et cetera.”) (internal citations
omitted). Throughout this Article, when referring to individual actors, the term “sex worker” will be
used except where “prostitute” is required for legal or historical accuracy. “Prostitution” and “sex work”
will refer to the exchange of sexual acts for pay, as opposed to the “sex work industry,” which refers to a
broad range of sexual services including pornography and phone and internet sex.
2. See generally SEX FOR SALE: PROSTITUTION, PORNOGRAPHY, AND THE SEX INDUSTRY (Ronald
Weitzer, ed., 2d ed. 2010) (providing an overview of the sex work industry including chapters dedicated
to pornography, stripping, strip clubs, telephone sex work, legal prostitution, customers of prostitutes,
sex tourism, and sex trafficking).
3. Timothy J. Gilfoyle, Prostitution, in THE READER’S COMPANION TO AMERICAN HISTORY 875, 875–
77 (Eric Foner & John A. Garraty eds., 1991).
4.
5.
6. SEX FOR SALE, supra note 2, at 2.
7. See Stewart Cunningham, Teela Sanders, Jane Scoular, Rosie Campbell, Jane Pitcher, Kathleen
Hill, Matt Valentine-Chase, Camille Melissa, Yigit Aydin, & Rebecca Hamer, Behind the Screen:
Commercial Sex, Digital Spaces and Working Online, 53 TECH. IN SOC’Y 47, 47 (2018).
8.
1054 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 26:1053
