Vice Squad
Saturday, March 26, 2005
The Criminalisation of Prostitution -- Categorical?

We are led from Crim Law to FindLaw to uncover this article on why prostitution is illegal. I hope that it is not too much of a simplification to say that the author suggests that prostitution is illegal because we want to sharpen the distinction between commercial sexual exchanges and marital relations. I don't find the suggestion especially compelling, in part because prostitution has quite often been legal, and is so now in many places, nor do I think that where prostitution is legal people tend to see marital relations in a more commercial light. But I note the article mainly to comment on one sentence: "Though prostitution is currently legal in Nevada, every other state categorically prohibits it, and the Supreme Court rarely invalidates such widely shared criminal prohibitions." I wouldn't characterize prostitution as legal in Nevada. Rather, the state allows low-population counties to permit legal brothels -- and not other forms of prostitution -- if the county so chooses. Nor would I say that "every other state categorically prohibits" prostitution. Here's an excerpt from the paperback edition (1998) of A Guide to America's Sex Laws, by Posner and Silbaugh, pages 155-6: "Some statutes criminalize either the solicitation by a prostitute or the tenancy of the prostitute in a house of prostitution, rather than the act of prostitution itself. This removes from the scope of criminal prohibition any exchanges transacted entirely in private...." Vice Squad has noted in the past how some forms of prostitution seem to fall outside the ambit of existing state laws.

Slightly off-topic, I have long been mystified by the word "categorical". tells me that it means "unqualified" or "unconditional". Fine. My problem is that I often hear the word (not in!) "uncategorical" used in the same way, as in the last sentence here. Is to deny something categorically the same thing as denying something uncategorically?


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