The criminalisation of prostitution takes various forms: some offences target sex-workers (e.g. for soliciting), others are aimed at third-parties (e.g. pimps or advertisers), while some jurisdictions follow Sweden in criminalising clients for consumption. In this paper, I argue that existing theories cannot justify offences specific to prostitution. To support this position, I propose my ‘continuum’ argument, placing on a continuum different scenarios in which some consideration, either monetary or in-kind, was necessary for the sexual relations to take place—from street prostitution to marriage that is solely based on financial interests. The former is a paradigmatic manifestation of prostitution, to which prostitution-specific offences are meant to apply, while criminalisation of the latter seems unjustified. I examine various variables found in prostitution but absent from the other scenarios on the continuum (henceforth ‘the other scenarios’) and claim that their absence does not impinge on the normative flaw that existing theories attribute to prostitution. Consequently, even if existing theories can justify the criminalisation of prostitution, they cannot justify prostitution-specific offences because the same justification would over-inclusively apply to forms of sexual relations whose criminalisation is commonly regarded as unjustified.
Amit is Senior Lecturer (with tenure) at the The Buchmann Faculty of Law, Tel Aviv University. He teaches Criminal Law, Evidence Law, and a Sexual Offences Seminar.