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What Counts as Prostitution?

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Abstract

What counts, or should count, as prostitution? In the criminal law today, prostitution is understood to involve the provision of sexual services in exchange for money or other benefits. But what exactly is a ‘sexual service’? And what exactly is the nature of the required ‘exchange’? The key to answering these questions is to recognize that how we choose to define prostitution will inevitably depend on why we believe one or more aspects of prostitution are wrong or harmful, or should be criminalized or otherwise deterred, in the first place. These judgements, in turn, will often depend on an assessment of the contested empirical evidence on which they rest. This article describes a variety of real-world contexts in which the ‘what counts as prostitution’ question has arisen, surveys a range of leading rationales for deterring prostitution, and demonstrates how the answer to the definition question depends on the answer to the normative question. The article concludes with some preliminary thoughts on how analogous questions about what should count as sexual conduct arise in the context of consensual offences such as adultery and incest, as well as non-consensual offences such as sexual assault.
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Bergen Journal of Criminal Law and Criminal Justice • Volume 4, Issue 1, 2016, pp. 65-101
What Counts as Prostitution?
STUART P. GREEN* 1
1. Introduction
What counts, or should count, as prostitution? In the criminal law today, prostitution is
understood to involve the provision of sexual services in exchange for money or other
benets. But what exactly is a ‘sexual service’? Is it prostitution to receive a fee in return
for sexual conduct that does not involve penetration or other touching of the genitals
(such as lap dancing)? Is it prostitution if there is no physical contact at all between the
seller and another person (as when the buyer pays to watch the seller strip or mastur-
bate), or if the only physical contact is between the seller and a third party (as when the
buyer pays others to perform in a sex show or the lming of a pornographic movie)? And
what exactly is the nature of the required ‘exchange’? Is it prostitution if, in return for sex,
a person gives money to his spouse or other steady sexual partner? Is it prostitution if sex
is provided in return for money in the context of a ‘therapeutic’ relationship? Would it
be prostitution if a person agreed to exchange sex in return for non-propertised benets
such as a job promotion or political favour? Would it be prostitution if a person accepted
money as ‘thanks’ for having sex, or for her incidental ‘expenses’, rather than pursuant to
a quid pro quo agreement?
Despite the enormous literature that exists on the law and morality of prostitution,
there has been hardly any attention paid to basic denitional questions of this sort. Even
* Distinguished Professor of Law, Rutgers University; Leverhulme Visiting Professor of Law,
London School of Economics (2016-17). anks to Andrew Ashworth, Sherry Colb, Jeremy
Horder, Niki Lacey, Peter de Marnee, and an anonymous reviewer for this journal for reading
and commenting on an earlier dra. anks also to the attendees at a workshop at the Israel
Institute for Advanced Studies, Hebrew University of Jerusalem, for their helpful questions and
comments. is article is part of a larger, book-length project tentatively titled Criminalizing Sex:
A Unied eory.
66
Stuart P. Green
otherwise philosophically sophisticated commentators seem content with a ‘know-it-
when-they-see-it’ approach.1 And the few courts that have considered one or another of
these denitional questions have proceeded on an ad hoc basis, referring only to local
law, and without any attempt at systematization.2
Deciding what should count as prostitution is not likely to be easy. e concept of
prostitution is deeply embedded within complex cultural, moral, and legal constructs,
all highly contested. Indeed, there is probably no type of sexual oence the moral and
legal status of which has generated broader disagreement among scholars and legislatures
alike. ere is controversy even about the term ‘prostitution’ itself.3
Notwithstanding such obstacles, I believe that the denitional project is one worth
pursuing. e key is to recognize that how we choose to dene prostitution will
inevitably depend on why we believe one or more aspects of prostitution are wrong or
harmful, or should be criminalized or otherwise deterred, in the rst place. ese judge-
ments, in turn, will oen depend on an assessment of the contested empirical evidence
on which they rest.
e analysis that follows consists of four basic steps: I begin with some initial thoughts
on what ‘prostitution’ means in ordinary language and culture. Second (and this is really
the heart of the paper), I consider how the ‘what counts as prostitution’ question has aris-
en in a variety of real-world contexts, paying particular attention to two sub-issues: what
counts as ‘sexual activity’, and what counts as an ‘exchange for property’. ird, I briey
describe (without adjudicating among) ve leading rationales that have been oered to
explain why prostitution is wrong or should be deterred or discouraged. I seek to show
how our answer to these normative questions will ultimately determine our answer to the
denitional one. Finally, I oer some preliminary thoughts on how analogous questions
about what should count as sexual conduct arise in the context of consensual oences
such as adultery and incest, and non-consensual oences such as sexual assault.
2. Prostitution’ in Ordinary Language
Before we consider what ‘prostitution’ means in law, it will be useful to consider what it
means in ordinary language. In current usage, ‘prostitution’ is understood to refer to the
1 See, e.g., Ericsson, Charges Against Prostitution: An Attempt at a Philosophical Argument, 90
Ethics (1980), p. 335, at 348 (‘In this essay, I have deliberately desisted from trying to dene
“prostitution. I have simply relied upon the fact that we seem to know pretty well what we mean
by this term.’).
2 Several of these cases are briey considered in an annually revised student survey published by
Georgetown Law School. See Prostitution and Sex Work, 16 Georgetown J. of Gender and the
Law, eds. Augustson and George (2015), p. 229, at 233-236.
3 See text accompanying note 7 below.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
67
practice of providing sexual services for payment; and ‘prostitute’ refers to the person
who oers or agrees to sell such services.4 At its heart, then, prostitution seems to involve
a commercial transaction.
Historically, however, the term ‘prostitute’ was oen used to refer not only to those
who oered sex for money, but also to those (especially women) who oered sex on an
‘indiscriminate’ basis, whether or not they were being paid. 5 And it is this sense of in-
discriminate sex that also shades into a highly pejorative, largely metaphorical, and less
gender-specic sense of the term—namely, that one who ‘prostitutes’ oneself is a ‘sell out’,
putting her talents and energies to an unworthy or corrupt use for personal gain.6
In addition to people who ‘prostitute themselves’, we can also talk about people who
‘are prostituted’. is sense clearly includes sex workers who are coerced into selling sex
by a sex tracker or pimp. But it might also refer, again in a metaphorical sense, to per-
sons who are coerced by others, say, to support a cause they nd morally abhorrent.
When A ‘is prostituted,’ the person who has done this to her bears the responsibility for
whatever harms are done to A or to third parties. By contrast, when A prostitutes herself,
she is ostensibly responsible for what harm she causes (whether to herself or others).
Many commentators have been concerned about the fact that the terms ‘prostitution
and ‘prostitute’ not only describe, but also oen denounce.7 To call someone a ‘prostitute’
can be highly derogatory. Even as a purely descriptive term, ‘prostitution’ is problemat-
ic, since it seems to apply exclusively to the practice of selling sex. at is, we would not
ordinarily say that a person who buys sex was a prostitute, or even that he was engaged
in prostitution. From a criminal law perspective, prostitution is better understood as a
transaction that involves both a seller and a buyer.
The most commonly offered alternatives to ‘prostitute’ and ‘prostitution’ are
‘sex worker’ and ‘sex work’ (or ‘commercial sex’, as the proposed Model Penal Code
4 ‘Prostitution,’ in Oxford English Dictionary, http://www.oxforddictionaries.com/us/denition/
american_english/prostitution
5 e etymology here is suggestive. e term ‘prostitution’ is derived from the Latin prostituere,
which means ‘to expose publicly.’ e notion of ‘sex for hire’ is therefore not inherent in the
etymology, which rather suggests sex that is ‘publicly’ or perhaps ‘indiscriminately’ oered.
Online Etymology Dictionary, http://www.etymonline.com/index.php?term=prostitute. e idea
of prostitution involving indiscriminate sex persisted in U.S. law until fairly recently. For example,
at the time the original Model Penal Code was promulgated, sixteen states dened prostitution
to include non-commercial promiscuous sex. Model Penal Code §207.12, Commentary at 175,
note 24 (Tent. Dra No. 9, 1959).
6 To prostitute oneself in this gurative sense need not even involve sex: for example, an artist
can prostitute herself by making bad, but commercially-successful, art. Nor need the reward be
nancial: A politician can prostitute herself by compromising her principles for the purpose of
winning an election or appointment to high oce.
7 See, e.g., Law, Commercial Sex: Beyond Decriminalization, 73 Southern California L. Rev. (2000),
p. 523, at 525.
68
Stuart P. Green
provision would have it).8 For purposes of the present project, however, the terms ‘sex
work’ and ‘sex worker’ are both too narrow and too broad. ey are too narrow because,
like the term ‘prostitution,’ they apply only to the supply, rather than the demand, side
of the transaction. And they are too broad because they would seem to apply not only to
prostitution in the traditional sense of the term, but also to more remote activities such as
pimping and running a brothel, dancing in a strip club, acting in a pornographic movie,
working for a telephone sex service, or advertising sexual services. To group all of them
together would, if nothing else, pose a problem for the principle of fair labeling.9
Rather than refer to ‘prostitutionor ‘sex work, I think we would do better to talk
about ‘selling sex’ and ‘buying sex’. But even these terms do not oer a perfect solution,
since they suer from at least some of the same ambiguity as ‘sex work’ itself. As we
shall see below, whether the people who work for, or patronise, a strip club or phone sex
service can be said to be selling or buying sex ultimately depends on what we mean by
‘sex’ and what we mean by ‘buying.
3. Prostitution Dened in Law
Having considered how ‘prostitution’ is used in ordinary language, we now turn to the
main subject of the inquiry—namely, how it is dened in the law. As we shall see, the
answer to this question has varied considerably from jurisdiction to jurisdiction.
At rst glance, such variety is not surprising. ere is probably no area of substantive
criminal law that reects more variation in how it is formulated. Looking at just the law
of Western, industrialized nations, and only at statutes involving adults, we can identify
at least the following ve basic models:
(1) criminalise the buying and selling of sex, as well as related activities such
as street walking, kerb crawling, pimping, and brothel-keeping (the policy in
most U.S. jurisdictions);
(2) criminalise the buying of sex and other related activities by pimps and
clients, including brothel-keeping, but don’t criminalise the sale of sex or
related activities by sellers (the policy in Sweden, Norway, Iceland, Finland,
Northern Ireland, Canada, and, most recently, France);
8 Model Penal Code § 213.0(2) (September 15, 2015 dra).
9 See generally Ashworth, Principles of Criminal Law (Oxford University Press, 4th ed. 2003), pp.
89–90; Chalmers and Leverick, Fair Labelling in Criminal Law, 71 Modern L. Rev. (2008), p. 217,
at 239; Green, irteen Ways to Steal a Bicycle: e Law in the Information Age (Harvard U.
Press, 2012), pp. 52-54.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
69
(3) criminalise prostitution-related activities such as streetwalking, kerb
crawling, pimping, and brothel-keeping, but don’t criminalise the buying
or selling of sex as such (the policy in England, Wales, and S cotland)
(4) criminalise pimping and brothel-keeping, but don’t criminalise the pur-
chase or sale of sex as such or other activities by sellers (the policy in Den-
mark and Israel); and
(5) don’t criminalise any prostitution-related activities other than track-
ing and forced prostitution, but license, impose age limitations and regulate
matters of health and safety (the policy in Germany, the Netherlands, New
Zealand, and Nevada).10
One might imagine that those jurisdictions that shared a particular approach to crim-
inalisation would also share an approach to dening prostitution, and vice versa. But, as
it turns out, that is not the case at all. In practice, there is little correlation between the
manner in which prostitution is criminalised and how the act itself is dened.
So, how has the basic transaction that constitutes the oense of selling or buying
sex been dened? We can begin by identifying three basic approaches the statutes have
taken. One group of (mostly older) oense provisions makes it a crime simply to ‘be a
prostitute,’ ‘engage in an act of prostitution,’ or (in Iceland11) ‘pay for prostitution’—with-
out any additional explanation of what it means to be such a person or engage in such an
act.12 Dening the oense of prostitution in this way is both circular and vague. It gives
potential oenders, law enforcement, and courts essentially no instruction about which
acts are prohibited. Moreover, it is potentially both under- and overinclusive. It is under-
inclusive in the sense that it might be understood to exclude the buying of sex, as well
as the selling of sexual acts other than intercourse. It is overinclusive in the sense that it
could conceivably be understood to include prostitution in its non-commercial, merely
‘promiscuous’, sense. One would think that so vague and circular an oense denition
would be ripe for constitutional challenge. But, in fact, vagueness and overbreadth chal-
lenges have been almost uniformly unsuccessful in this context.13
10 is summary is adapted from de Marnee, Liberalism and Prostitution (Oxford U. Press 2010),
pp. 28-31.
11 See Iceland Penal Code, Section 206 (2009) (making it a crime to ‘pay . . . or promise . . . to pay
or render consideration of another type, for prostitution, without any additional explanation of
what constitutes the act).
12 is is the approach used by statutes in Arizona, California, Maine, Michigan, Mississippi, and
South Carolina. For a useful compendium of U.S. prostitution statutes, though with very little
analysis, see generally Posner and Silbaugh, A Guide to America’s Sex Laws (U. Chicago Press,
1996), pp. 155-187.
13 See Baldwin, Split at the Root: Prostitution and Feminist Discourses of Law Reform, 5 Yale J.L.
& Feminism (2002), p. 47, at 67 & n.60 (citing representative cases).
70
Stuart P. Green
A more modern approach to dening prostitution is to specify what it is that must
be bought or sold. In a majority of U.S. states,14 as well as in England and Wales,15
Nor way,16 and Sweden,17 this is done by referring to the sale or purchase of ‘sexual ac-
tivity’, ‘sexual services’, or ‘sexual contact’, sometimes with further specication of acts,
but oen without. A few other jurisdictions prohibit the sale or purchase of conduct
that is ‘lewd,’ a notoriously vague term that in this context seems to mean something like
‘tend[ing] to incite sensual desire or imagination.18 Dening prostitution as ‘sexual’ or
‘lewd’ conduct for hire may be a bit better than referring simply to ‘being a prostitute,’ but
it hardly solves the problem of vagueness. By itself, the term gives us almost no direction
on how to decide puzzling cases involving conduct such as oral sex, manual-genital stim-
ulation, lap dancing, or stripping.
e nal means of dening prostitution is to enumerate exactly which sexual acts for
hire are prohibited. While this approach would seem to solve the problem of vagueness
and overbreadth, it nevertheless raises questions of policy. Which acts should be includ-
ed here? It is probably no surprise that every U.S. state that follows the enumeration
approach includes on its list of prohibited acts that of ‘sexual intercourse’.19 But beyond
that, it is striking how little consensus there is. Other specic acts that are listed in one or
more, but by no means all, statutes include fellatio, cunnilingus, anal intercourse, manual
genital touching, sadomasochistic abuse, and agellation.20
4. Dening ‘Sexual Activity’
Having surveyed the various ways in which prostitution is statutorily dened, we now
consider several specic contexts in which questions have arisen, or could arise, about
14 See statutes in Alaska, Arkansas, Connecticut, Delaware, Florida, Hawaii, Iowa, Massachusetts,
Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio,
Oregon, Pennsylvania, South Dakota, Tennessee, Texas. See also Model Penal Code § 2017.12(1)
(referring to ‘sexual activity for hire’). e proposed Dra Model Penal Code Revision of
September 15, 2015, § 213.0(2) refers to ‘any act of sexual penetration or sexual contact.
15 English Sexual Oences Act 2003, Section 51(2) (requiring that oender oer or provide ‘sexual
services to another person in return for payment’).
16 Norwegian General Civil Penal Code, Section 316 (making it a crime to engage in ‘sexual activity
or commit a sexual act with another person for payment’).
17 Swedish Criminal Code (Brottsbalk), Section 6.11 (criminalising ‘purchase of sexual services’).
18 See, e.g., Michigan ex rel. Wayne County Prosecutor v. Dizzy Duck, 535 N.W.2d 178, 183 (Mich.
1995).
19 e Finnish Criminal Code, Chapter 20, Section 8, also makes it a crime to engage, with a victim
of the sex trade, in ‘sexual intercourse’ (though the precision of this provision is somewhat
undercut by the addition of the phrase ‘or a comparable sexual act’).
20 See generally statutes listed in Posner and Silbaugh 1996, pp. 155-197.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
71
what should count as ‘sexual activity’. I group these into three categories: (a) cases
involving non-penetrative sexual contact between the seller and buyer; (b) cases involv-
ing no physical contact at all between the seller and buyer or between the seller and any
third party; and (c) cases involving physical contact, including penetration, between the
seller and a third party, but no physical contact between the seller and buyer.
(a) Cases Involving Non-Penetrative Sexual Contact between Buyer and Seller
Should it be prostitution if A engages in, or agrees to engage in, commercial sexual
activity with B that does not involve penetration (whether vaginal, oral, or anal)? For
example, is it prostitution to engage in ‘lap dancing’, in which a nude or partially nude
dancer has bodily contact with a seated patron in a manner that is meant to be sexually
stimulating? Is it prostitution if A oers to engage in non-penetrative acts of domination
and submission? Is it prostitution if A oers B a ‘happy ending’ massage (involving man-
ual contact with the genitals)?
ose courts that have considered issues of this sort have tended to analyze them,
as no doubt they should, in terms of the language of applicable law. For example, in the
Hawaii case of Keawe, the defendant agreed to perform a lap dance for money. In de-
termining whether such conduct constituted prostitution, the Hawaiian Supreme Court
looked to the language of the relevant statute, which dened (1) ‘prostitution’ as ‘sexual
conduct with another person for a fee’; (2) ‘sexual conduct’ as ‘sexual penetration’ or ‘sex-
ual contact’; and (3) ‘sexual contact’ as ‘any touching . . . of the sexual or other intimate
parts of a person.21 On the basis of this language, the court, properly it seems, concluded
that lap dancing was indeed prostitution.22 e Pennsylvania case of Cohen, involving a
‘happy ending’ massage, was to the same eect.23 Similarly, in the English case of Tan , the
defendant was convicted of living o the earnings of prostitutes where customers were
subjected to humiliation, agellation, bondage, and torture, sometimes accompanied by
masturbation, in return for pay.24
Elsewhere, reliance on statutory language has been less straightforward. For example,
in the New York case of Georgia, the defendant agreed to perform foot licking, spanking,
domination, and submission in exchange for a fee.25 e state’s statute required that the
21 Hawaii Rev. Stat. §712-1200.
22 Hawaii v. Keawe, 108 P.3d 304 (Hawaii 2005).
23 Commonwealth v. Cohen, 538 A.2d 582 (Pa. Super. Ct. 1988) (interpreting Pennsylvania Cons.
Stat. Ann. Title 18, § 5902, which makes it a crime to engage in ‘sexual activity as a business’).
24 R. v. Tan and Others [1983] Q.B. 1053.
25 People v. Georgia, 163 Misc.2d 634 (N.Y. Crim. Ct. 1994).
72
Stuart P. Green
oender engage in ‘sexual conduct’, but did not dene the term any more specically.26
With little explanation, the court held that engaging in sadomasochistic conduct for a
fee did not constitute prostitution under the statute. In dismissing the charges, the court
viewed it as critical that there was no physical contact between the parties involving a
‘person’s clothed or unclothed genitals, buttocks or a woman’s breasts’.27
Cases in which the buyer pays to have contact with the seller’s breasts also raise
issues. Consider, for example, the Minnesota case of Oanes.28 e relevant statute dened
prostitution as ‘engaging or oering or agreeing to engage for hire in sexual penetration
or sexual contact,’ and it dened ‘sexual contact’ as including ‘[t]he intentional touching
by an individual of a prostitute’s intimate parts’.29 (e circularity of requiring that the
defendant touch the ‘prostitutes’ intimate parts need hardly be noted.) e question was
whether a woman’s breasts should be regarded as ‘intimate parts’ within the meaning
of the statute, and the court held that they should. Its reasoning? e court said simply
that, ‘[i]n the United States, women normally cover their breasts when in public and take
oense at a strangers touch’.30
(b) Cases Involving no Physical Contact between Seller and Buyer or any Third
Party
ere is also a range of cases in which the buyer pays the seller to engage in sexual
conduct that involves no physical contact between the seller and anyone else, including
the buyer. e most common context in which this occurs is where the buyer pays to
watch the seller strip or engage in self-masturbation.
I am not aware of any court holding that such conduct constitutes prostitution.
e Australian case of Begley, involving charges of prostitution brought against a
st r ipper, is representative. In dismissing the charge, the court simply asserted, without
any explanation, that ‘there must be some contact between the person oering the use of
the body and the person paying the fee.31
One case that arguably tests the limits of this ‘some contact’ rule is State v. Turn-
paugh. A man (Turnpaugh) oered to pay to watch a woman (Ferguson) masturbate
26 N.Y. Penal Law § 230.00.
27 Georgia, 163 Misc. 2d at 637.
28 State v. Oanes, 543 N.W.2d 658 (Minn. Ct. App. 1996).
29 Minn.Stat. § 609.321, subd. 9 (1994).
30 Oanes, 543 N.W.2d at 661. An analogous issue—whether public exposure of the female breast
should be regarded as ‘indecent’—is discussed in Green, Reconstructing the Law of Voyeurism
and Exhibitionism (manuscript).
31 Begley v Police (1995) 78 A Crim R 417, 429 (Lander, J.).
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
73
herself.32 e Wisconsin statute dened prostitution to include not just sexual intercourse
and oral sex but also ‘[m]asturbat[ing] a person or oer[ing] to masturbate a person or
request[ing] to be masturbated by a person for anything of value’.33 In the actual case, the
person prosecuted was Turnpaugh (Ferguson, it turns out, was an undercover cop). Be-
cause none of these acts were be done to Turnpaugh, he escaped liability. But imagine that
it was Ferguson who had been prosecuted instead. Since she did in fact oer to mastur-
bate ‘a person’—namely, herself—the statute arguably would have been satised, and she
would have been liable. e Wisconsin statute thus presents a curious asymmetry which
may or may not have been intended by the state legislature.
(c) Cases involving physical contact between seller and a third party
Perhaps the most puzzling cases concerning what should constitute ‘sexual activity’ for
purposes of prostitution law are those in which the seller has sexual contact with some-
one other than the buyer. ere are, essentially, two varieties here: cases in which the
buyer pays for the seller to engage in sex with a third party for the third party’s gratica-
tion (essentially, the buyer gives a gi to the third party); and those in which the buyer
pays the seller to watch the seller engage in sex with a third party for the buyer’s grati-
cation.
e rst type is illustrated by a rather salacious anecdote from a biography of the
businessman Richard Branson, which reports that his rst sexual experience was with a
prostitute paid for by his father (apparently, a not uncommon practice among the English
upper classes at the time).34 One can also imagine a case in which an employer or patron
buys sexual services as a kind of gratuity for his employee or client, as the case may
be. For example, in 2012, various gossip websites alleged that New Jersey Senator Bob
Menendez, while on vacation in the Dominican Republic, received sexual services (from
underage prostitutes, no less) paid for by a wealthy donor named Salomon Melgen.35
Is there an argument for exempting from liability the person who has the sex, or
the person who pays the bill, in such cases? (To be clear, such cases would not qualify
as ‘pimping’ in most jurisdictions, since the alleged buyer of sex—whether it was the
32 State v. Turnpaugh, 741 N.W.2d 488 (Wis. Ct. App. 2007).
33 Wis. Rev. Stat. § 944.30(d).
34 Moore, Review of Beyond the Mask by Tom Bower, in e Guardian (Feb. 12, 2014), http://www.
theguardian.com/books/2014/feb/12/branson-behind-mask-tom-bower-review
35 Bob Menendez,Wikipedia, https://en.wikipedia.org/wiki/Bob_Menendez. Although the
prostitution charges were never substantiated, Menendez was later indicted for accepting more
than one million dollars in other gis and campaign contributions from Melgen.
74
Stuart P. Green
elder Branson or Dr. Melgen—was not directly proting from the agreement.36) A typ-
ical U.S. prostitution statute provides that it is a crime to ‘engage in sexual conduct for
a fe e’. 37*Would the statute be satised if A had sex with B when Bs fee was paid for by a
third party, C? ere would be no problem in imposing liability on B, since she would
have provided ‘sex for a fee.’ With respect to A and C, however, the issue is more com-
plicated. A had sex, but arguably not ‘for a fee’; and C paid a fee, but did not have sex.
So perhaps an argument could be made that such transactions would be exempt from
prosecution.38 e problem, of course, is that such a loophole would create an incentive
for parties to engage in ‘straw man’ transactions. Presumably to avoid such confusion,
a few modern statutes now address the issue explicitly. For example, under the Finnish
statute, it is a crime to have sex with a victim of the sex trade even when ‘remuneration
[is] . . . promised or given by a third person.39 Similarly, Swedish law says that a person
is guilty of purchasing sexual services even when the ‘payment was promised or given by
another person.40
e second sort of case involving sex with a third party is even more puzzling. Con-
sider Taylor v. Arizona.41 e defendants worked at a sex club where they were paid to
have sex with each other while their customers sat on the other side of a glass pane and
watched. In upholding the conviction, the court reasoned that while the statute did
‘require a sexual contact between at least two people,’ it did not necessarily require con-
tact ‘between the prostitute and the customer’.42
Other jurisdictions have followed a dierent approach. e California case of Wooten
v. Superior Court involved essentially the same facts as Taylo r.43 is time, though, it was
the managers of the club who were prosecuted for pimping and pandering, and the court
held that no crime had been committed. Although the California statute did not specify
36 For example, under section 52 of the English Sexual Oences Act 2003, it is a crime for an
oender to cause or incite another person to be a prostitute if he ‘does so for or in the expectation
of gain for himself or a third person’ (typically by taking a cut of the prostitute’s earnings). is is
not the scenario I have in mind. In the scenario I have in mind, A causes B to give sexual services
to C without any expectation of monetary gain: A is just giving a ‘gi’ to C.
37 E.g. Hawaii Rev. Stat. §712-1200.
38 Alternatively, it might be possible to ‘split’ the actus reus between A and C, and charge both
under a theory of accomplice liability.
39 Finland Criminal Code, Chapter 20, Section 8.
40 Sweden Criminal Code, Ch. 6, § 11.
41 State v. Taylor, 167 Ariz. 429 (1990).
42 Id. at 430. e Arizona law dened ‘prostitution’ as ‘engaging in or agreeing or oering to engage
in sexual conduct with another person under a fee arrangement with that person or any other
person. Ariz. Rev. Stat. § 13-3211(5) (emphasis added).
43 Wooten v. Superior Court, 113 Cal.Rptr.2d 195 (Cal. Ct. App. 2001).
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
75
that there had to be physical contact between the sex seller and buyer, the court, relying
on the principle of lenity, held that this was the better interpretation.44
e idea that prostitution must involve physical contact between a buyer and seller
holds important implications for the multi-billion-dollar pornography industry. Much
pornography depicts sexual acts involving two or more actors who are paid by a producer
who is not himself engaged in such acts. e question thus arises whether the producer
of such lms could be prosecuted for prostitution or related charges.
In the leading case, People v. Freeman, the California Supreme Court said no.45 Free-
man was a lm producer who paid several actors to perform various sexual acts in front
of a camera. He was prosecuted for ‘pandering, which under the California Criminal
Code consists of ‘procur[ing] another person for the purpose of prostitution.46 In over-
turning his conviction, the court relied on three basic arguments: First, it said, there
was ‘no evidence that defendant paid the acting fees for the purpose of sexual arousal or
gratication, his own or the actors.47 Second, it claimed, ‘[f]or a “lewd” or “dissolute” act
to constitute “prostitution, the genitals, buttocks, or female breast, of either the prosti-
tute or the customer must come in contact with some part of the body of the other’, and
that did not happen here.48 Finally, the court said, even if the defendants conduct did fall
within the literal denition of prostitution, ‘the application of the pandering statute to
the hiring of actors to perform in the production of a nonobscene motion picture would
impinge unconstitutionally upon First Amendment values.49
All three statements are problematic: With respect to the rst, it does not require
much imagination to realise that, even if Freeman was not sexually aroused or gratied
by the actors’ conduct, the actors themselves probably were. e second statement sug-
gests that liability for prostitution could be avoided whenever the prostitute’s fee was paid
for by a third party who was not himself engaged in sex, the very same loophole present-
ed by cases like those involving Bransons father and Menendez’s patron. Finally, as to
the free speech argument, it is odd to think that an otherwise illegal act should become
lawful simply because it was performed in front of a camera. Could one avoid liability for
44 Cal. Penal Code § 647 dened ‘prostitution’ to include ‘any lewd act between persons for money
or other consideration.
45 People v. Freeman, 758 P.2d 1128 (Cal. 1988).
46 Cal. Penal Code § 266i.
47 Freeman, 758 P.2d at 1130.
48 Id. at 1131.
49 Id. For a similar result, see State v. Washington-Davis, 867 N.W.2d 222 (Minn. Ct. App. 2015).
e only case I am aware of that reaches a contrary decision is People v. Kovner, 409 N.Y.S.2d 349
(N.Y. Sup. Ct., 1978).
76
Stuart P. Green
prostitution by lming oneself having sex for money? And why would the same reasoning
not apply to a murder or rape that was captured on lm?50
5. Exchange for Value
In the paradigmatic case of prostitution, the seller of sex oers her services to
essentially anyone who can pay her fee, in cash. In this section, we consider a variety of
cases that do not t this paradigm. We begin by examining (a) the quid pro quo nature of
exchange.’ We then turn to cases in which sex is exchanged for: (b) something other than
money, such as economically valuable goods or services; (c) non-propertised things of
value, such as a promotion at work; (d) money or other property within the context of a
monogamous or relatively exclusive relationship; and (e) money or other property within
the context of a ‘therapeutic’ relationship.
(a) Quid Pro Quo Requirement
One of the most basic requirements that denes the oense of prostitution is that sex be
exchanged for money or other property. In practice, this means that receiving or giving
something of value merely as ‘thanks’ for, or incident to, a sexual act, would not constitute
prostitution. Rather, the transaction of sex for money must constitute a quid pro quo.
As such, prostitution is analogous to bribery, which requires that something of value be
given ‘in exchange for’ an ocial act.51
A good illustration of what this quid pro quo requirement means in practice can be
seen in the the Hawaii case of Xiao.52 e defendant, Xiao, met Wagner, an undercover
cop, at a nightclub in Honolulu. Wagner bought her several drinks, aer which she ‘slow
danced’ with him (i.e., rubbed her body against his body and groin area). Prosecuted for
50 For further commentary, pro and con, on treating pornography as prostitution, see Colb, e
Legal Line between Porn and Prostitution, CNN.Com (Aug. 12, 20015), http://edition.cnn.
com/2005/LAW/08/12/colb.pornography/; Kaye, Why Pornography is Not Prostitution: Folk
eories of Sexuality in the Law of Vice, 60 St. Louis U. L.J. 243 (2016); Waltman, e Ideological
Obstacle: Charging Pornographers for Sexual Exploitation (2012), Midwest Political Science
Association Conference, Chicago IL, April 11-15, 2012. Available at SSRN: http://ssrn.com/
abstract=2050290
51 See 18 U.S.C. C. § 201(b). Giving or receiving something of value as ‘thanks’ for an ocial
act constitutes the lesser oense of giving or receiving a gratuity, see 18 U.S.C. § 201(c), but
there is no analogous oence in the context of prostitution. For discussion of the quid pro quo
requirement in bribery, see Green, Whats Wrong with Bribery, in Du and Green, Dening
Crimes: Essays on the Criminal Law’s Special Part (Oxford U. Press, 2005), at pp. 143, 148-151.
52 State v. Jing Hua Xiao, 231 P.3d 968 (Hawaii 2010).
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
77
selling sex, Xiao argued that there was no evidence that the drinks constituted a ‘fee’ and
that any any sexual conduct that occurred between her and Wagner was ‘merely gratu-
itous. Perhaps surprisingly, given that the drinks cost forty dollars each, the Hawaii Su-
preme Court agreed with Xiaos contention. Even though there was nothing, in principle,
to prevent the purchase of a drink from constituting the payment of a ‘fee’, the court said,
the prosecution had failed to present sucient evidence that Xiao had agreed to provide
sex in return for the drinks.
(b) Cases in which Sex is Exchanged for Economic Goods other than Money
While all prostitution statutes require that sex be exchanged for something of value, they
vary considerably in precisely how the thing of value is dened. Among U.S. statutes,
prostitution is dened as sex ‘for hire,53 for a ‘fee’,54 ‘as a business,55 that is ‘purchased’,56 or
that is exchanged for ‘money’,57money or its equivalent’,58* ‘money or other property’,59
‘money, property, or services’,60 or ‘anything of value.61 Meanwhile, Icelandic law makes it
a crime to pay or render ‘consideration’ in return for sex,62 while English and Norwegian
law speak in terms of making or promising ‘payment’.63
Where the exchange is dened in broad terms, prostitution will be found to have been
committed even in cases that do not reect the traditional sex-for-cash paradigm. For ex-
ample, under Indiana law, ‘prostitution’ is dened as ‘sexual intercourse or deviate sexual
conduct in return for money or other property,’ and ‘property’ is dened to include ‘real
property, personal property, money, labor, and services.64 With such a broad denition,
it is no surprise that in the case of Edwards, the defendant was held liable for agreeing
to provide sexual services in return for a ‘ride across town’ in her prospective custom-
er’s car.65 Similarly, under English law, which denes the term ‘payment’ to include ‘any
53 Florida Stat. Ann. 796.07.
54 Alaska Stat. 11.66.100; Arkansas Code 5-70-102.
55 Pennsylvania Cons. Stat. Ann. § 5902.
56 Iowa Code Ann. 725.1
57 Georgia Code Ann. 16-6-9.
58 Virginia Code Ann. § 18.2-346.
59 Indiana Code Ann. 35-45-4-2.
60 Dra Model Penal Code Revision of September 15, 2015, § 213.0(2).
61 Colo. Rev. Stat. 18-7-201; Illinois Stat. ch.720, para. 5/11-14.
62 Iceland Penal Code Section 206.
63 Sexual Oences Act 2003, s. 51(2); Norwegian Penal Code Section 316.
64 Indiana Code Section 35–41–1–23.
65 Edwards v. State, 803 N.E.2d 1249 (Indiana Ct. App. 2004),
78
Stuart P. Green
nancial advantage, including the discharge of an obligation to pay’,66 one would expect a
court to nd prostitution in a case in which a ‘single mother . . . [has] sex with her land-
lord in place of rent’.67
By contrast, where the statutory language is narrow, a dierent result is to be
expected. For example, in the Illinois case of Johnson, the defendant contended that the
prostitution statute was unconstitutionally vague because it would ‘make a “prostitute” of
a woman who oers, performs or agrees to perform sexual acts in overt or tacit exchange
for an expensive dinner or a concert, an exchange the defendant contends is part of an
unwritten social code.68 In rejecting this vagueness argument, the court stated that the
committee which draed the statute specically limited its language to apply only to sex
acts performed for “money,” instead of for “any valuable consideration. us, ‘an oer or
agreement to receive money, rather than, for example, a fur coat or a night at the opera
. . . is essential to a prostitution conviction. To construe the statute otherwise, the court
said, would have the untoward eect of interfering with what it called ‘ordinary social
situations, and ‘discourag[ing] exchanges of sexual acts as a part of social companionship
or for gis of material goods.69 Presumably, this strict sex-for-cash approach would also
have the even more perverse eect of excluding a wide range of transactions in which
sex is exchanged for drugs, cases that pose some of the most serious public health risks
associated with commercialised sex.70
(c) Sex in Return for Non-Propertised Goods
All of the cases we have considered so far have involved the exchange of sex for prop-
erty of some sort—whether money, services, or goods. We now turn to cases involving
the exchange of sex for things not easily propertised, such as political favours or job
promotions. While there is essentially no case law directly considering whether conduct
of this sort should count as prostitution, the question is nevertheless worth posing.
66 Sexual Oences Act 2003, s. 51(2).
67 See Miller, Sugar Dating: A New Take on an Old Issue, 20 Bualo J. Gender, Law & Social Policy
(2010), pp. 33, 40.
68 People v. Johnson, 376 N.E.2d 381, 385 (Ill. Ct. Ap. 1978) (interpreting Ill.Rev.Stat.1965, chap. 38,
sec. 11-15).
69 Id. (citations omitted). e Illinois statute was subsequently broadened to refer to sex exchanged
for ‘anything of value.
70 See Miller, Prostitution, in e Oxford Handbook of Crime and Public Policy, ed. Tonry (Oxford
U. Press, 2011), pp. 547-577.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
79
Consider, for a start, the facts of Tunnel, a case from the U.S. Fih Circuit.71 Tunnel
owned the Pines Motel in Kilgore, Texas, which he eectively ran as a brothel. Russell
was the local justice of the peace. Tunnel oered Russell sexual services in return for
Russell’s ‘looking the other way’ while criminal acts were being performed ‘on his watch.
In the actual case, Tunnel was convicted of oering Russell a bribe. In rejecting Tunnel’s
argument that bribery under Texas law required ‘pecuniary gain,’ the court said it was
sucient that Russell had received the ‘benet’ of sexual favours.72
Now imagine that, rather than being prosecuted for receiving or giving a bribe,
Russell or Tunnel were prosecuted for prostitution. Although there do not appear to
be any such cases on the books, it is worth asking whether sex given in exchange for a
non-propertised ‘benet’ of this sort should fall within the realm of prostitution law. In
terms of most of the rationales for criminalising prostitution that we’ll discuss below—
protecting religious values, preventing commodication of sex and the objectication
of women, protecting the health of sex workers and the public, and preventing violence
against and exploitation of women—it is hard to see why the result should be any dier-
ent from a conventional case involving sex for money.
(d) Exchanges Involving Sex with Spouses and Other ‘Exclusive’ Sexual Partners
In the Tunnel case, Russell was just one of many ‘customers’ receiving sex from the wom-
en who worked at the Pines Motel. Would it have made any dierence if the relationship
between the ‘buyer’ and ‘seller’ had been more exclusive? In this section, we consider ca-
ses in which sex is exchanged for money or other property within spousal relationships,
between so-called ‘sugar daddies’ and ‘sugar babies,’ and in so-called ‘oce romances.
Let us look rst at spouses. As Martha Nussbaum and others have recognised, mar-
riage and sex have always had an economic element:
[M]ost cultures contain a continuum of relations between women and men (or
between same-sex pairs) that have a commercial aspect—ranging from the admit-
ted case of prostitution to cases of marriage for money, going on an expensive date
where it is evident that sexual favors are expected at the other end, and so forth. In
most cultures, marriage itself has a prominent commercial aspect: the prominence
of dowry murder in contemporary Indian culture, for example, testies to the degree
to which a woman is valued, above all, for the nancial benets one can extract from
her family.73
71 See, e.g, United States v. Tunnell, 667 F.2d 1182 (5th Cir. 1982).
72 Id. at 1186.
73 Nussbaum, ‘Whether from Reason or Prejudice’: Taking Money for Bodily Services, 27 Legal
Studies (1998), pp. 693, 700.
80
Stuart P. Green
Indeed, Igor Primoratz has gone so far as to assert that ‘there is no morally signicant
dierence between the common prostitute and the spouse in what used to be called a
marriage of convenience’.74 is kind of marriage, Primoratz quotes Engels as saying,
‘turns oen enough into the crassest prostitution—sometimes of both partners, but far
more commonly of the woman, who only diers from the ordinary courtesan in that she
does not let out her body on piecework as a wage worker, but sells it once and for all into
slavery’.75
Whatever one thinks of Engels’ characterization of marriage as slavery, the fact
remains that, even in our contemporary world, the line between sex ‘for love’ (or pleasure,
procreation, or spousal duty) and sex ‘for money’ is not always a bright one. As Roy Bau-
meister and Kathleen Vohs have argued, female sexuality can be understood as a valuable
resource. Because male sexuality is said to be less valuable in comparison, heterosexual
intercourse is not an equal exchange. ‘To make the exchange equal,’ they say, ‘the man
must give [the woman] something else in return.76 And the thing given sometimes takes
the form of valuable property.77 Indeed, a large empirical study of American couples by
Philip Blumstein and Pepper Schwartz found that ‘nancial considerations inuenced
sexual behavior. In particular, women who lacked their own independent means of -
nancial support . . . felt less able or less willing to refuse their husbands’ sexual advances,
as compared to other women.78
74 Primoratz, Whats Wrong with Prostitution?, 68 Philosophy (1993), pp. 159, 160.
75 Id. (quoting Engels, e Origin of the Family, Private Property and the State (trans. A. West)
(Penguin, 1985), p. 102).
76 Baumeister and Vohs, Sexual Economics: Sex as a Female Resource for Social Exchange in
Heterosexual Transactions, 8 Personality and Social Psychology Review (2004), p. 339.
77 In Mozambique, according to one source, husbands are expected to give their wives gis of
money in return for sex. Arnfred, Sexuality & Gender Politics in Mozambique: Rethinking Gender
in Africa (James Currey Publishers, 2011), p. 194.
78 Baumeister and Vohs 2004, p. 348 (citing Blumstein, American Couples: Money, Work, Sex
(William Morrow, 1983)). ough it should be noted that the sex-as-economic-transaction
theory probably has less salience in the context of marriage than elsewhere because, as Baumeister
and Vohs put it, ‘commitment has already been made, because material property is jointly owned
and therefore not available for exchange, and because the marital contract regarding sex removes
the couple from the competitive marketplace. Id at 359.
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81
Presumably anticipating such cases, several American jurisdictions have expressly
dened prostitution to exclude ‘marital intercourse79 or sexual acts with ones ‘spouse’.80
But the question remains whether it makes sense to do so.
Until approximately thirty years ago, rape within marriage was widely exempt from
prosecution as well. Defenders of such laws argued, among other things, that they were
necessary to prevent governmental intrusion into matters of marital privacy.81 Such ar-
guments have mostly been rejected, and the marital rape exemption has largely been
repealed. Should that development have any bearing on what we might call the ‘mar-
ital prostitution exemption’? As we’ll see below, it depends on what the purpose of
prostitution law is in the rst place. Assuming, for the moment, that it is mainly meant
to protect women from being coerced or exploited into having sex they do not wish to
have, and given that such coercion and exploitation can undoubtedly occur within the
marital relationship, there is at least a prima facie argument for doing away with such an
exemption, at least on the ‘buyer’s’ side.
Even if the marital prostitution exemption were to be maintained, however, we would
still need to contend with cases involving non-marital monogamous or semi-monog-
amous relationships. Consider, rst, cases in which so-called ‘sugar babies’ agree with
their ‘sugar daddies’ to exchange companionship and sexual favours for college tuition,
living expenses, clothing, jewelry, or other valuable property.82 Should such exchanges be
regarded as prostitution?
I would argue that what distinguishes relationships like these from those in more
conventional cases of prostitution is that they are essentially ‘exclusive in character.
Prostitution has oen been described, in both statutory and case law, as involving not
just sex for money, but sex for money that is ‘indiscriminate, ‘promiscuous, or (in the
79 E.g. Wisconsin Rev. Stat. § 944.30(1m)(a).
80 E.g. Colorado Rev. Stat. § 18-7-201(1). Hawaii Rev. Stat. §712-1200 (dening ‘sexual contact’ as
‘any touching . . . of the sexual or other intimate parts of a person not married to the actor’).
81 See, e.g, People v. Liberta, 474 N.E.2d 567, 574 (N.Y. Ct. App. 1984) (considering and rejecting
this argument).
82 See generally Motyl, Note, Trading Sex for College Tuition: How Sugar Daddy ‘Dating’ Sites May
be Sugar Coating Prostitution, 117 Penn State L. Rev. (2013), pp. 927, 929; see also Miller 2010.
To cite one particularly notable case, Donald Sterling, the 80-something former owner of the
Los Angeles Clippers basketball team, reportedly gave his 30-something mistress, V. Stiviano,
more than $3.6 million in gis, including a duplex apartment, a Ferrari, two Bentleys, a Range
Rover, jewelry, luggage, and designer clothes. See Lindsey Bever, Donald Sterling’s Estranged
Wife Wins Back Millions He Lavished on V. Stiviano, Washington Post (April 15, 2015), http://
www.washingtonpost.com/news/morning-mix/wp/2015/04/15/donald-sterlings-estranged-
wife-wins-back-millions-he-lavished-on-mistress/
82
Stuart P. Green
words of Swedish law) ‘casual’.83 Unlike the conventional prostitute, who may have sex
with numerous partners in a day, the paid ‘mistress’ typically has just one ‘client’ over an
extended period of time, from whom she may derive not just money but also aection,
prestige, and mentoring.84
A similar dynamic may exist in the case of so-called ‘oce romances’ in which a junior
corporate executive agrees to have sex with a powerful senior executive, on an ongoing
basis, in return for a promotion or raise (an apparently not uncommon practice85). While
some cases of this type could be handled (civilly) as sexual harassment, or (criminally)
as an abuse of position, many could not. For example, imagine that the junior party has
entered into the relationship without being pressured to do so, perhaps even on her own
initiative. Does it make any sense to think of such cases as prostitution?
e ‘oce romance’ cases dier from the paradigmatic case of prostitution, it seems
to me, in two key ways: First, as in the marriage and sugar daddy cases, the relationships
involved are more or less ‘exclusive.’ Second, as in the Tunnel case (involving the Texas
justice of the peace), sex is exchanged for a non-propertised benet. We would have to
have a quite broad rationale for criminalising prostitution to justify including such cases
within the meaning of the oence.
(e) Therapeutic Sex
Finally, we consider a class of cases that, though they do involve both ‘sex for money’ and
non-‘exclusive’ relationships, nevertheless test the limits of what constitutes prostitution.
83 See Sweden Penal Code Section 6.11; Louisiana Rev. Stat. Title 14, § 82 (prostitution is
‘indiscriminate sexual intercourse with others for compensation’); Vermont Stat. Ann. Title 13,
§2631 (prostitution includes oering or receiving the body for indiscriminate sexual intercourse
without hire); Oklahoma Stat. Ann. Title 21, § 1030 (prostitution is lewdness in exchange for
money; lewdness is dened as ‘the giving or receiving of the body for indiscriminate sexual’
activity with person not ones spouse). See also People v. Head, 304 P.2d 761 (Cal. App Ct. 1956)
(‘Prostitution is the common, indiscriminate, illicit intercourse of a woman for hire.’); Colletti
v. Morehead, 50 N.Y.S 2d 78, 81 (1944); Trent v. Commonwealth, 25 S.E.2d 350 (Va. 1943)
(‘prostitution’ means common, indiscriminate, illicit intercourse for hire).
84 ere is also a considerable gray area in between. So, for example, X may build a small, exclusive
client list of people with whom she has sex in return for expensive gis, while Y may be willing
to have sex with any man who buys her dinner. (anks to Jeremy Horder for pressing me on
this point.)
85 According to a recent study from the Center for Work-Life Policy, more than half of American
corporate executives surveyed (both men and women) believe that ‘when a junior woman is
having a sexual dalliance with the boss . . . salary hikes and plum assignments are being traded
for sexual favors. Hewlett, How Sex Hurts the Workplace, Especially Women, Harvard Business
Review blog (Aug. 24, 2010), https://hbr.org/2010/08/how-sex-hurts-the-workplace-es.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
83
I have in mind the kind of ‘therapeutic sex’ depicted in the 2012 lm e Sessions, based
on a true story, in which a man suering from polio and forced to live in an iron lung has
a series of encounters with a professional sex surrogate.86 Given its sexual, ‘promiscuous,
and commercial character, is there anything to exempt such conduct from being prose-
cuted as prostitution?
So far as I can tell, there are no reported criminal cases in which the question has
been considered. But the issue has arisen as a matter of professional ethics. In France,
neither buying nor selling sex was a crime until this year (when the law was changed to
criminalise the former). Yet, in 2013, the French National Ethics Committee opined that
sexual surrogacy constitutes an ‘unethical use of the human body for commercial pur-
poses’.87
Although not without controversy, such therapy (originally described by Masters
and Johnson in their 1970 textbook, Human Sexual Inadequacy) is viewed by some in
the medical profession as an eective and appropriate therapy for people with extreme
anxiety about sex and, increasingly, to fulll the needs or desires of people with seri-
ous disabilities.88 Sherry Colb has suggested that we think of the relationship between
ordinary prostitution and sexual surrogacy as analogous to that between recreational
and medical marijuana use.89 Under this approach, even if sexual surrogacy did consti-
tute a prima facie case of prostitution, it might make sense to allow its practitioners a
justication-type defense to any criminal charges. On the other hand, as Colb recognises,
while people use medical marijuana to ease ‘what would otherwise be nearly intolerably
painful health problems, it is not clear that the problems faced by those who use sexual
surrogates really compare.
As we shall see in a moment, one of the most compelling arguments for continuing
to criminalise at least some buying of sex is to prevent the exploitation and coercion—
of sellers—that oen occurs. In the case of sexual surrogacy, the potential for exploita-
tion of the seller seems minimal. If anyone is likely to be the victim of exploitation, it is
probably the buyer.90 e professional norms that ordinarily govern relations between
86 e Sessions (Fox Searchlight, 2012).
87 Hamblin, Intimacy in an Iron Lung, e Atlantic (July 9, 2013), http://www.theatlantic.com/
health/archive/2013/07/intimacy-in-an-iron-lung/277606/; see also de la Baume, Disabled
People Say ey, Too, Want a Sex Life, and Seek Help in Attaining It, New York Times (July 4,
2013), http://www.nytimes.com/2013/07/05/world/europe/disabled-people-say-they-too-want-
a-sex-life-and-seek-help-in-attaining-it.html
88 Rosenbaum et al., Surrogate Partner erapy: Ethical Considerations in Sexual Medicine, 11
Journal of Sex Medicine (2014), p. 321.
89 Colb, Sexual Surrogacy: Better an Prostitution?, Justia.com (July 24, 2013), https://verdict.justia.
com/2013/07/24/sexual-surrogacy-better-than-prostitution. ough it is worth considering the
possibility that even ‘recreational’ marijuana and prostitution could have therapeutic benets.
90 Colb makes a similar point.
84
Stuart P. Green
therapists and patients, and which strictly prohibit sexual relations, are severely tested
by such surrogacy.91 ere may well be good reasons for prohibiting sexual surrogacy,
whether criminally or as a matter of professional ethics, but it is doubtful that prostitu-
tion law oers a particularly appropriate method for doing so.
6. Rationales for Prohibiting Prostitution
So far, we have considered how various jurisdictions have determined what counts as
prostitution as a matter of positive law. In this section, we nally turn to the normative
question—namely, what should count as prostitution? As we shall see, there is no one-
size-ts-all answer. e only way to determine what should count as prostitution is by
considering why buying or selling sex are considered wrong, or appropriate for reduction
or deterrence, in the rst place; and those, of course, are highly contested questions. To
illustrate, I intend to consider ve commonly-oered rationales for criminalising, or at
least regulating, the sale or purchase of sex. ese are: (1) protecting religious values and
family integrity; (2) protecting the health of sex workers and the public; (3) preventing
violence against sex workers; (4) preventing objectication of women and commodica-
tion of sex; and (5) preventing economic exploitation and oppression of sex workers and
of women generally. I hope to show how the choice of rationale will ultimately determine
how we answer the ‘what counts as prostitution’ question.
(a) Methodology
Before we can begin, I need to explain a number of ways in which the discussion will be
limited:
First, my goal is to articulate the basic gist of a representative range of some of the most
inuential arguments for prohibiting or regulating prostitution or for believing that it is
wrong. I present the arguments in broad strokes, oering little of the detail and nuance
that can be found in the voluminous scholarly literature. In some cases, I have sought
to simplify matters by grouping what I perceive as related arguments under a common
heading (e.g., objectication and commodication). In other cases, I have sought to dis-
tinguish between arguments that other scholars may conate. Even if readers disagree
with how I have articulated, or grouped, one or more of these rationales, I hope they
will nevertheless be persuaded that, in deciding the denitional issue, the rationales we
choose are decisive.
91 Id.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
85
Second, I make no sharp distinction between arguments for why prostitution is wrong
and arguments for why it should be criminalised, reduced, or regulated. Although the is-
sues are conceptually distinct (one could certainly believe that buying or selling sex were
wrong without believing that they should be criminalised or regulated, and vice versa),
what matters for present purposes is that both kinds of arguments are relevant to the
‘what should count as prostitution’ question. For similar reasons, I shall not attempt to
distinguish between arguments for why prostitution is inherently wrong and arguments
for why it is contingently so. Nor shall I distinguish between arguments for why it should
be criminalised and arguments for why it should merely be regulated.
ird, I make no clear distinction between the act of buying sex and that of selling it.
Even if only one side of the transaction (most likely, the purchase) were to be criminalised
or prohibited, we would still need to know what counts as prostitution. Similarly, I make
no sharp distinction between the core acts of buying and selling sex, on the one hand,
and related acts such as pimping, brothel-keeping, street walking, and kerb crawling, on
the other. e concepts of buying and selling sex are logically prior to those of pimping,
brothel-keeping, and the like. us, even if a given jurisdiction were to criminalise only
the latter sort of act, it would still need to formulate a conception as to what constituted
the former.
Fourth, the rationales I consider are not meant to be mutually exclusive. As the rhet-
oric surrounding current Nordic prostitution regimes suggests, most of the rationales
are complementary and cumulative.92 us, even if a given rationale was not sucient
by itself to justify criminalisation, combined with one or more other rationales, it might
well be.
Fih, and crucially, I take these rationales more or less as I nd them, making no
attempt to assess the normative or empirical claims on which they rest. For example, I
do not consider how frequently sex workers are in fact subject to coercion, exploitation,
harassment, infection, mental health problems, or violence. I do not consider how the
experience of sex workers is likely to dier depending on the circumstances in which
they practice—for example, whether they are engaged in ‘indoor’ vs. ‘outdoor’ prostitu-
tion, are high-paid ‘call girls’ or low wage ‘street walkers’, brothel employees, or ‘window
workers. Nor do I consider the dierences between female and male sellers (or buyers) of
sex. Instead, I simply ask what the implications would be with respect to the denitional
question, taking these various rationales, and the empirical claims on which they are
based, at face value.
92 See Skilbrei and Holmström, Is ere a Nordic Prostitution Regime?, 40 Crime and Justice
(2011), p. 479; Fleharty, Comment, Targeting the ‘Tricks’ of the Trade: A Comparative Analysis
of Prostitution Laws in Sweden and the United States, 15 Oregon J. International Law (2013), pp.
443, at 448-450.
86
Stuart P. Green
Sixth, just as I do not assess the evidence regarding the conditions under which pros-
titutes actually work, I also refrain from assessing the extent to which a given approach
to criminalisation would be likely to achieve its stated goals. us, I do not consider the
possibility that some forms of criminalisation, rather than reducing the risks of stigma-
tization, violence, or disease to which sellers of sex are subject, might actually increase
them. I do not consider the possibility that criminalisation might infringe on any indi-
vidual’s rights to sexual autonomy, or that allowing people to sell sexual services, might,
under the right circumstances, be ‘empowering’. Nor I do consider the ‘t’ between crim-
inalisation and the problems it is supposed to address. For example, I do not consider the
possibility that some of the arguments for why prostitution should be criminalised are
under- or overinclusive.
Finally, in articulating the various arguments that have been oered to explain why
prostitution is wrong or should be deterred or discouraged, I will not attempt to say
whether a given rationale meets the requirements of liberal criminalisation theory more
generally. For example, I will not consider the possibility that, even if sellers of sex cause
serious harms to themselves, such harms might fail to provide an appropriate basis for
criminalisation in a liberal society. More generally, I shall resist categorizing various jus-
tications for criminalising prostitution as involving ‘harms to others, ‘harms to self ’, ‘of-
fense to others, or ‘legal moralism, or excluding them from consideration simply because
they are inconsistent with a liberal approach to criminalisation.
(b) Five Rationales for Why Prostitution is Wrong or should be Criminalised
● Protecting Religious Values
From a traditional, Western, Judeo-Christian perspective, there are essentially two re-
lated and overlapping justications for prohibiting prostitution. One is premised on the
view that the only kind of sex that is morally permissible is that which occurs within a
heterosexual, monogamous, marital relationship, and which has procreation as its main
purpose. Sex that does not meet this paradigm is regarded as immoral. Under this view,
prostitution would be regarded as immoral for the same reasons fornication and adultery
would be regarded as immoral.93 e second justication views the ban on prostitution as
93 See, e.g., Wurmbrand, Prostitution, in Encyclopedia Judaica (Macmillan, 2d ed. 2006), vol.
16, pp. 625, 626 (‘every sexual act between a man and a woman outside marital relations was
considered as coming within the denition of prostitution (be’ilat zenut), and the rabbis strongly
condemned manifestations of sexual license in the Jewish community’). For a similar, Christian-
based, rationale, see Devlin, e Enforcement of Morals (Oxford U. Press, 1965), pp. 12, 179
(written in response to the 1957 Wolfenden Committee Report on Homosexual Oences and
Prostitution).
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
87
a means to preserve the integrity of the family, prevent divorce, and assure that children
are conceived within a (heterosexual) marital home.94
Taking the religious position at face value, what would we expect its implications to
be with respect to the ‘what counts as prostitution’ question? As far as I am aware, there
is no discussion of the issue within the religious literature itself. We can, however, make
some educated guesses.
To the extent that society is interested in channeling sexual desire into procreative
activities, preventing the ‘wasting’ of sperm, and preserving family harmony, we would
expect a fairly broad denition of prostitution. Under this approach, oral and anal sex,
happy ending massage, and even lap dancing would all arguably fall within the scope of
what counts as prostitution. On the other hand, if the main reason for prohibiting prosti-
tution was to prevent out-of-wedlock births, we would expect a rather narrow denition
of the oense, limited essentially to vaginal intercourse.
Under either religious rationale, the ‘commercial’ aspect of prostitution would be of
relatively little importance. What makes prostitution wrong, according to the religious
approach, is not so much that sex is being paid for, but that it is almost invariably extra-
marital and promiscuous.95 We would therefore expect the moralist to embrace the mar-
ital prostitution exemption. So long as the sex was obtained within the connes of mar-
riage (and involved vaginal intercourse), there would be no reason to prohibit it simply
because it was bought. On the other hand, ‘sugar daddy’, ‘oce romance, and professional
surrogate sex would all presumably remain illicit, since all involve sex that occurs outside
the realm of marriage.
● Protecting the Health of Sex Workers and the Public
Historically, one of the most important rationales for criminalising prostitution has been
protecting the public health and preventing the spread of disease. Indeed, it was such
94 As the U.S. Supreme Court characterized commercial sex workers in 1908, ‘[t]he lives and
examples of such persons are in hostility to “the idea of the family, as consisting in and springing
from the union for life of one man and one woman in the holy estate of matrimony; the sure
foundation of all that is stable and noble in our civilization, the best guaranty of that reverent
morality which is the source of all benevolent progress in social and political improvement”’.
United States v. Bitty, 208 U.S. 393, 401 (1908) (quoting Murphy v. Ramsey, 114 U.S. 15, 45
(1885)).
95 As Aquinas put it, ‘paying a prostitute for fornication involves money given for something
unlawful, but the giving itself is not unlawful. us, the prostitute ‘may keep her fee’ and is not
obliged to give it back to the customer’ (unless, that is, she demands too much for her services).
See Dever, Aquinas on the Practice of Prostitution, in Essays in Medieval Studies: Proceedings of
the Illinois Medieval Association (vol. 13, 1996), available at http://www.illinoismedieval.org/
ems/VOL13/dever.html (quoting omas Aquinas, Summa eologiae, vol. 2-2.32.7).
88
Stuart P. Green
concerns that gave rise to the rst wave of modern prostitution statutes, the English
Contagious Diseases Acts of the 1860s, which allowed police ocers to arrest prostitutes
in certain ports and garrison towns, and subject them to compulsory checks for venereal
disease.96 Protection of public health was also a leading rationale of American prosti-
tution laws in the Progressive Era of the early 20th century.97 e argument here is not
that buying or selling sex should be prohibited because they are intrinsically wrong, but
rather, because of the way they are practiced in the real world.
Although 19th and early 20th century reformers seem to have been concerned pri-
marily with the health of sex buyers, today it is recognized that the most signicant
health risks are to sex sellers, especially those who work the streets.98 In addition to HIV
and other venereal infections, sex workers oen suer from gynecological, palatal, and
mental health problems, including post-traumatic stress, depression, anxiety, and disso-
ciative orders.99 As a result, even those jurisdictions that have decriminalised both the
buying and selling of sex, such as the Netherlands and Nevada, continue to regulate it.
For purposes of this discussion, let us take at face value the idea that preventing the
spread of disease oers a rationale for prohibiting or regulating the buying and selling of
sex.100 What would be the implications of such a view with respect to the ‘what counts as
prostitution’ question?
My best guess is that we would end up with a relatively narrow denition of both
the ‘sexual conduct’ and ‘exchange’ elements. Even if the public health rationale did jus-
tify prohibiting or regulating (the purchase, if not the sale of) penetrative sex for hire,
it would provide relatively little justication for prohibiting or regulating non-penetra-
tive sex, involving, say, lap dancing, sadomasochistic conduct, breast touching, or genital
stimulation. On the other hand, there would be no basis not to include penetrative sex in
which the seller’s fee was paid by a third party. Slightly less clear would be cases in which
the buyer pays to watch two or more other people having sex (as in Taylo r, Wo ote n , and
Freeman). Assuming that the sex was penetrative, serious health concerns would still
96 I review this history in Green, Vice Crimes and Preventive Justice, 8 Criminal Law and Philosophy
(2013), p. 561.
97 See id.
98 For a useful summary of the evidence, see Law, Commercial Sex: Beyond Decriminalization, 73
Southern California L. Rev (2000), pp. 523, at 545-552.
99 See Dempsey, Sex Tracking and Criminalization: In Defense of Feminist Abolitionism, 158 U.
Pennsylvania L. Rev. (2010), pp. 1729, at 138-139.
100 ough it should be noted that there is reason to believe that, among some populations, casual,
non-commercial sex is at least as common a transmitter of disease as prostitution. See Kelland,
Disease Risk Higher for Swingers than Prostitutes, Reuters.com (June 23, 2010), http://www.
reuters.com/article/us-sex-diseases-swingers-idUSTRE65M6NX20100623 (reporting on Dutch
study). Assuming thats true, it would suggest that legislation prohibiting commercial sex is
woefully underinclusive.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
89
be present for the performers themselves (though the risk to the broader ‘public’ would
presumably be less).
And how would the disease-prevention rationale play out with respect to dening
the proper limits of ‘exchange’? It certainly should not matter that sex was exchanged for
something other than money, such as the monthly rent or a ride across town. e cases
where the disease-prevention rationale would lead to a signicantly dierent outcome
are those involving essentially ‘exclusive’ relationships, whether marital, sugar-baby, or
oce romance. In the case of marital prostitution, the risk of disease would be no greater
than in the case of ordinary marital sex. And in the case of oce romance and sugar baby
relationships, the risk of spreading disease would be no greater than in other cases of
(non-commercial) adultery or fornication.
● Preventing Violence against Sex Workers
In addition to the risk of infection, commercial sex workers also face the danger of
violence and physical abuse. Women who sell sex are far more likely than the general
population to be raped, beaten, and even killed.101 According to one controversial Cana-
dian study, the mortality rate among prostitutes was found to be forty times the national
average.102
ere is a debate about whether criminalising prostitution alleviates such risks, or
actually exacerbates them, since women who are engaged in illegal (as opposed to legal)
prostitution are probably more likely to be abused in the rst place, and less likely to
report such violence to the police or to be taken seriously when they do.103 For present
purposes, we need not resolve the issue. Rather, I want to ask the same question I have
been asking all along: if we take this rationale at face value, what would the implications
be with respect to what should count as prostitution?
e answer is likely to turn almost entirely on empirical ndings. ere are data
indicating that the incidence of violence against prostitutes who work ‘outside’ is consid-
erably greater than that committed against those who work ‘inside’.104 is would suggest,
at a minimum, that sugar baby, oce romance, and marital cases should be excluded
from the denition of prostitution. I am not aware of any data, however, correlating the
incidence of violence with the sale of specic types of sexual activity. If it turned out that,
101 Law 2000, p. 533.
102 Id.
103 See, e.g., Cunningham and Shah, Decriminalizing Prostitution: Surprising Implications for
Sexual Violence and Public Health, National Bureau of Economic Research Working Paper No.
20821 (2014), http://www.nber.org/papers/w20281
104 See Weitzer, Sex Work, Gender, and Criminal Justice, in e Oxford Handbook of Gender, Sex,
and Crime, eds. Gartner and McCarthy (Oxford U. Press, 2014), pp. 508, at 514.
90
Stuart P. Green
other things being equal, the risk of violence from commercial non-penetrative sex was
less than that from commercial penetrative sex, we should be less likely to want to dene
the former as prostitution.
● Preventing the Commodication of Sex and the Objectication of Women
Two additional, closely related grounds for condemning prostitution are that it involves
(1) the ‘commodication’ of sex, and (2) the ‘objectication’ of women. Both arguments
seem to go to the inherent structure of prostitution, rather than to the social environment
in which it is actually practiced.
e argument regarding objectication is that buying sex ‘objecties the seller,
insofar as it entails interacting with and caring about parts of the seller that are bodily
and incidental; sometimes it involves a desire that the prostitute be either passive or easily
controlled, suggesting a further sense in which a person is treated as not fully human, or
as an object’.105 According to the advocates of this approach, treating women this way fails
to recognize them as free and equal persons, dehumanizes them, and encourages their
victimisation.
e argument from commodication follows a similar tack. It says that, because per-
sons’ bodies and sexual capacities play an integral role in dening their identity, one who
works as prostitute sells her personhood and therefore herself.106 According to this view,
prostitution is a transaction in which one person must be dened as a social subordinate
who caters to the desires of another.107
e commodication argument, as I understand it, is dependent on a particular
view of what constitutes ‘good’ or ‘moral’ sexual conduct. As Elizabeth Anderson has
explained, the good of sex is:
105 Marino, Prostitution, in, e International Encyclopedia of Ethics, ed. LaFollette (Wiley-Blackwell,
(2013). For a critique and elaboration of the objectication view, see Nussbaum, Sex and Social
Justice (Oxford University Press, 1999), pp. 214-218. Kant’s critique of prostitution can also be
understood as resting on a theory of objectication. See Kant, Lectures on Ethics (Louis Ineld,
trans.) (Hackett, 1930), p. 165 (‘Human beings are . . . not entitled to oer themselves, for prot,
as things for use of others in the satisfaction of their sexual propensities. In so doing they would
run the risk of having their person used by all and sundry as an instrument for the satisfaction
of inclination.).
106 Shrage, Feminist Perspectives on Sex Markets, Stanford Encyclopedia of Philosophy (first
published, 2004), http://plato.stanford.edu/entries/feminist-sex-markets/#Pro. For further
discussion and critique, see Nussbaum, ‘Whether from Reason or Prejudice’: Taking Money for
Bodily Services, 27 e Journal of Legal Studies 693, 695 (1998); Satz, Markets in Women’s Sexual
Labor, 106 Ethics 63, 70 (1995); and Radin, Contested Commodities: e Trouble with the Trade in
Sex, Children, Body Parts, and Other ings (Harvard U. Press, 2001).
107 See Shrage 2004.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
91
realized only when each partner reciprocates the others gi in kind, oering her own
sexuality in the same spirit in which she received the other’s -- as a genuine oering
of the self. e commodication of sexual “services” destroys the kind of reciprocity
required to realize human sexuality as a shared good, [and may corrupt non-market
sexual relationships by promoting the valuation of women in terms of their market
worth].108
Under this view, buying and selling sex are seen as wrongful because they undermine the
value of sex and, ultimately, the value of the individual who engages in them.
Although conceptually distinct, the two critiques are closely related. It is hard to imag-
ine any form of commodication that did not also involve objectication. And while one
could certainly objectify without commodifying, commodication seems to involve a
particularly strong form of objectication.
So what are the implications of these two critiques with respect to the ‘what consti-
tutes prostitution’ question? It would seem that a very wide range of sexual acts, whether
or not paid for, could entail objectication. is would be true not only in the case of
sexual penetration, but also with respect to non-penetrative and even non-contact sexual
encounters, such as those that occurred in Keawe (lap dancing), Georgia (sadomasoch-
ism), Begley (stripper) and Turnpaugh (sex worker masturbating). And when such acts
are being performed for money, the potential for social subordination, the undermining
of reciprocity, and the corruption of non-market sexual relationships would seem to be
all the greater.
As for the ‘exchange’ element, the same concerns would arise even if sex was given in
return for something of value other than money, such as a ride across town (Edwards),
a fur coat (Johnson), or a decision by the justice of the peace to look the other way while
criminal acts were being performed (Tunnel). Somewhat more dicult are those cases
in which, in return for sex, a husband gives his wife an allowance, a corporate executive
promises to support a subordinate in her bid for promotion, or a wealthy patron pays
the college tuition of his younger, dependent lover. On the one hand, such acts do in-
volve penetrative sex for money. On the other hand, the opportunity for reciprocity and
genuine oering of the self is arguably greater than in more conventional cases of ‘by the
hour’ prostitution. If I am right, the argument for calling conduct of this sort prostitution
would be weaker than in the typical case.
One can also imagine a plausible argument, made by the husband, the corporate ex-
ecutive, or the wealthy patron, that the money given to his wife, subordinate, or lover was
being given not in return for sex, but rather as a mere incident to it. A similar claim has
108 Anderson, Value in Ethics and Economics (Harvard University Press, 1993), pp. 154-155; see also
Radin 2001, p. 133.
92
Stuart P. Green
been made in cases involving surrogate mother agreements, where the so-called ‘com-
modication of motherhood’ is a concern. Many jurisdictions have decided that, while
it is impermissible to pay a surrogate mother directly for her services, she may be com-
pensated for her pregnancy-related expenses.109 Cases like Xiao (involving forty dollar
drinks at a Honolulu nightclub) suggest that, despite its formalistic quality, an analogous
argument could be successful in the context of prostitution.
● Preventing Economic Exploitation and Oppression of Women (Liberal and
Radical Versions)
Perhaps the most inuential contemporary rationale for criminalising the purchase of
sex (though not its sale) turns on the idea that prostitution involves the oppression and
exploitation of sex workers (and, in some formulations, of women generally). ere are
essentially two dierent versions of the oppression critique, one associated primarily with
liberal feminism, and the other with radical feminism. e liberal approach looks to the
contingent particulars of how sex workers are treated in the real world, while allowing for
the possibility that some prostitutes might not be subject to exploitative conditions. e
radical approach, by contrast, views the purchase of sex as inherently exploitative and op-
pressive. Under this view, buying sex is always wrong and appropriate for criminalisation.
Both approaches overlap to some degree with the more specic arguments regarding
public health, violence, objectication, and commodication, considered above.
e liberal approach is exemplied by the views of early 20th century American re-
formers such as Jane Addams, who sought legislation to protect prostitutes at a time
when the economy was becoming increasingly industrialized, and young, single women
were moving to the cities and entering the workforce.110 Addams was a signicant inu-
ence on the 1911 report of the Vice Commission of Chicago, which spoke of the ‘sad life
of prostitution, the ‘ghastly life story of fallen women, and the ‘morally and physically
debasing and degrading’ eects of the practice.111 Today, the liberal approach is exempli-
ed by scholars such as Peter de Marnee, who has described sellers of sex as individuals
caught up in an exploitative process ‘commonly experienced as humiliating and abusive,
and result[ing] in lasting feelings of worthlessness, shame, and self-hatred’.112
109 See, e.g., R.R. v. M.H., 689 N.E.2d 790, 796-797 (Mass. 1998).
110 See Langum, Crossing Over the Line: Legislating Morality and the Mann Act (University of
Chicago Press, 1994), pp. 17-19. For a discussion of John Stuart Mill’s views of prostitution, see
Clare McGlynn, John Stuart Mill on Prostitution: Radical Sentiments, Liberal Proscriptions,
in Nineteenth-Century Gender Studies, issue 8.2 (summer 2012), http://www.ncgsjournal.com/
issue82/mcglynn.htm
111 1911 Chicago Report (quoted in de Marnee, Liberalism and Prostitution, at p. 60).
112 de Marnee 2010 p. 13.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
93
e radical approach is identied with late 20th century feminist scholars and
advocates such as Catharine MacKinnon and Andrea Dworkin. ey view the prosti-
tution industry as a ‘quintessential expression of patriarchal gender relations and male
domination, a vehicle for inicting coercion and exploitation on women.113 As Dworkin
put it, ‘prostitution in and of itself is an abuse of a woman’s body. . . . When men use
women in prostitution, they are expressing a pure hatred for the female body’.114 Unlike
liberal feminists, who tend to focus on how prostitution and other sex work aects the
rights of women individually, radical feminists tend to focus on the rights of women col-
lectively since, in their view, prostitution is the result of the subordination of the entire
female gender.
According to the radical view, prostitution reects deep structural inequalities be-
tween men and women, and perpetuates sexism, sex discrimination, and misogyny. So-
cial and economic inequalities between men and women render it nearly impossible for
a woman to actually ‘choose’ to become a prostitute.115As Shulamit Almog explains, the
very act of labeling an act of prostitution as ‘consensual’ is stigmatizing; the woman who
consents in these circumstances is ‘marked, abandoned, [and] disgraced . . . separated by
an abyss from all women who have not chosen to be prostitutes’.116 On this view, prostitu-
tion and other forms of putatively consensual sex work are viewed as on par with unam-
biguously non-consensual oenses such as domestic violence, sexual assault, and rape.
And what are the implications of the liberal and radical views with respect to the
‘what-counts-as-prostitution’ question? Both the liberal and the radical theorist are likely
to see the potential for exploitation not only in conventional prostitution, but also in oth-
er forms of sex work, such as appearing in pornography and working in strip clubs.117 On
this view, we would expect to see ‘prostitution’ dened quite broadly.
As for the ‘exchange’ aspects of prostitution, it seems likely that radical feminists (if not
necessarily their liberal counterparts) would nd cases involving marital, sugar daddy,
and oce romance relationships suciently exploitative and oppressive to be included
in the same basket as more conventional forms of prostitution. All of these relationships
113 Weitzer, Legalizing Prostitution: From Illicit Vice to Lawful Business (NYU Press, 2012), at pp.
10-11; see also Dworkin, Prostitution and Male Dominance, in Life and Death (New York: Free
Press, 1997), at p. 139; MacKinnon, Feminism Unmodied: Discourses on Life and Law (Harvard
U. Press, 1987), at p. 158; MacKinnon, Toward a Feminist eory of the State (Harvard U. Press,
1989); Dempsey 2010, pp. 1736-1739; Aronson, Note, Seeking a Consolidated Feminist Voice for
Prostitution in the U.S., 3 Rutgers Journal of Law & Urban Policy (2006), pp. 357, 370.
114 Dworkin 1997, p.145.
115 Pateman, e Sexual Contract (Stanford University Press, 1988), p. 207.
116 Almog, Prostitution as Exploitation: An Israeli Perspective, 11 Georgetown J. Gender and the
Law (2011), p. 711.
117 Indeed, gures such as MacKinnon have been equally concerned with the exploitative eects of
the pornography industry. MacKinnon 1987, p. 158.
94
Stuart P. Green
seem to reect the same kinds of patriarchal and unequal relationships that lie at the core
of more traditional forms of prostitution. ere would thus be no reason to exempt such
cases from liability.
7. Dening ‘Sex’ and ‘Sexual Conduct’ in Other Criminal Law Contexts
In the previous several sections, we observed the diculty of trying to say what consti-
tutes, or should constitute, ‘sex’ and ‘sexual conduct’ in the specic context of prostitu-
tion. In this concluding section, I suggest that analogous denitional quandaries arise
in connection with a range of other sexual oenses as well, both consensual (such as
adultery and adult incest), and nonconsensual (such as sexual assault).
(a) ‘Sex’ in Ordinary Language
Before we consider how ‘sex’ is dened in these legal contexts, it will be useful to consid-
er briey how the term is used in ordinary language. ose empirical studies that have
been conducted have found that while almost all subjects agreed that penile-vaginal in-
tercourse qualies as sex, there is a signicant variance with respect to a range of other
forms of conduct. Consider, for example, the results of a 2010 study from the Kinsey
Institute. e survey asked a representative sample of subjects, ‘would you say you “had
sex” with someone if the most intimate behavior you engaged in was . . . .?’ Ninety ve
percent of all participants answered yes with respect to penile-vaginal intercourse, but
a smaller percentage answered yes with respect to penile-anal intercourse (81 percent),
having oral contact with a partner’s genitals (71 percent), and touching or stimulating a
partner’s genitals (45 percent).118 A similar study was published in 1999, not long aer Bill
Clinton implied, in grand jury testimony, that he had not ‘ha[d] sex’ with Monica Lew-
insky (who, it turns out, had fellated, but apparently not had intercourse with, him).119
In the study, approximately six hundred American college students were asked the same
‘would you say you “had sex”’ question. While there were some modest dierences be-
tween the responses of men and women, a similar hierarchy emerged: More than 99
percent said they would be ‘having sex’ if they had engaged in penile-vaginal intercourse;
81 percent, penile-anal intercourse; 40 percent, oral contact with genitals; 15 percent,
118 See Sanders et al., Misclassication Bias: Diversity in Conceptualisations About Having ‘Had
Sex’, Kinsey Institute Research Paper (2010), http://kinsey.indiana.edu/publications/PDF/had%20
sex%20study.pdf
119 Reinisch and Sanders, Would You Say You Had Sex If . . . ?, 281 Journal of the American Medical
Association (1999), p. 275. Although the study was published aer the Lewinsky scandal broke,
the data were obtained prior.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
95
having a person touch the genitals; and less than 5 percent, oral or digital contact with
breasts or nipples, or deep kissing.
Both of these studies probably raise at least as many questions as they answer.120 First,
it is important to recognize that the subjects were asked about the meaning of ‘having
sex’, rather than being engaged in ‘sexual conduct’. It is quite possible that some respon-
dents understood ‘having sex’ as a euphemism for sexual intercourse, presumably a sub-
set of the broader category of ‘sexual conduct’. e studies also don’t tell us much about
context or demographics. In the case of the students, perhaps some were thinking about
whether they could engage in such contact and still, for better or worse, consider them-
selves virgins. Perhaps they were concerned with issues of ‘delity’ to signicant others.
Perhaps their answers varied depending on their sexual orientation. In assessing their
responses, it would be helpful to know what the subjects understood as the costs and
benets (to their mental health, self-esteem, reputation among their peers, and the like)
of labelling some behaviour as ‘having sex.’ Would their answers have diered if they
had been asked to make judgments about the conduct of others, rather than themselves?
What if the person they were making a judgement about was their own regular sexual
partner, who had been intimate with someone else? Would it matter if the conduct was
performed in the context of a ‘hook-up’ or ‘one-night stand, rather than in a long-term
relationship? What assumptions did the subjects make based on the minimal description
of the conduct given? Did the subjects assume that the contact was consensual? Would
their answers have diered if they had been told that they had been forced or tricked or
coerced into having such contact?
(b) Adultery
One of the reasons the ‘would you say you “had sex”’ question generated such interest
in the wake of the Lewinsky scandal was that it played an obviously crucial role in de-
termining a moral and legal issue: only if Clinton had had sex with Lewinsky would he
have committed adultery (at least with her). And Americans apparently still feel quite
strongly about the wrongfulness of adultery (or at least the closely related act of ‘having
an aair’). According to a recent Gallup poll, only 8 percent of American adults surveyed
considered ‘married men and women having an aair’ to be ‘morally acceptable’, a low-
er percentage than considered it acceptable to clone humans (15%), engage in polyga-
my (16%), or commit suicide (19%), not to mention having a baby outside of marriage
120 e discussion in this paragraph is borrowed from Green, What are the Sexual Oences?, in e
New Philosophy of Criminal Law, eds. Flanders and Hoskins (Rowman Littleeld, 2015), pp. 57,
62-63.
96
Stuart P. Green
(61%), engaging in homosexual relations (63%), or sex between an unmarried man and
woman (68%).121
e fact that people regard adultery as a moral wrong, however, does not necessarily
mean they think it should be criminalised. Indeed, public opinion polls indicate that
between two-thirds and three-quarters of those Americans surveyed believe that adultery
should not be a crime for civilians.122 is may explain why, despite the fact it remains on
the books in many U.S. jurisdictions, adultery is no longer prosecuted in civilian criminal
courts123 (though it continues to play a signicant role in (civil) divorce proceedings and
to provide a basis for court-martial proceedings in the U.S. military124).
Given its continued, if diminished, legal signicance, it is worth asking how adul-
tery has been, and should be, dened. A few statutes make it a crime simply to commit
‘adultery,’ without further explanation, in a manner reminiscent of statutes that make
it a crime to engage in ‘prostitution.125 ose provisions that do dene the act, includ-
ing the U.S. Uniform Code of Military Justice, overwhelmingly require that a married
person and someone who is not his spouse engage in the act of sexual ‘intercourse or
121 Newport, Americans Continue to Shi Le on Key Moral Issues, Gallup.com (2015), http://
www.gallup.com/poll/183455/once-taboo-behaviors-acceptable.aspx.
122 Rhode, Adultery: Indelity and the Law (Harvard U. Press, 2016), at p. 22 (citing Associated Press
and CNN/Gallup polls).
123 See Posner and Silbaugh 1996 pp. 103-110 (listing statutes). Whether a civilian criminal
prosecution for adultery could even survive U.S. constitutional challenge seems doubtful. See
Lawrence v. Texas, 539 U.S. 558, 599 (2003) (Scalia, J., dissenting) (predicting that adultery
laws, along with laws against fornication, bigamy, adult incest, bestiality, and obscenity, could
not survive majority’s opinion striking down Texas’ sodomy law). is is in contrast to other
countries, especially in Asia, where adultery remains a crime. See, e.g., Xiaoying, Nearly
90 Percent Oppose Abolishing Crime of Adultery, China Daily (June 15, 2015), http://www.
chinadaily.com.cn/china/2015-06/15/content_21008271.htm (poll data from Taiwan). But see
Delman, When Adultery is a Crime, e Atlantic (March 2, 2015) http://www.theatlantic.com/
international/archive/2015/03/south-korea-adultery-law-repeal/386603/ (noting that South
Korean Constitutional Court recently struck down country’s adultery law).
124 Uniform Code of Military Justice, Art. 134, ¶ 62. Even in jurisdictions with no-fault divorce
proceedings, evidence regarding adultery remains relevant with respect to property distributions,
spousal support, and child custody. Pfeier, Virtual Adultery: No Physical Harm, no Foul?, 46
University of Richmond L. Rev. (2012), pp. 667, 675.
125 See e.g., W.V. Code s. 61-8-3.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
97
‘penetration.126 us, in most states and in the military, ‘lesser’ forms of sexual contact
would not constitute adultery.127
So exactly how should adultery be dened, whether in law or morality? e answer, of
course, depends on why we think adultery is wrong or socially harmful in the rst place
(assuming we do). In ‘traditional’ societies, the reasons adultery was viewed as wrong
were similar to the reasons prostitution was traditionally viewed as wrong—namely, that
it involved sex that occurred outside of what was religiously permissible, was likely to
undermine family integrity, violated a husband’s property rights in his wife, and had the
potential to raise questions about paternity.128 In practice, this meant that a wife’s adultery
was generally treated more harshly than a husbands. It also explains why adultery was
dened so narrowly in law. As in the case of prostitution and common law rape, vaginal
marital intercourse was the only kind of sex condoned by the law, so vaginal marital in-
tercourse with someone other than one’s spouse was the only kind of marriage transgres-
sion with which adultery law was properly concerned. A married partner who engaged
in oral or anal sex in an extramarital relationship was engaging in conduct that was not
permissible even within the marital bedroom; thus, the relationship could not be said to
be harmed.129
In our age, of course, a far greater range of (consensual) sexual activity is viewed as
morally ‘acceptable,’ or at least ‘tolerable, both within marriage and among those who
are not married. From this, one might infer that the denition of what constitutes adul-
tery should also be broader. For example, in a recent divorce case from Louisiana, the
126 See sources cited in Posner and Silbaugh 1996 pp. 103-110. ere is an interesting question
about exactly which parties should be held liable for adultery. Imagine that A, who is married,
has intercourse with B, who is not. e clear majority approach is to punish both A and B, though
there are several states in which only the married person would be criminally liable. (e New
Hampshire adultery statute applies to both parties so long as the unmarried party knows that
his partner is married – see N.H. Rev. Stat. § 645:3.) One might think that the wrong entailed
by adultery is committed in the rst instance by the married party, not by the unmarried one.
At most, B would be aiding and abetting A in a violation of As marriage vows. For this reason,
if adultery is to remain a crime (and I doubt very much that it should), the minority approach,
under which only married oenders are punished, may be preferable.
127 Kentucky is unusual in having a statute that applies to ‘intercourse or sodomy,’ see Kentucky Rev.
Stat. section 392.090(2), while North Carolina law requires that the adulterous couple ‘lewdly
and lasciviously associate, bed, and cohabit together’, see N.C. Gen. Stat. section 14-184.
128 See generally Rhode 2016 pp. 24-59. As the case of R. v. Mawgridge, (1707) Kel. 199, 84 ER 1107
at 1115, famously put it (in the context of the provocation defense), ‘[w]here a man is taken in
adultery with another man’s wife, if the husband shall stab the adulterer or knock out his brains
this is bare manslaughter: for jealousy is the rage of man and adultery is the highest invasion
of property’. See also State v. Lash, 16 N.J.L. 380, 387 (N.J. Super Ct. 1838) (‘e heinousness of
[adultery] consists in exposing an innocent husband to maintain another man’s children, and
having them succeed to his inheritance.’).
129 For a helpful elaboration of this point, see generally Coughlin, Sex and Guilt, 84 Virginia L. Rev.
(1998), p. 1.
98
Stuart P. Green
defendant admitted that she and a man who was not her husband had shared a bed and
touched each other’s sexual organs, though she denied that they had had intercourse. In
the absence of any statutory denition, the court determined that such non-coital contact
was sucient to constitute adultery.130 Some commentators, moreover, have even gone
so far as to suggest that the concept of adultery should include cases of ‘virtual,’ online
indelities.131
Simply because our notion of what constitutes ‘acceptable’ sex is broader than it was
at common law, however, does not necessarily mean that our notion of what constitutes
adultery should also be broader. e reasons adultery is still so widely viewed as morally
wrong today are clearly dierent than they were in traditional societies. To decide what
should constitute adultery, we would need an adequate theory of why and how adultery is
wrongful or harmful, and an understanding of what role the law and social stigma should
play in its regulation. And the way we answer these questions may well vary depending
on the precise context. For example, it appears that U.S. military law makes adultery an
oense not because it is concerned with preserving the sanctity of marriage as such, but
because adultery is said to be ‘prejudicial to good order and discipline’ and likely to bring
discredit upon the armed forces’.132 By contrast, the reason ordinary civilians tell pollsters
they regard adultery as wrongful may have more to do with moralized conceptions of
loyalty, trust, and honesty within marriage.
(c) Incest
Analogous denitional questions arise in the context of incest law. Across U.S. jurisdic-
tions, statutes dier with respect to what constitutes both the prohibited sexual act and
the prohibited relation. A majority of statutes say that it is a crime to ‘have intercourse
with’ or ‘commit an act of sexual penetration’ with a relative (dened variously as an
ancestor, descendant, parent, child, grandparent, grandchild, aunt, uncle, nephew, niece,
sibling, or rst cousin, by blood or adoption or marriage).133 A minority make it a crime
simply to ‘perform a sex act’ with a relative on the prohibited list.134
130 Bonura v. Bonura, 505 So.2d 143, 144 (La. Ct. App. 1987).
131 See Pfeier 2012; Cossman, e New Politics of Adultery, 15 Columbia Journal of Gender
and Law (2006), pp. 274, 276-277; Hall, Sex Online: Is is Adultery?, 20 Hastings Comm. &
Entertainment L.J. (1997), p. 201; Varnado, Avatars, Scarlet ‘As, and Adultery in the Technological
Age, 55 Ariz. L. Rev. (2013), p. 371.
132 Annuschat, Comment, An Aair to Remember: e State of the Crime of Adultery in the
Military, 47 San Diego L. Rev. (2010), p. 1161.
133 Posner and Silbaugh 1996, pp. 129-142.
134 Ibid. Yet other statutes say that it is a crime to ‘marry’ a relative.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
99
So how should the ‘sex’ in incest be dened? Should it be limited to penetration, or
should it apply to other ‘lesser’ sexual acts as well? Answering that question (as well as
the question of what should constitute a prohibited familial ‘relation’) requires a consid-
eration of why and how incest is wrong and should be criminalized (assuming it should
be) in the rst place.
ese questions, of course, are contested, but three possible rationales can be men-
tioned: (1) preventing sexual abuse and sexual imposition, (2) protecting the family unit
from intra-familial sexual jealousies and rivalries, and (3) reducing the risk that children
will be born with genetic abnormalities.135 If incest laws were concerned exclusively with
preventing genetic abnormalities, it would make sense to limit the oense to cases in-
volving fertile partners of the opposite sex having vaginal intercourse without adequate
contraception. To the extent that incest laws are concerned with preventing intra-familial
sexual jealousies, a broader denition of sexual activity would seem warranted, since
non-penetrative sexual contacts between family members may be as likely to be induce
destabilizing jealousies as those involving penetration. And to the extent that the purpose
of incest law is to prevent sexual imposition and abuse—that is, insofar as incest is es-
sentially a non-consensual, rather than consensual, oence—an even broader denition
would seem appropriate. e English Sexual Oences Act 2003 thus seems to take the
right approach when it distinguishes, at the outset, between incest involving adults and
incest involving juveniles. If the former, there must be ‘penetration’; if the latter, any sex-
ual ‘touching’ will suce. 136
(d) Nonconsensual Offenses
So far in this article, we have considered the denition of ‘sexual conduct’ as it appears
in three distinct oences: prostitution, adultery, and incest. e rst thing to note about
adultery and adult incest (I leave to the side incest involving children) is that they are
putatively consensual oenses. If there is any reason to criminalise them, it is not because
anyone’s sexual autonomy is being violated. Rather, it’s because of some societal interest
that is extraneous to consent and autonomy—presumably, the sanctity of marriage (in the
case of adultery) or the integrity of the family (in the case of adult incest).
Because the underlying conduct is consensual, we would expect to see the oense
dened fairly narrowly. Otherwise, there is a danger that the law might be applied in an
overbroad manner, unduly infringing the right to sexual autonomy. For example, consen-
135 See generally Hörnle, Consensual Adult Incest: A Sex Oense?, 17 New Criminal Law Review 76
(2014); Bergelson, Vice is Nice But Incest is Best: e Problem of a Moral Taboo, 7 Criminal Law
and Philosophy (2013), p. 43.
136 Sexual Oences Act 2003, ss. 64(1), 25(1), respectively.
100
Stuart P. Green
sually embracing or kissing a sibling or child or parent, or even observing them naked,
might be treated as incestuous; and doing so with a friend or acquaintance who was not
ones spouse could be treated as adulterous. By requiring that the consensual act being
performed be penetrative, we minimize the possibility that the law will be applied too
broadly.
When we turn to the nonconsensual oenses, however, we see a very dierent moral
and legal landscape. Virtually every means of sexually imposing on V without her con-
sent (or, in some cases, without her assumption of risk) is wrong and potentially criminal
—whether it is extremely intimate means such as having penetrative sex (as in rape), or
less intimate means such as touching (as in sexual assault), watching her while she is nude
(as in voyeurism), or subjecting her to unwanted sexual sights (as in indecent exposure).
Here, we need not appeal to some interest that is extraneous to consent or autonomy, as
we do in the case of adultery or adult incest. Here, it is precisely the lack of consent that
makes the act wrong. e challenge of criminalising the nonconsensual oenses thus lies
less in the danger of overcriminalising than it does in the need for grading. Although vir-
tually all acts of nonconsensual sex will be wrong, they will not all deserve equal punish-
ment; we will need a means of distinguishing the more serious acts from the less serious
ones.
We do this, in the case of the nonconsensual oenses, by creating a range of sepa-
rate oenses with separate punishments. Taking the English Sexual Oences Act 2003
as a model, we can see that Sections 2 and 3 involve nonconsensual penetration, Section
4 involves other kinds of nonconsensual touching, Section 66 involves nonconsensual
exposure, Section 67 involves nonconsensual watching, and so forth. With the exception
of sexual assault,137 which serves as a kind of safety-net provision, we need not be con-
cerned with general ‘what counts as sexual conduct’ issues.
And what of prostitution? Would we expect its ‘sexual activity’ element to be dened
narrowly, in a manner that is reminiscent of adultery and adult incest, or would we expect
it to follow the broad approach to dening sex we have seen in the context of the non-
consensual oenses taken as a whole? at, in a sense, is the central puzzle we have been
grappling with in this article. ose who view the selling of sex as an essentially consen-
sual act will want to criminalise it—assuming they do—exclusively out of concern with
matters that are extraneous to consent and autonomy, such as promoting public health
and preventing violence. eir denition of what counts as ‘sex’ is likely to be a narrow
one. By contrast, those who believe that prostitution is inherently coercive and exploit-
ative, and therefore essentially nonconsensual, will tend to view almost every commercial
137 Under Section 3, sexual assault is dened to include non-consensual touchings of any part of
the victim’s body with any part of the oender’s body or with anything else, provided that the
‘the touching is sexual. A touching would, in turn, be considered ‘sexual’ ‘if a reasonable person
would consider that it was of a sexual ‘nature’ or that its ‘circumstances’ or ‘purpose’ were sexual.
Bergen Journal of Criminal Law and Criminal Justice • 1/2016
101
sex transaction, both penetrative and non-penetrative, with suspicion. eir tendency
will be to dene the sex in prostitution more broadly.
Eorts to dene the second element in prostitution—that of ‘exchange’—will follow
a similar path. Here we must decide whether to treat cases involving marital sex, ‘oce
romances, ‘sugar daddy’ arrangements, and therapeutic treatment as prostitution. Also
relevant here are cases involving the exchange of sex for non-propertised goods, such as
ocial acts. Whether we ultimately decide to treat such cases as prostitution will depend,
as before, on why we think prostitution is wrong or should be a crime in the rst place.
ose who are concerned primarily with preventing disease and violence will tend, once
again, to prefer a narrow denition of exchange. ose who focus mainly on preventing
objectication, commodication, exploitation, and oppression will likely favour a broad-
er approach.
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... The ways in which sex work is discursively constructed in contemporary society is also problematic. For example, 'real' sex is currently defined as penis-vagina (or other forms of bodily) penetration (Green, 2016). This remarkably phallocentric approach leads to categorical issues when jobs commonly described as being within the sex industry involve no penetrative sex (or body contact) whatsoever -for example, glamour models or phone sex operators (Miller, 2004). ...
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L'A. explique la these de l'asymetrie, selon laquelle les marches du sexe et de la reproduction sont asymetriques aux autres marches du travail, par le fait que la prostitution contribue a renforcer l'inegalite sociale entre les hommes et les femmes. Pour l'A., ce n'est pas tant la question de la decriminalisation de la prostitution qui importe, mais bien celle de l'egalite des sexes
edu/entries/feminist-sex-markets/#Pro. For further discussion and critique, see Nussbaum, 'Whether from Reason or Prejudice': Taking Money for Bodily Services Satz, Markets in Women's Sexual Labor
  • Shrage
Shrage, Feminist Perspectives on Sex Markets, Stanford Encyclopedia of Philosophy (first published, 2004), http://plato.stanford.edu/entries/feminist-sex-markets/#Pro. For further discussion and critique, see Nussbaum, 'Whether from Reason or Prejudice': Taking Money for Bodily Services, 27 The Journal of Legal Studies 693, 695 (1998); Satz, Markets in Women's Sexual Labor, 106 Ethics 63, 70 (1995); and Radin, Contested Commodities: The Trouble with the Trade in Sex, Children, Body Parts, and Other Things (Harvard U. Press, 2001).
Art. 134, ¶ 62 Even in jurisdictions with no-fault divorce proceedings, evidence regarding adultery remains relevant with respect to property distributions, spousal support, and child custody. Pfeiffer, Virtual Adultery: No Physical Harm, no Foul?
Uniform Code of Military Justice, Art. 134, ¶ 62. Even in jurisdictions with no-fault divorce proceedings, evidence regarding adultery remains relevant with respect to property distributions, spousal support, and child custody. Pfeiffer, Virtual Adultery: No Physical Harm, no Foul?, 46 University of Richmond L. Rev. (2012), pp. 667, 675.
Yet other statutes say that it is a crime to 'marry' a relative
  • Ibid
Ibid. Yet other statutes say that it is a crime to 'marry' a relative.
Americans Continue to Shift Left on Key Moral Issues
  • Newport
Newport, Americans Continue to Shift Left on Key Moral Issues, Gallup.com (2015), http:// www.gallup.com/poll/183455/once-taboo-behaviors-acceptable.aspx.
An Affair to Remember: The State of the Crime of Adultery in the Military
  • Comment Annuschat
Annuschat, Comment, An Affair to Remember: The State of the Crime of Adultery in the Military, 47 San Diego L. Rev. (2010), p. 1161.