Prostitution and Minnesota Law

How can we best understand prostitution?  It involves two important aspects of human existence: sexuality and money.  Given the controversy each of these inspire, can it be any surprise that prostitution has been controversial as well?  Prostitution has likely been around longer than money has been – quite a long while.  Throughout the history of the world, and among its many peoples, there have been many different views on prostitution.

Do we believe that social harms are caused by our sexuality, our money, our prostitution?  Put that way – yes, we do.  We have a social consensus that these do cause or contribute to social harms.  This begs the question, then, what best to do about it?  Can the laws play a role in reducing these harms?  If so, how?  Apart from the best legal approach to reducing social harms related to prostitution, what are the laws currently in Minnesota, in the United States?

Social Harms of Prostitution Are Reduced in the Netherlands

 Malum Prohibitum

Criminal laws can divided into malum in se and malum prohibitum.

Malum In Se is literally “Evil in itself.”  A criminal statute addressing malum in se is one which is naturally evil, like murder, theft, etc.  Crimes at common law were generally mala in se.   An offense malum prohibitum, however, is not naturally an evil, but by legal fiat becomes one as a consequence of its being forbidden; like some gambling, drugs, which have become unlawful in consequence of being forbidden.

Does a law forbidding something make it go away, or reduce the social harms that thing may cause?  The examples of drug prohibition laws in the United States show us that the answer is “no.”  In fact, criminalizing disfavored social practices like alcohol and other drugs, gambling, and prostitution has greatly increased social harms associated with them.

Which social harms associated with prostitution can be attributed to the act of prostitution alone, as opposed to the underground economy created by the criminal laws?  Considering that question further, let’s make a list of social harms commonly associated with prostitution:

  1. Coercion.  Where prostitution is legal, there is little or no coercion of sex workers, compared to places where it is unregulated and criminalized.  Human trafficking thrives within a context of criminalized prostitution.  Where prostitution is legal and regulated, the hypocritical double standard and corruption issues do not provide a barrier to cracking down on kidnapping and human trafficking.  The use of drugs, threats, and violence to coerce sex workers is enabled and encouraged by criminalization.
  2. Exploitation of Children.   Where legal and regulated, it is rare to find children or underage people working in the sex industry.  In Minnesota, as in other places where it is crime, anything goes and prostitutes commonly begin before the age under 18.
  3. Nuisance.  In recent years, prostitution has been called a “neighborhood livability crime.”  Were it legal and regulated it could be zoned into a red light district, as pornography has been in Minneapolis.  Another recent trend, the move of prostitution from the streets to the web, has reduced this issues a bit in recent years.
  4. Corruption.
  5. The above are all direct products of criminalization; while those below are related to the act of prostitution, but aggravated by criminalization.
  6. Public Health.  Certain diseases are commonly spread through sexual activity, such as AIDS.  In places where prostitution is legal, regulation enforces frequent medical examinations, education, and makes police and other help more available to resist coercion.  Drug addiction overlaps with prostitution more where it is criminalized.
  7. Morality.  Many view the act of prostitution as immoral and unethical as a general matter, though compared to others, a minor sin.  Of course, many things just short of it are viewed differently.  What about compassionate use of prostitution for the physically handicapped, etc.?  Should the ‘law of man’ allow one to exercise virtue, and leave the domain of saving souls to God’s law?  By binding someone’s hands, do you not prevent them from exercising the free will to be virtuous?  Which is more immoral, prostitution or criminal laws creating and aggravating all of these social harms?

Minnesota Laws on Prostitution

Prostitution is an unregulated crime in Minnesota, part of the underground economy.  Minnesota’s criminal statutes on prostitution address the both the common and the unusual.

By far the most common prostitution prosecutions in Minnesota are those against would be customers and providers.  These are generally the result of police sting operations, which employ deception.  Traditionally these began on the streets, often motor vehicles, or in storefronts or other places.  In recent years, they often begin online over the internet, for example on Craigslist, Backpage or Rubmaps.  These are generally charged as misdemeanor or gross misdemeanor crimes.

Felony prostitution crimes in Minnesota are relatively rare, and include those involving people under 18 years old, pimps and promoters, and coercion.  It is likely that the fact that prostitution in Minnesota thrives in an unregulated, underground economy makes it extremely difficult for law enforcement (police) to effectively investigate these kinds of problems.  Ironically, legalizing prostitution would make it vastly easier for law enforcement to target these higher priority problems directly (under 18 years old, pimps and promoters, and coercion).

The author, Thomas C Gallagher is a criminal lawyer who regularly represents people accused of Minnesota prostitution crimes.

7 responses to “Prostitution and Minnesota Law

  1. Tom, great article, analysis. Informative, relevant. Just had a prostitution case in Burnsville. Lost an entrapment motion and argument. Thought there was a good issue….gotta keep trying. Prosecutor said because close proximity to airport it has been a big problem……….

  2. I tend to think prostitution should be legal in the perfect world. Nevertheless, even where legal, many of the “ills” persist, particularly coercion. A few years back, I read a book about the Mustang Ranch in NV. I was struck by the fact that a good portion of the women working there were either coerced (by someone not working at the Ranch, e.g. husband, boyfriend, and even pimps – again, not working at or affiliated with the ranch, and still very much in control). I suspect that even if legalized, those in control would not give it up. Anyway, good thoughts in this post.

    • Thanks for the comment. My view is that, while coercion may always exist, it is markedly reduced where disfavored practices are brought out of the shadows and into the light. There, those coerced can seek help more effectively. And, those who would coerce are deterred as a result of a real threat of consequences. This is the veiw of “harm reduction” – that it is better to pragmatically reduce social harms; than to preserve criminalization as a “statement” of moral condemnation and assume an implicit or stated attitude of indifference to the disadvantaged who suffer as a result.

  3. I agree with Patrick there is always going to be a certain amount of coercion and that is what should always be a concern. There was a civil claim against sex traffickers that allowed for direct claims by those that were trafficked that could have helped a lot. Hopefully, a better governor will look at remedies that make sense.

  4. Jackie Carpenter

    I, too, tend to think that prostitution should be legalized. At the end of the day, you have grown people consenting to do an act. Now if you remove consent for any reason, I would not deem that prostitution, but rather rape.

  5. Tom – excellent overview. Prohibition of gambling, small loans, drugs, prostitution and other things puts those activities into the hands of professional criminals and provides a source of economic power to them. I would rather see them broke and relegated to committing Malum in Se crimes. The religious and moral arguments are the only basis that I can think of to support the statute – except maybe “public policy” to provide stability to traditional marriage and monogamous relationships and their children. Thus a Control over male sexuality and male economic power – if you want sex Mr. Male you must conform to an approved type of relationship- usually involving committment – and a reduction or cessation of sex after time. Those relationships have historically involved a re-distribution of wealth from male to female beyond that needed for child rearing. Prostitution short circuits this society wide scheme. I would rather see sexual and economic freedom and parity for both genders.

  6. As a former prostitute/escort I am of course of the opinion that it should be legal. Quite a few of my customers were men that just didn’t have the time or the desire to go out to bars and pick up women, and some just weren’t able to get a girl who was physically attractive enough for them. One of my regular clients had early onset Parkinson’s, and although he was a nice guy, he could barely speak because of his severe stuttering. How is someone like that supposed to go pick up women? So is he just supposed to go without when there is someone like me who would be perfectly happy to provide that service to him? It’s also quite dangerous because it is unregulated. If you end up with someone violent, you are completely at their mercy. I would have loved to be in a safe situation, like a brothel. Just my opinion.

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