The Model Penal Code & Sex Work Criminalization

Abstract

There is no early colonial common law crime of prostitution, yet societal attitudes today would suggest the criminal suppression of sex work is as old as the United States. Contrary to these assumptions, modern state laws criminalizing prostitution are relatively new and little research has been devoted to understanding these laws’ development despite a century-old debate on whether and how to criminalize sex work.The most influential legal authority, Section 251.2 of the Model Penal Code, is one such example. At least twenty jurisdictions have adopted some portion of Section 251.2 in their prostitution-related criminal statutes, but no scholarship has examined its creation. This Article addresses this dearth of knowledge by conducting archival analysis of the drafting process behind Section 251.2 and reviews the four stated rationalizations for criminalizing prostitution: suppressing venereal disease and organized crime, preventing the corruption of government and law enforcement, and maintaining stability of the home and family. After evaluating available social science research, this Article concludes decriminalizing all aspects of sex work— including sex workers, their clients, and non-exploitative third parties—overwhelmingly better address the stated rationalizations than criminalizing prostitution.