Jan 2017

Should US Physicians Support the Decriminalization of Commercial Sex?

Emily F. Rothman, ScD
AMA J Ethics. 2017;19(1):110-121. doi: 10.1001/journalofethics.2017.19.1.sect1-1701.


According to the World Health Organization, “commercial sex” is the exchange of money or goods for sexual services, and this term can be applied to both consensual and nonconsensual exchanges. Some nonconsensual exchanges qualify as human trafficking. Whether the form of commercial sex that is also known as prostitution should be decriminalized is being debated contentiously around the world, in part because the percentage of commercial sex exchanges that are consensual as opposed to nonconsensual, or trafficked, is unknown. This paper explores the question of decriminalization of commercial sex with reference to the bioethical principles of beneficence, nonmaleficence, and respect for autonomy. It concludes that though there is no perfect policy solution to the various ethical problems associated with commercial sex that can arise under either criminalized or decriminalized conditions, the Nordic model offers several potential advantages. This model criminalizes the buying of sex and third-party brokering of sex (i.e., pimping) but exempts sex sellers (i.e., prostitutes, sex workers) from criminal penalties. However, ongoing support for this type of policy should be contingent upon positive results over time.


The term “commercial sex” is a depoliticized way to refer to sexual services that are exchanged for money or goods, also known as sex work or, in some cases, prostitution [1]. Commercial sex might involve consensual transactions or be the result of force, fraud, or coercion (i.e., trafficking, exploitation). The form of commercial sex also known as prostitution was widely tolerated in the US until the turn of the twentieth century, when feminists, Christians, and physicians united to oppose it [2]. In 1906, the Journal of the American Medical Association published an opinion that a full criminal ban on prostitution was the most appropriate solution to the mounting problem of venereal disease because experiments in government-regulated prostitution in Europe had failed [3]. Today the form of commercial sex also known as prostitution is a criminal activity in all 50 states, with the exception of some sparsely populated counties of Nevada, where it is legal in local government-regulated brothels [4].

In the contemporary discourse about commercial sex, the phrase “person who sells sex” or “seller” is used to refer to the person who provides the sexual service (i.e., prostitute), the “buyer” is the term used for the person purchasing sex (i.e., a john, customer), and “third-party broker” refers to the pimp, madam, or human trafficker who arranges the commercial terms of a sexual encounter between other people [1, 5-7]. In this paper, the term “seller” is used to describe all people who provide sexual services, whether they are consenting or not.

Despite global controversy about the regulation of commercial sex, there is widespread agreement that whether trafficked or not, sellers are at risk for a range of negative health and social consequences including homicide [8], physical assault [9], sexual assault [10], sexually transmitted infections (STIs) [11], and stigma [12, 13]. Trafficked and nontrafficked sellers are also at increased risk for substance misuse, posttraumatic stress disorder, and suicide [11, 14-20], and recent research has begun to explore the health consequences for children born to either consenting or trafficked sellers [21]. The risks of engaging in commercial sex are amplified for “street” sellers as compared to “indoor” sellers [9, 22] and, in the US, for people of color and transgender sellers [23, 24].

In this paper, the ethical considerations of changing the legal status of commercial sex in the US are considered in light of the several unknowns, including the percentage of commercial sex sellers who are trafficking victims or financially induced to sell sex and the lack of empirical information about the impact of decriminalizing commercial sex in the US context compared to other nations. The pros and cons of the four primary legislative choices—criminalization, legalization, decriminalization, and the Nordic model—are also explored.

Fundamental Ethical Problems in Commercial Sex Policy Decision Making

Commercial sex policy decision making must address a number of ethical problems. Here, we discuss three: understanding of consent, financial inducements, and vulnerability.

Defining sexual consent in commercial contexts. One pressing problem is that there are no trustworthy estimates of the percentage of sellers who sell sex willingly in the US or any nation. A seller may be doing so with (a) consent; (b) financially induced consent; (c) nonconsent because of force, fraud, or coercion by a third party (i.e., being trafficked); or (d) as a minor child, which in the US is automatically considered trafficking victimization [25]. There are numerous reasons why it’s virtually impossible to estimate the percentage of sellers who fall into each of these categories, a barrier that limits evidence-based decision making [26-28]. Moreover, the assumption that sellers can be classified under one of these four categories is predicated on the idea that a person either consents or does not consent to being a seller. A more nuanced perspective on the concept of consent as it applies to commercial sex is that people might consent to a particular paid sexual encounter but not consent to specific sex acts that are forced upon them during that encounter. Whether people who engage sexually should be regarded as consenting or nonconsenting is important because opinions about decriminalization assume that most paid sexual encounters are entirely consensual from start to finish.

Understanding financial inducements. Amnesty International considers people “who live on the outskirts of society who are forced into sex work” to be consenting sellers because “it may be their only way to earn a living” [29]. The idea that financial inducements are inherently coercive, and thus exploitative, has been a central consideration in the debate about whether people should be permitted to sell their own organs [30]. Commercial sex has been referred to as “renting an organ” [31], which raises an ethical question: For those living in poverty, are financial inducements to permit someone to have sexual access to their body inherently coercive, given that the sexual contact would be unwanted in the absence of payment and that they will receive no other benefit from the transaction? According to Amnesty International, poverty does not necessarily undermine a person’s capacity to consent, which is a position at odds with the Belmont Report, which states that undue influence “occurs through an offer of an excessive, unwanted, inappropriate or improper reward or other overture in order to obtain compliance” [32].

Vulnerability. A related ethical problem is that there has been no consideration of the capacity of people who are cognitively or psychiatrically impaired, or intoxicated, to consent to paid sex. In medicine, it is accepted that there is heterogeneity in the capacity of people with psychiatric and cognitive disorders to consent to medical treatment or research [33, 34], and special protections are put in place to safeguard them. People with psychiatric and cognitive disorders also sell sex [35] and might even be overrepresented among sellers [36]. Some sellers also drink and use drugs and therefore might be impaired when negotiating paid sexual encounters. In fact, one strategy that traffickers use to subdue their captives is to force alcohol and other drugs on them [37]. Many US states now recognize that people’s sexual decision making can be impaired due to intoxication and that sex with a person too intoxicated to consent constitutes rape [38, 39]. Ethicists are needed, then, to help explore the question of whether it is possible for intoxicated people, or people with severe psychiatric and cognitive disorders, to consent to sell sex.

Policy Options for Addressing Commercial Sex

There are four main policy options for addressing commercial sex. The first option is criminalization, which means that buyers, sellers, and third-party brokers (“pimps”) can all be penalized. The second option is the criminalization of buying or brokering sex, but not selling it (the Nordic model). The third option is legalization, which is distinct from decriminalization because it entails some form of government regulation such as requiring sellers’ permits. The fourth option is full decriminalization, which entails having no restrictions on commercial sex other than usual business laws.

Criminalization. The primary rationale for supporting this model is that it restricts the size of both the legal and illegal market and therefore should reduce trafficking, although the evidence to support this contention has been criticized [40-42]. Some form of criminalization appeals to those who are concerned that people who are economically dependent on paid sexual encounters have insufficient power to stop those encounters, or to object to aspects of them, once the encounters have been initiated and are therefore subjected to frequent sexual assault and rape. From this perspective, supporting some form of criminalization has the potential to reduce harm to those who are financially induced or coerced. It also appears that criminalization discourages buyers [43, 44], reducing the demand for sellers, which in turn worsens commerce for traffickers and reduces trafficking [45]. However, arrest can compound adversity for sellers, particularly those from marginalized populations [46], and enforcement can be selectively used against buyers and brokers [47] in a racist way. Criminalization can also create dangerous conditions in which sellers must collude with buyers and brokers to hide them from law enforcement [48]. On the whole, there appears to be little advantage to criminalizing the acts of both buyers and sellers.

The Nordic model. The Nordic model, which was first employed in Sweden, is now endorsed by the European Parliament. Although there is variation in how the Nordic model is implemented across countries [49], it is often promoted by those involved in anti-trafficking advocacy [50, 51]. Four separate studies have found that sex trafficking is reduced under this model [40, 41, 45, 52], and some analyses indicate that the Nordic model provides better support services to sellers than other systems [53, 54], although the results have been called into question [42, 48]. One criticism of the Nordic model is that any supposed benefit of legalizing selling is offset by the fact that buyers are still penalized, which means that sellers must continue to meet buyers under dangerous conditions [55]. However, this model has two potential advantages from the perspective of medical ethics. Sellers, including those who have been trafficked, receive many of the putative benefits of decriminalization—such as not being arrested or jailed—but the conditions discourage traffickers. The second advantage is that the model does not signal to the public that the commodification of sex is endorsed by the government. These advantages could appeal to physicians who want to balance the benefits and risks of state sanctions and try to cultivate more robust responses to patients they suspect are being trafficked.

Legalization. Under this model, either sellers or buyers or both parties can be required to obtain licenses, undergo health examinations, operate in specific zones, and comply with other restrictions. The theoretical benefits of legalization are that neither buyers nor sellers risk criminal penalty, but there are nevertheless strategies in place to control STI transmission, improve sellers’ safety, and quash trafficking. Primary objections are that trafficking increases [40, 45] and that sellers remain at unacceptably heightened risk of violence whether commercial sex is criminalized or legalized and may be harassed by government agents [56] and exploited by brokers [57]. Like criminalization, legalization is not clearly consistent with beneficence; complying with government regulation can be oppressively burdensome for individual sellers and the benefit to the community in terms of reduced STI transmission remains questionable, given that there is still too little evidence demonstrating conclusively that legalization is an effective method of preventing epidemics.

Decriminalization. This model is preferred by most sellers’ political advocacy groups because it is the least restrictive and thus consistent with the principle of autonomy [58]. For example, the World Health Organization (WHO) and Amnesty International have taken the position that every nation in the world should repeal or refrain from introducing any law that criminalizes any aspect of consensual commercial sex between adults, irrespective of local conditions [6, 29]. It should be noted, however, that sellers have diverse opinions about regulation [59, 60]. The primary arguments in favor of decriminalization are that it reduces HIV and other sexually transmitted infections by reducing violence and enabling more consistent condom use [61, 62], offers sellers police protection [63], reduces stigma, could afford sellers employment benefits such as sick leave and workers’ compensation [64], and realizes the rights of adults to choose to sell sex. Some have also argued that decriminalizing commercial sex may improve consensual sellers’ ability to aid trafficking victims whom they meet in commercial sex venues [58]. However, counter to expectations, the decriminalization or legalization of commercial sex in New Zealand, the Netherlands, and Germany has not resulted in uniformly safer conditions [65, 66], successful seller unions [64], destigmatization [67], reduced trafficking victimization [68], or substantially increased seller satisfaction [66]. Moreover, countries where commercial sex is not criminal appear to experience higher trafficking inflows, according to economists’ analyses [40, 69]. An additional concern is that from a social norms perspective, it is not yet clear if decriminalization increases the public’s moral disengagement, exacerbates the sexual objectification of people, or counteracts efforts to educate the public about the importance of consent during sexual encounters. Because these effects could increase health disparities, these possibilities are important to investigate.


Although paternalistic approaches in matters of public health are always controversial, it has been argued that “too little state intervention in the cause of improving population health can violate individuals’ rights, just as too much can” [70]. On the question of decriminalizing the form of commercial sex known as prostitution in the US, the potential harms to individuals and the public must be considered as carefully as the benefits of the expansion of individuals’ rights. The commercial sex criminalization and legalization models seem largely inconsistent with the principles of beneficence, nonmaleficence, and autonomy, because these policies disempower and burden sellers. Moreover, support for decriminalization could be inconsistent with the principle of nonmaleficence if it encourages trafficking and puts vulnerable people at increased risk for harm. The Nordic model, though imperfect, offers the advantage of eliminating punishments for sellers while potentially preventing the expansion of the commercial sex market and limiting the number of people trafficked. If new commercial sex policies of any type are enacted in US states, rigorous evaluation of their impact will be critically important and should be the basis for future decision making.


  1. Overs C. Sex workers: part of the solution: an analysis of HIV prevention programming to prevent HIV transmission during commercial sex in developing countries. Published 2002. Accessed October 24, 2017.

  2. Smolak A. White slavery, whorehouse riots, venereal disease, and saving women: historical context of prostitution interventions and harm reduction in New York City during the Progressive Era. Soc Work Public Health. 2013;28(5):496-508.
  3. Kelly H. The regulation of prostitution. JAMA. 1906;46(6):397-401.
  4. Brents BG, Hausbeck K. Violence and legalized brothel prostitution in Nevada: examining safety, risk, and prostitution policy. J Interpers Violence. 2005;20(3):270-295.
  5. Vardaman SH, Raino C. Prosecuting demand as a crime of human trafficking: the Eighth Circuit decision in United States v Jungers. Univ Memphis Law Rev. 2013;43(4):917.

  6. World Health Organization. New WHO guidelines to better prevent HIV in sex workers. December 12, 2012. Accessed November 30, 2016.

  7. Swedish Institute. Selected extracts of the Swedish government report SOU 2010:49: the ban against the purchase of sexual services. An evaluation 1999-2008. Published 2010. Accessed October 24, 2017.

  8. Potterat JJ, Brewer DD, Muth SQ, et al. Mortality in a long-term open cohort of prostitute women. Am J Epidemiol. 2004;159(8):778-785.
  9. Church S, Henderson M, Barnard M, Hart G. Violence by clients towards female prostitutes in different work settings: questionnaire survey. Br Med J. 2001;322(7285):524-525.
  10. Oselin SS, Blasyak A. Contending with violence: female prostitutes’ strategic responses on the streets. Deviant Behav. 2013;34(4):274-290.
  11. Romero-Daza N, Weeks M, Singer M. Conceptualizing the impact of indirect violence on HIV risk among women involved in street-level prostitution. Aggress Violent Behav. 2005;10(2):153-170.
  12. Decker MR, Crago AL, Chu SK, et al. Human rights violations against sex workers: burden and effect on HIV. Lancet. 2015;385(9963):186-199.
  13. Foley EE. Regulating sex work: subjectivity and stigma in Senegal [published online ahead of print June 6, 2016]. Cult Health Sex. doi:10.1080/13691058.2016.1190463.

  14. Argento E, Muldoon KA, Duff P, Simo A, Deering KN, Shannon K. High prevalence and partner correlates of physical and sexual violence by intimate partners among street and off-street sex workers. PLoS One. 2014;9(7):e102129. Accessed November 23, 2016.

  15. Brody S, Potterat JJ, Muth SQ, Woodhouse DE. Psychiatric and characterological factors relevant to excess mortality in a long-term cohort of prostitute women. J Sex Marital Ther. 2005;31(2):97-112.
  16. Cohan D, Lutnick A, Davidson P, et al. Sex worker health: San Francisco style. Sex Transm Infect. 2006;82(5):418-422.
  17. El-Bassel N, Witte SS, Wada T, Gilbert L, Wallace J. Correlates of partner violence among female street-based sex workers: substance abuse, history of childhood abuse, and HIV risks. Aids Patient Care STDS. 2001;15(1):41-51.
  18. Ling DC, Wong WCW, Holroyd EA, Gray A. Silent killers of the night: an exploration of psychological health and suicidality among female street sex workers. J Sex Marital Ther. 2007;33(4):281-299.
  19. Pedersen PV, Arnfred A, Algren MH, Juel K. Comparison of health behaviors among women brothel workers to those of the general population of women in Denmark. Women Health. 2016;56(4):376-394.
  20. Quinet K. Prostitutes as victims of serial homicide: trends and case characteristics, 1970-2009. Homicide Stud. 2011;15(1):74-100.
  21. Servin AE, Strathdee S, Muñoz FA, Vera A, Rangel G, Silverman JG. Vulnerabilities faced by the children of sex workers in two Mexico-US border cities: a retrospective study on sexual violence, substance use and HIV risk. AIDS Care. 2015;27(1):1-5.
  22. Prior J, Hubbard P, Birch P. Sex worker victimization, modes of working, and location in New South Wales, Australia: a geography of victimization. J Sex Res. 2013;50(6):574-586.
  23. Hankel J, Dewey S, Martinez N. Women exiting street-based sex work: correlations between ethno-racial identity, number of children, and violent experiences. J Evid Based Soc Work. 2016;13(4):412-424.
  24. Hoffman BR. The interaction of drug use, sex work, and HIV among transgender women. Subst Use Misuse. 2014;49(8):1049-1053.
  25. Victims of Trafficking and Violence Protection Act of 2000, Pub L No. 106-386, 114 Stat 1464, 1469. Accessed November 22, 2016

  26. Fenton KA, Johnson AM, McManus S, Erens B. Measuring sexual behaviour: methodological challenges in survey research. Sex Transm Infect. 2001;77(2):84-92.
  27. Savona E, Stefanizzi S, eds. Measuring Human Trafficking: Complexities And Pitfalls. New York, NY: Springer Verlag; 2007.

  28. Weitzer R. Sex trafficking and the sex industry: the need for evidence-based theory and legislation. J Crim Law Criminol. 2012;101(4):1337-1369. Accessed November 23, 2016.

  29. Murphy C. Sex workers’ rights are human rights. Amnesty International. Published August 14, 2015. Accessed October 2, 2016.

  30. Adair A, Wignore S. Paid organ donation: the case against. Ann R Coll Surg Eng. 2011;93(3):191-192.
  31. Farley M. “Renting an organ for 10 minutes”: what tricks tell us about prostitution, pornography, and trafficking. Accessed November 23, 2016.

  32. National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: ethical principles and guidelines for the protection of human subjects of research. Published April 18, 1979. Accessed November 23, 2016.

  33. Carlson L. Research ethics and intellectual disability: broadening the debates. Yale J Biol Med. 2013;86(3):303-314.
  34. Van Staden CW, Krüger C. Incapacity to give informed consent owing to mental disorder. J Med Ethics. 2003;29(1):41-43.
  35. Palermo MT, Bogaerts S. Sex selling and autism spectrum disorder: impaired capacity, free enterprise, or sexual victimization? J Forensic Psychol Pract. 2015;15(4):363-382.

  36. Jung YE, Song JM, Chong J, Seo HJ, Chae JH. Symptoms of posttraumatic stress disorder and mental health in women who escaped prostitution and helping activists in shelters. Yonsei Med J. 2008;49(3):372-382.
  37. Cole J, Anderson E. Sex trafficking of minors in Kentucky. Published August 2013. Accessed October 23, 2016.

  38. National District Attorneys Association. Prosecuting alcohol-facilitated sexual assault. Published 2007. Accessed October 23, 2017.

  39. Tracy CE, Fromson TL, Long JG, Whitman C. Rape and sexual assault in the legal system. Paper presented at: National Research Council of the National Academies Panel on Measuring Rape and Sexual Assault in the Bureau of Justice Statistics Household Surveys Committee on National Statistics; June 5, 2012; Washington, DC. Accessed November 16, 2016.

  40. Cho SY, Dreher A, Neumayer E. Does legalized prostitution increase human trafficking? World Dev. 2012;41:67-82.

  41. European Parliment. National Legislation on Prostitution and the Trafficking in Women and Children Published 2005. Accessed September 9, 2016.

  42. Dodillet S, Östergren P. The Swedish Sex Purchase Act: claimed success and documented effects. Paper presented at: International Workshop: Decriminalizing Prostitution and Beyond: Practical Experiences and Challenges; March 3-4, 2011; The Hague, The Netherlands. Accessed November 22, 2016.

  43. Weisburd D, Wyckoff LA, Ready J, Eck JE, Hinkle JC, Gajewski F. Does crime just move around the corner? A controlled study of spatial displacement and diffusion of crime control benefits. Criminology. 2006;44(3):549-592.
  44. Weisel DL. Street prostitution in Raleigh, North Carolina: a final report to the US Department of Justice, Office of Community Oriented Policing Services on the Field Applications of the Problem-Oriented Guides for Police Project. Published August 2004. Accessed November 22, 2016.

  45. Jakobsson N, Kotsadam A. The law and economics of international sex slavery: prostitution laws and trafficking for sexual exploitation. Eur J Law Econ. 2013;35(1):87-107.
  46. Butler CN. The racial roots of human trafficking. UCLA Law Rev. 2015;62(6):1464-1514.
  47. Brents B, Hausbeck K. State-sanctioned sex: negotiating formal and informal regulatory practices in Nevada brothels. Sociol Perspect. 2001;44(3):307-332.
  48. Canadian HIVAIDS Legal Network. Sex work law reform in Canada: considering problems with the Nordic model. Published January 2013. Accessed October 24, 2017.

  49. Holmström C, Skilbrei ML. Prostitution in the Nordic countries: conference report, Stockholm, October 16–17, 2008. Copenhagen, Denmark: Nordic Council of Ministers; 2009. Accessed November 22, 2016.

  50. Raymond JG. Trafficking, prostitution and the sex industry: the Nordic legal model. Coalition Against Trafficking in Women. Published July 19, 2010. Accessed October 24, 2016.

  51. Equality Now. Equality Now advocates for “Nordic model” against trafficking and gender inequality. Published December 4, 2012. Accessed October 24, 2016.

  52. Marinova NK, James P. The tragedy of human trafficking: competing theories and European evidence. Foreign Policy Anal. 2012;8:231-253.

  53. Rasmussen I, Strøm S, Hansen SSVW. Evaluering av forbudet mot kjøp av seksuelle tjenester. Published July 17, 2014. Accessed September 9, 2016.

  54. Waltman M. Prohibiting sex purchasing and ending trafficking: the Swedish prostitution law. Mich J Int Law. 2011;33(1):133-157.
  55. Levy J, Jakobsson P. Sweden’s abolitionist discourse and law: effects on the dynamics of Swedish sex work and on the lives of Sweden’s sex workers. Criminol Crim Justice. 2014;14(5):593-607.
  56. Anderson S, Jia JX, Liu V, et al. Violence prevention and municipal licensing of indoor sex work venues in the Greater Vancouver Area: narratives of migrant sex workers, managers and business owners. Cult Health Sex. 2015;17(7):825-841.
  57. Brady D, Biradavolu M, Blankenship KM, . Brokers and the earnings of female sex workers in India. Am Sociol Rev. 2015;80(6):1123-1149.
  58. Sex Workers Project responds to Amnesty International policy on decriminalizing sex work [news release]. New York, NY: Sex Workers Project; May 27, 2016. Accessed October 24, 2016.

  59. Lutnick A, Cohan D. Criminalization, legalization or decriminalization of sex work: what female sex workers say in San Francisco, USA. Reprod Health Matters. 2009;17(34):38-46.
  60. Villacampa C, Torres N. Effects of the criminalizing policy of sex work in Spain. Int J Law Crime Justice. 2013;41(4):375-389.
  61. Shannon K, Csete J. Violence, condom negotiation, and HIV/STI risk among sex workers. JAMA. 2010;304(5):573-574.
  62. Cunningham S, Shah M. Decriminalizing indoor prostitution: implications for sexual violence and public health. National Bureau of Economic Research working paper 20281. Published July 2014. Accessed November 22, 2016.

  63. Armstrong L. Screening clients in a decriminalised street-based sex industry: insights into the experiences of New Zealand sex workers. Aust N Z J Criminol. 2014;47(2):207-222.
  64. Gall G. Sex Worker Unionization: Global Developments, Challenges and Possibilities. New York, NY: Palgrave MacMillan; 2016.

  65. Kavemann B, Rabe H, Fischer C. The act regulating the legal situation of prostitutes—implementation, impact, current developments. Berlin, Germany: SoFFI K; 2007. Accessed November 22, 2016.

  66. How legalizing prostitution has failed. Spiegel. May 30, 2013. Accessed September 9, 2016.

  67. New Zealand Ministry of Justice. Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003. Wellington, New Zealand; 2008. Accessed November 22, 2016.

  68. Danailova-Trainor G, Belser P. Globalization and the illicit market for human trafficking: an empirical analysis of supply and demand. Geneva, Switzerland: International Labour Office; 2006. Accessed November 22, 2016.

  69. Lee S, Persson P. Human trafficking and regulating prostitution. Stockholm, Sweden: Research Institute of Industrial Economics; 2013. IFN working paper 996. Accessed November 22, 2016.

  70. Wilson J. The right to public health. J Med Ethics. 2016;42(6):367.


AMA J Ethics. 2017;19(1):110-121.



The viewpoints expressed in this article are those of the author(s) and do not necessarily reflect the views and policies of the AMA.