The State of Hawaii is currently in the process of reforming its out of date laws on prostitution. The main area of contention is whether to revoke a current law which exempts police officers from prosecution if they engage in sexual intercourse with a sex worker.
The initial response was to revoke the exemption, however the Honolulu Police Department gave evidence to the State House claiming that a change in the law in this regard would hinder their ability to catch and prosecute offenders because prostitutes would start a process they refer to as a “cop check” whereby payment would be demanded after intercourse, apparently in the knowledge that a police officer would be unable to go through with the necessary action prior to the financial transaction. The issue goes before the State Senate’s Judiciary Committee on the 28th March 2014.
The apparent claim that it is necessary to catch someone ‘in the act’ in order to be able to build a successful case against them is utterly ludicrous. If that were the situation then an amendment to the law by way of correction would be the appropriate response, not to send undercover officers out to drop their trousers.
As The Pacific Alliance to Stop Slavery stated in response to this issue, Hawaii is, almost certainly, the only State to allow officers to have sex with prostitutes. Other States such as: Texas, Illinois, California and New York, who also have high levels of prostitution do not have trouble building a case for prosecution and have been very successful. In truth an offence is committed when the act and a price is agreed, therefore there is no need for the officers to actually carry out the act. To be slightly facetious; are officers lining up to be punched in the face to provide first hand evidence of an assault suspect’s propensity to violence? I do not believe that they are; instead they are gathering evidence through other means.
A further argument against the current law is that by allowing officers to have sex with prostitutes they are further victimising them. It is widely accepted that many people do not enter prostitution of their own volition; it is heavily associated with modern slavery, human trafficking, enforced drug use, and general abuse.
Undercover officers having sexual intercourse with these women (or men although this is somewhat less likely) is to use them as a tool by which better evidence can be obtained against them. This is surely not ethical in the least. Furthermore such actions would undoubtedly irrevocably damage the women’s perception and trust in the police, who they could reasonably have expected to act as saviours from their aforementioned abusers, rather than see them join in, citing a legal necessity to justify their actions.
There is also a theoretical problem of legitimacy. Can a police service which allows its officers to engage in illegal (at least for anyone else) sexual activity, with quite possibly vulnerable people, be considered a legitimate crime fighting organisation? If the police are the State sanctioned enforcers of the legal code of practice which all citizens are expected to live and abide by, then they must not only have legitimacy bestowed upon them by an authority with the actual and symbolic power to do so, but must also appear to be acting through legitimate means to achieve their purpose of enforcing the law.
Whether or not law should be or is in fact based in morality, is a debate with which I do not wish to engage at this time, but it is difficult to argue that law in general is not to some degree based on a moral code of acceptability. There are of course exceptions which have little or nothing to do with morality, and not everyone shares the same morality.
In the case of consensual prostitution, free from any form of coercion, the willing exchange of money in return for sexual acts, providing appropriate precautions are taken, does no direct harm to either individual and as such it is arguably illegal not because of harm, but because it is immoral. Forced prostitution, where consent is not present due to direct or indirect coercion, is an entirely different matter, it goes beyond prostitution and can be legally viewed and either serious sexual assault or rape.
The point that I wish to make is that, the police are intervening in order to obtain evidence to prosecute the prostitute for an act, which in isolation disregards the circumstances which may have led up to their present situation and may not be of their own doing. By disregarding all but the act of prostitution the officer is engaging in an arguably immoral act in the name of morality to prosecute the other participant for conducting the same immoral act. The moral high ground, so to speak, is definitely lost, and I cannot begin to see how the police maintain any measure of legitimacy in such a situation.
Intrinsically linked to legitimacy is accountability, it being difficult to have one without the other. Disclosure law in Hawaii makes it impossible to know whether an officer of the Honolulu Police Department has faced misconduct charges in relation to the exemption. Nor could they reveal internal procedures to provide any additional information, as this would reveal the techniques used (no pun intended) and damage future investigations. If this ‘tool’ is to be used, then transparency must be paramount. It will not be seen to be legitimate unless the department can be reasonably open about its use, without handing out personal information or specific details. Without transparency the potential for accusations of and actual abuses of the system are present, which will have a negative impact on the perceived legitimacy of the police.
Present within the past few months is evidence that sex workers are vulnerable to abuses by police officers. In California a former officer is due to be sentenced for raping two prostitutes in his police car while on patrol, and an ex-officer in Philadelphia is standing trial accused of forcing two prostitutes to take drugs and perform oral sex on him at gunpoint.
These are isolated cases but they highlight the vulnerability of sex workers. They are often the victims of heinous crimes which lead to their becoming prostitutes, and this vulnerability should not be exploited by the police to further victimise those undeserving of such treatment. A broader view and approach to tackling those who control and truly profit from sex work might be a far more effective and much fairer way of dealing with the situation.