Professional Documents
Culture Documents
John Quigley The Dilemma of Prostitution Law Reform Lessons From The Soviet Russian Experiment PDF
John Quigley The Dilemma of Prostitution Law Reform Lessons From The Soviet Russian Experiment PDF
https://www.copyright.com/ccc/basicSearch.do?
&operation=go&searchType=0
&lastSearch=simple&all=on&titleOrStdNo=0164-0364
THE DILEMMA OF PROSTITUTION LAW REFORM:
LESSONS FROM THE SOVIET RUSSIAN EXPERIMENT
John Quigley*
I. INTRODUCTION
* Professor of Law, Ohio State University. LL.B. Harvard Law School 1966, M.A. Harvard Univer-
sity (Soviet studies) 1966. The author is grateful for assistance in tracing coverage of prostitution in
Soviet periodicals to Ann Bigelow, Associate Editor, and Deborah Hunter, Translator, of the Current
Digest of the Soviet Press. He is grateful for assistance in identifying relevant legal literature to Val
Bolen, Foreign and International Law Librarian, Ohio State University.
I. JULIE PEARL. THE HIGHEST PAYING CUSTOMERS: AMERICA'S CITIES AND THE COSTS OF PROSTITU-
TION CONTROL 769, 790 (1987) ("The composite elements of prostitution control, in terms of both
public fiscal expenditures and decreased protection from other crimes, appear highly disproportionate in
light of the stated priorities of citizens and judges alike, and the apparently minimal benefits
attaine4").
1197
1198 AMERICAN CRIMINAL LAW REVIEW [Vol. 29:1197
engage in work they would not otherwise choose.' Other critics of criminal-
ization assert a right, as a matter of individual liberty, to choose prostitu-
tion as a livelihood.' For those who view prostitution as a product of eco-
nomic necessity, however, decriminalization is not a total solution, because
even when the act of engaging in prostitution is not prohibited by law, the
same economic necessity operates.
A basic issue in developing a legislative approach is to determine why
prostitution should be deemed a negative phenomenon in society, if indeed
it should. Some analysts assert that prostitution is immoral, arguing that
sex should to be confined to the marital relationship or to situations in
which each party participates out of affection for the other." Others oppose
prostitution on the theory that it fosters oppression of women in general,
because prostitution finds males in control of the lives of women.5 In addi-
tion, the possibility of contracting sexually transmittable diseases is a seri-
ous hazard for a woman practicing prostitution. Moreover, prostitutes are
6
frequently the victims of violence.
The debate on prostitution has become international in recent decades.
Increasingly, women are transported from one country to another, and cli-
ents visit other countries in groups.7 At the United Nations, increasing at-
tention has been given to prostitution as a worldwide phenomenon. 8
In the debate on prostitution, it is generally assumed that prostitution,
the "oldest profession," is a fact of life that will always exist. The task of
government policy, under this approach, is how best to contain the negative
consequences of prostitution. One of the few governments to take a differ-
ent approach was that of Soviet Russia. In the years following the 1917
2. ROSEMARY TONG, WOMEN, SEX AND THE LAW 60 (1984) (referring to "pressure that flows from
the structures of capitalism and patriarchy," and stating that "unless poor women are given opportuni-
ties for education and employment, they will not be able to withstand the institutional pressures of
capitalism").
3. David A. J. Richards, Commercial Sex and the Rights of the Person: A Moral Argument for the
Decriminalization of Prostitution, 127 U. PA. L. REV. 1195, 1271-79 (1979). See also Implementation
of Economic and Social Council Resolution 1983/30 on the Suppression of the Traffic in Persons and
of the Exploitation of the Prostitution of Others: Report of the Secretary-General at 7, U.N. Doc. E/
1990/33 (1990) (Netherlands government's view that "[ilt follows from the right of self-determination,
which is enjoyed by an independent adult man or woman on whom no unlawful interference has been
brought to bear, that he or she is at liberty to act as a prostitute and allow another person to profit
from his or her earnings").
4. PATRICK DEVLIN, THE ENFORCEMENT OF MORALS 8-9, 12 (1965).
5. Laurie Shrage, Should Feminists Oppose Prostitution?, ETHICS 347, 352 (1989).
6. Nancy Erbe, Prostitutes: Victims of Men's Exploitation and Abuse, 2 LAW & INEQ. J. 609, 618-
20 (1984). KATHLEEN BARRY, FEMALE SEXUAL SLAVERY 105-06 (1979) (discussing homicides and
rapes of prostitutes).
7. Mary Fish, Deterring Sex Sales to International Tourists: A Case Study of Thailand. South
Korea, and the Philippines, 8 INT'L J. COMP. & APPLIED CRIM. JUSTICE 175 (1984).
8. Laura Reanda, Prostitution as a Human Rights Question: Problems and Prospects of United
Nations Action, 13 HUM. RTS. Q. 202 (1991).
1992] SOVIET PROSTITUTION LAW REFORM 1199
9. John Quigley, The Impact of Soviet Law in the West: Boon or Bane? in LAW AFTER REVOLU-
TION 131, 135-137 (William E. Butler et al. eds., 1988).
10. MAX CHALEIL. LE CORPS PROSTITULf 145-48, 158-61 (1981) (discussing how early capitalism
created poverty which limited women's choices and forced some into prostitution).
11. FREDERICK ENGELS, THE ORIGIN OF THE FAMILY. PRIVATE PROPERTY AND THE STATE (1972).
12. Id. at 125.
1200 AMERICAN CRIMINAL LAW REVIEW [Vol. 29:1197
In the socialized economy that would follow capitalism, the means of pro-
duction would not be passed as private property, and therefore it would no
longer be necessary to ensure that a woman's offspring were her husband's.
Thus, there would be no material basis for the double standard in sexual
morality. Women, moreover, would achieve economic equality with men
and would escape the situation of economic necessity that, under capital-
ism, led to prostitution.
The only other extended treatment of women's status in the Marxist
literature was a book titled Women and Socialism by the German social
democrat August Bebel.' 5 In a chapter titled "Prostitution: A Necessary
Social Institution of the Capitalist World," Bebel relied on Engels and ana-
lyzed prostitution as the complement of marriage: "Marriage presents one
side of the sexual life of the capitalist or bourgeois world; prostitution
presents the other. Marriage is the obverse, prostitution the reverse of the
medal. If men find no satisfaction in wedlock, then they usually seek the
same in prostitution."1 6 Bebel devoted the bulk of his analysis to the pres-
thus obliged to find some supplementary source of income." ' 5 Of these con-
ditions, Bonger found, "the same thing is true of all the countries where
capitalism reigns."2' 4 Charting the incidence of prostitution over time,
Bonger concluded that it increased during economic downswings and de-
creased during economic upswings. 5
Referring to Engels, Bonger found as another corollary of capitalism the
phenomenon that later was termed sexual harassment, which he viewed as
a variant of prostitution because of the economic coercion common to both:
"[T]he proprietors or their foremen by abusing their power force the work-
ing-girls who please them to yield to their desires . . . . The threat of
dismissal suffices to overcome all resistance in nine cases out of ten, if not
in ninety-nine cases out of a hundred." 2
Among the Marxists in Russia, the leading theorist on gender equality
issues was Alexandra Kollontai. Her analysis of prostitution mirrored that
of Engels, Bebel, Goldman, and Bonger. Kollontai said that the increase in
prostitution under capitalism resulted from:
tory of prostitution, but not suggesting socialism as a solution); FLEXNER, supra note 25, at 63 ("The
most striking fact in connection with the source of supply is its practically total derivation from the
lower working-classes..."); id. at 82 ("the huge proletariat is the reservoir from which victims can be
readily drawn"); id. at 84 ("economic pressure is mainly the region from which the prostitute comes").
38. FEIGA BLEKHER, THE SOVIET WOMAN IN THE FAMILY AND IN SOCIETY [A SOCIOLOGICAL
STUDY] 10 (1979).
39. Alice Withrow Field, Prostitution in the Soviet Union, 143 NATION 373 (March 25, 1936);
HALLE, supra note 33, at 221, 253.
40. supra note 33, at 253; Marion Nelson, Two Curious Institutions of Soviet Russia, 14
HALLE,
CANADIAN FORUM 260, 261 (April 1934).
41. Laurie Annabelle Bernstein, Sonia's Daughters: Prostitution and Society in Russia 144 (1987)
(unpublished Ph.D. dissertation, University of California (Berkeley)).
42. RICHARD STITES, THE WOMAN'S LIBERATION MOVEMENT IN RUSSIA: FEMINISM, NIHILISM, AND
BOLSHEVISM 1860-1930 183 (1978).
43. NINA NIKOLAEVNA SELIVANOVA, RUSSIA's WOMEN 213 (1923).
44. See HALLE, supra note 33, at 220-21 (average monthly wage for a man was 34 rubles, 13 rubles
for a woman).
45. SELIVANOVA, supra note 43, at 214.
46. STITES, supra note 42, at 330.
19921 SOVIET PROSTITUTION LAW REFORM 1205
47. Id.
48. Alexandra Kollontai, Communism and the Family, in I CHANGING ATTITUDES IN SOVIET Rus-
SIA: DOCUMENTS AND READINGS 59, 68 (Rudolf Schlesinger ed., 1949). The essay was written in 1920.
49. Kollontai, supra note 27, at 265.
50. KZoT RSFSR, art. 1,Sobranie uzakonenii RSFSR [Collection of Legislation of the R.S.F.S.R.1,
Issue no. 87-88, Item 905 (1918); LEV FRIDLAND. S RAZNYKH STORON: PROSTITUTSIIA V SSSR (FROM
VARIOUS SIDES: PROSTITUTION IN THE U.S.S.R.] 146-48 (1931).
51. Field, supra note 39, at 373; Circular of the People's Commissar of Health (Semashko), No. 21,
0 merakh bor'by s prostitutsiei (Gubispolkomam dlia vsekh otdelov i gubprofsovetam) [On Measures
for the Struggle against Prostitution (To Province Executive Commissions for all Departments and to
Province Trade Union Councils)], EZHENEDEL'NIK SOVETSKOI IUSTITSII [SOVIET JUSTICE WEEKLY] Jan
26, 1923 at 381 [hereinafter On Measures for the Struggle against Prostitution).
52. HALLE, supra note 33, at 224; V. BRONNER, LA LUTTE CONTRE LA PROSTITUTION EN URSS 25
(1936). Dr. Bronner was an official of the Central Council to Combat Prostitution. See.infra note 105
and accompanying text (discussing this Central Council).
53. STITES, supra note 42, at 371; FRIDLAND, supra note 50, at 146.
54. Kollontai, supra note 27, at 262.
55. See HALLE, supra note 33, at 224 ("militia of morals"). See also BRONNER, supra note 52, at
25; STITES, supra note 42, at 372 (citing shortage of funds on part of potential clients as factor in
decrease of prostitution during civil war).
56. See infra note 124 (listing family codes).
57. N. Brian-Chaninov, La Prostitution dans I'Union Soviitique, 228 MERCURE DE FRANCE 589,
593 (1931).
58. Id. at 597-99.
1206 AMERICAN CRIMINAL LAW REVIEW [Vol. 29:1197
59. On Measures for the Struggle against Prostitution, supra note 51, at 38 1.
60. MAURICE DoBB, SOVIET ECONOMIC DEVELOPMENT SINCE 1917 152 (1966).
61. Id. at 189-91.
62. Wendy Zeva Goldman, The "Withering Away" and the Resurrection of the Soviet Family, 1917-
1936 150-55 (1987) (Ph.D. dissertation, University of Pennsylvania) (on file with University Microfilms
International Dissertation Service, Ann Arbor) (discussing statistics and case studies detailing many
prostitutes' inability to find other work).
63. STITES, supra note 42, at 372-73; ALICE WITHROW FIELD, PROTECTION OF WOMEN AND CHIL-
DREN IN SOVIET RUSSIA 195 (1932); Field, supra note 39, at 373.
64. Rachelle S. Yarros, Moscow Revisited: Social Hygiene 1930-1936, 23 J. Soc. HYGIENE 200, 201
(April 1937).
65. STITES, supra note 42, at 394; S.E. GAL'PERIN, PROSTITUTSIIA V PROSHLOM I NASTOIASHCHEM
[PROSTITUTION IN THE PAST AND PRESENT) 36 (1928).
66. Kollontai, supra note 27, at 270-71.
67. See. e.g., D.P. Rodin, lz dannykh a sovremennoi prostitutsii (Sotsial'nyi ocherk) [From Data on
19921 SOVIET PROSTITUTION LAW REFORM 1207
Contemporary Prostitution (A Social Study)], PRAVO I ZHIZN' [LAW AND LIFE] 63-69 (no. 5, 1927)
(discussing link between abuse of alcohol and prostitution).
68. Id. at 63.
69. Id. at 64.
70. A. Uchevatov, lz byta prostitutsii nashikh dnei (po materialam, sobrannym studentami I
M.G.U.) [From An Existence of Prostitution of our Day (according to materials gathered by students of
the first-year class at Moscow State University)], PRAVO I ZHIZN' [LAW AND LIFE] 50, 53 (no. I,
1928); see also Field, supra note 39, at 373; Rodin, supra note 67, at 65.
71. Rodin, supra note 67, at 65-66.
72. Id. at 66-67 (43.6% of prostitutes studied had trained for some trade; however, only 15.5% were
able to work independent of prostitution).
73. Id. at 66.
74. Uchevatov, supra note 70, at 50-51.
75. Kollontai, supra note 27, at 265.
76. Id., at 266.
77. Id. at 267.
78. Id. at 268.
1208 AMERICAN CRIMINAL LAW REVIEW [Vol. 29:1197
too risky to free prostitutes from state control); Laura Engelstein, Gender and the Juridical Subject:
Prostitution and Rape in Nineteenth-Century Russian Criminal Codes, 60 J. Moo. HIST. 458, 463, 485
(1988). The regulations were not written into the general legislation. Mikhail Strogovich, Bor'ba s
prostitutsiei putem ugolovnoi repressii [ The Struggle Against Prostitution through Criminal Repres-
sion], EZHENEDEL'NIK SOVETSKOI IUSTITSII [SOVIET JUSTICE WEEKLY] 1212 n.2 (no. 37, 1925). Refer-
ence to the regulations is found in Svod ustavov o preduprezhdenii i presechenil prestuplenii [Collec-
tion of Regulations on the Prevention and Cutting Off of Crimes], art. 155 n.1, in 14 SVOD ZAKONOV
RossnsKoi IMPERIn [COLLECTION OF LAWS OF THE RUSSIAN EMPIRE] Ill (I.D. Mordukhai-Boltovskii
ed. 1913) (prohibiting opening one's house for prostitution, entering such a house as a client, or living
from the earnings of prostitution). This was a non-penal offense and was not used to stop legalized,
regulated prostitution. Engelstein, supra this note, at 485-87. In 1909, violation of these prostitution-
related regulations was made punishable by arrest up to six months. Ugolovnoe ulozhenie [Criminal
Code], art. 528, in 15 SVOD ZAKONOV RossiISKO! IMPERIl [COLLECTION OF LAWS OF THE RUSSIAN
EMPIRE] 260 (I.D. Mordukhai-Boltovskii ed. 1913). On "'arrest," see id., art. 21. In addition, solicita-
tion for prostitution in public was punishable by arrest up to one month. Ustav o nakazaniiakh nala-
gaemykh Mirovymi Sud'iami [Statute on Punishments Imposed by Justices of the Peace], art. 43, in 15
SVOD ZAKONOV ROSSIISKOI IMPERIl [COLLECTION OF LAWS OF THE RUSSIAN EMPIRE] 210 (I.D.
Mordukhai-Boltovskii ed. 1913). The 1903 Criminal Code made it a penal offense to act as intermedi-
ary for the prostitution of a woman under twenty-one years of age or to receive such a woman into a
house of prostitution. Ugolovnoe ulozhenie [Criminal Code], arts. 524, 529, in 15 SVOD ZAKONOV Ros-
SIISKOI IMPERIl [COLLECTION OF LAWS OF THE RUSSIAN EMPIRE] 259, 260 (I.D. Mordukhai-Boltovskii
ed. 1913).
85. See GAL'PERIN, supra note 65, at 16; Bernstein, supra note 41, at 16-17 (prostitutes had to carry
"yellow tickets" as a police and hygienic measure); Engelstein, supra note 84, at 492.
86. Field, supra note 39, at 373; HALLE, supra note 33, at 221.
87. HALLE, supra note 33, at 222 (woman could be set free from life as regulated prostitute if she
proved she was seriously ill, or dies); Bernstein, supra note 41, at 172 (yellow ticket could only be
canceled by healthy woman if she proved she "quit the trade of vice"); STITES, supra note 42, at 184.
88. GAL'PERIN, supra note 65, at 20.
89. Id. at 26-27.
90. HALLE, supra note 33, at 223.
91. STITES, supra note 42, at 226.
1210 AMERICAN CRIMINAL LAW REVIEW (Vol. 29:1197
'
lost to society; she generally goes down in misery within a few years. "92
9
Bebel, along with other analysts, asserted that regulation did not substan-
tially reduce venereal disease. 94
The Soviet Russian government opposed both regulation and criminaliza-
tion. Mikhail Strogovich, a criminal law specialist, criticized the tsarist
regulatory approach of "a system of yellow cards, registration of brothels,
[and] medical checks" as oppressive of women.9 Health Commissar
Semashko said that "old methods of supervision used in pre-revolutionary
Russia, and which instead of protecting women oppressed them, must abso-
lutely be repudiated. This includes cordoning off an area, investigation of
prostitutes, and forced examinations. . . . The struggle against prostitution
must in no way be replaced by a struggle against prostitutes." 96
Disenchanted with the tsarist regulatory scheme, the Soviet Russian gov-
ernment abolished it. Hence, prostitution was no longer a crime, but pro-
curing or keeping a brothel was outlawed. Strogovich explained that "[in
our law, prostitution has entirely lost the character of a legal institution,
since there are no longer legal norms regulating the engaging in of
97
prostitution.
In 1922, a proposal was circulated within the People's Commissariat of
Internal Affairs to establish a "morals militia" to investigate prostitution.
The function of a morals police force was to ferret out women practicing
prostitution.9 8 Its activities in several European countries were criticized, or
stopped, because the morals police had the power to take any women they
suspected of prostitution into court and force her to undergo periodic ex-
aminations, often conducted in a crude and demeaning fashion.99 When
criticized by the German Communist Klara Zetkin as oppressive to women,
the proposal for a "morals militia" was abandoned by the Russian
government. 100
Some Bolsheviks thought that the act of engaging in prostitution should
be criminalized, on the rationale that professional prostitutes are labor de-
serters. However, Kollontai objected that on this theory, housewives too
argued that eventually the government would create jobs for all, and in the
meantime, venereal disease had to be stopped. 122
Even though in the 1920s the government had not begun economic re-
form to bring full employment, it instituted a number of reforms intended
to reduce prostitution. Given the Marxist perspective on the causes of pros-
titution, these measures were not viewed as a complete solution. However,
legislation was adopted in Soviet Russia to give women legal equality with
men. Improved civil status, it was hoped, would make women better able to
take care of themselves and less likely to resort to prostitution.' 2 The 1918
Family Code, in a sharp departure from tsarist law, accorded women
equality with respect to entry into marriage, choice of surname, and rights
within marriage regarding place of residence and upbringing of children.
Also, for the first time in Russia, divorce was made available to women. 2 4
Commissar Semashko asked the anti-prostitution councils to educate the
public regarding prostitution, through youth groups, army units, and
schools. The aim was to "explain to the workers the essence of prostitution,
the fact that it is impermissible and a shame in the workers' republic, and
the dangers connected with it.' 2 "[P]rostitution will begin to disappear if,
while we struggle to consolidate our economic front, while we struggle to
liquidate unemployment, we also enter upon a struggle to impress upon the
minds of the workers all the inadequacy, all the shame of purchasing a
12
human body.' 6
The Council to Combat Prostitution urged that names of male clients be
placed on bulletin boards at the factories where they worked. 12 7 Police in-
formed the employers of clients, and clients' names were published in local
newspapers.' 28 The Communist Party expelled members found to have pa-
tronized a prostitute. 1 29 By the early 1930s, it was reported that the de-
mand for prostitution had declined. 13 0
146. On Measures for the Struggle against Prostitution, supra note 51, at 381; GAL'PERIN, supra
note 65, at 35.
147. GAL'PERIN, supra note 65, at 35; Kak borot'sia s prostitutsiei: Rabota moskovskikh venero-
logicheskikh dispanserov [How to Fight Prostitution: The Work of the Moscow Venereal Disease Dis-
pensaries], RABOCHAIA GAZETA [WORKER'S GAZETTE], Feb. 25, 1925, at 8, col. 2.
148. On Measures for the Struggle against Prostitution, supra note 51, at 381.
149. GAL'PERIN, supra note 65, at 35; How to Fight Prostitution: The Work of the Moscow Vene-
real Disease Dispensaries, supra note 147, at 8, col. 2.
150. On Measures for the Struggle against Prostitution, supra note 51, at 381.
151. FIELD, supra note 63, at 196; Yarros, supra note 64, at 205; Nelson, supra note 40, at 261;
HALLE, supra note 33, at 233.
152. MARY CALLCOTT. RUSSIAN JUSTICE 60-61 (1935).
153. HALLE, supra note 33, at 235-36; FIELD, supra note 63, at 197.
154. Nelson, supra note 40, at 261; GAL'PERIN, supra note 65, at 38; Field, supra note 39, at 374.
155. Yarros, supra note 64, at 205; Nelson, supra note 40, at 261; HALLE, supra note 33, at 236.
156. HALLE, supra note 33, at 236-37.
157. Yarros, supra note 64, at 205; Field, supra note 39, at 374; Nelson, supra note 40, at 261.
158. Bernstein, supra note 41, at 189-207 (describing Houses of Mercy, their financial woes and
1992] SOVIET PROSTITUTION LAW REFORM 1217
limited success in preventing return to prostitution); Stites, supra note 42, at 71, 224-25; BERNICE
MADISON. SOCIAL WELFARE IN THE SOVIET UNION 11 (1968).
159. Field, supra note 39, at 374.
160. HALLE, supra note 33, at 237; FIELD, supra note 63, at 196.
161. HALLE, supra note 33, at 234.
162. Field, supra note 39, at 374; Nelson, supra note 40, at 261; HALLE, supra note 33, at 251.
163. FIELD, supra note 63, at 198; Field, supra note 39, at 374.
164. Yarros, supra note 64, at 205; Nelson, supra note 40, at 261.
165. FIELD, supra note 63, at 196.
166. HALLE, supra note 33, at 235.
167. Yarros, supra note 64, at 205; Nelson, supra note 40, at 261; HALLE, supra note 33, at 244-47;
FRIDLAND, supra note 50, at 48.
168. HALLE, supra note 33, at 249-50 (general acceptance, with some exceptions).
169. STITES, supra note 42, at 374.
170. Brian-Chaninov, supra note 57, at 592, 598.
171. Strogovich, supra note 84, at 1212.
172. HARRY SCHWARTZ, RUSSIA'S SOVIET ECONOMY 517-18 (1954).
173. BASIL DMYTRYSHYN, USSR: A CONCISE HISTORY 165 (1971) (stating that unemployment was
1218 AMERICAN CRIMINAL LAW REVIEW [Vol. 29:1197
migrating to a town for employment were likely to find it. This turnaround
in employment coincided with a reduction in prostitution.'" One contempo-
rary analyst wrote that "[b]y the middle of 1930, unemployment was fi-
nally liquidated. Simultaneously, of course, unemployment completely
ceased among women, and the most terrible concomitant of unemployment
' 75
- prostitution - was done away with.'
While that statement was exaggerated, the high employment levels of
the 1930s did seem to be a factor in the significant decline in prostitu-
tion.1 76 A 1928 survey by the Moscow Venereal Dispensaries put the num-
ber of prostitutes in Moscow at 3000.177 An estimate of 800 was made in
1931178 and 400 in the mid-1930s.1 79 To the extent that prostitution ex-
80
isted, it was predominantly part-time rather than full-time work.1
By the late 1930s, prophylactoria were phased out, as the decreased
number of prostitutes no longer warranted their use.' 8' One analyst wrote
that "prostitution disappeared as a statistically measurable phenomenon al-
most immediately after the ending of unemployment."' 82
During the early 1930s, however, prostitution appeared in a new context.
Men, often without their families, were recruited to work in newly built
industrial towns. Local young peasant women became "camp followers in
return for tempting gadgets such as silk stockings and cosmetics.' 3 This
kind of prostitution was apparently a temporary phenomenon, connected
with the founding of new industrial towns.
Prostitution persisted with respect to the foreign community in major cit-
ies, as foreigners possessed items of value not available locally. Foreign
businessmen had long been prime clients of prostitutes in Russia. The in-
dustrialization plans provided new impetus for this type of prostitution,
since few consumer items were imported, and few were produced. Foreign-
ers thus became a source of scarce commodities that a prostitute could
either use or sell. In the 1930s, these prostitutes became known as "foreign
eliminated in the early 1930s); DOBB, supra, note 60, at 191 (attributing the drop in unemployment to
large construction projects in 1929-30).
174. Field, supra note 39, at 373.
175. G.N. SEREBRENNIKOV. THE POSITION OF WOMEN IN THE U.S.S.R. 47 (1937).
176. STITES. supra note 42, at 405; Cf. Robinson, supra note 129, at 228 (explaining the decline in
prostitution not by employment levels but by the decline in number of wealthy men: "'How can the
Russian women practice prostitution when the men are so poor that they have nothing to offer them?").
177. Yarros, supra note 64, at 203; HALLE, supra note 33, at 253.
178. Yarros, supra note 64, at 203.
179. Nelson, supra note 40, at 261.
180. Yarros, supra note 64, at 206.
181. Id.; Field, supra note 39, at 374.
182. WILLIAM M. MANDEL, SOVIET WOMEN 68 (1975). See also LARGE SOVIET ENCYCLOPEDIA,
supra note 132, at 114 (in 1930s, prostitution eradicated as widespread phenomenon).
183. Field, supra note 39, at 374.
1992] SOVIET PROSTITUTION LAW REFORM 1219
currency girls."1 4
After the 1930s, prostitution continued at a modest level.18 5 In 1951,
when the United Nations circulated a questionnaire about prostitution, the
Soviet delegate indicated that there was no need for the Soviet Union to fill
out the form, because there was no prostitution to report." In 1954, when
the Soviet government signed an international treaty directed against pros-
titution, it filed a declaration stating, "[i]n the Soviet Union the social con-
ditions which give rise to the offenses covered by the Convention have been
eliminated." ' 7
Not all official Soviet sources were as categorical.1 88 Still, professional
prostitution was in fact not widespread in Soviet Russia, and brothels were
hard to find. 89 As in the 1930s, most who engaged in prostitution did so in
addition to regular employment, operating typically without procurers. 9
With high employment levels in the 1930s and beyond,19 1 the Soviet
Russian government's analysis of the causes of prostitution remained con-
stant. 19 2 However, the government's attitude towards women engaging in
prostitution changed. Prostitutes were no longer viewed as victims, because
they were seen to have job alternatives. The government regarded them as
morally culpable.19 3 This new attitude was reflected in a 1936 Communist
Party journal:
One of the evils of a capitalist society is prostitution. The Octo-
ber Revolution dealt a severe blow to prostitution, but to put an
184. Field, supra note 39, at 374. Red-Light Ladies, NEWSWEEK, Nov. 10, 1986, at 46.
185. STITES, supra note 42, at 405.
186. 1951 U.N.Y.B. 541.
187. U.S.S.R. Declaration, Aug. 11,1954, Convention for the Suppression of the Traffic in Persons
and of the Exploitation of the Prostitution of Others, in United Nations, Multilateral Treaties Depos-
ited with the Secretary-General. Status as at 31 December 1990, at 299, U.N. Doc. ST/LEG/SER.E/
9 (1991).
188. LARGE SOVIET ENCYCLOPEDIA, supra note 132, at 114 ("[i]ndividual manifestations of prostitu-
tion bear a local character").
189. STITES, supra note 42, at 405.
190. BLEKHER, supra note 38, at 38; Gabriel' Vol'nov, Drevneishaia professiia v stolitse kom-
munizma [The Most Ancient Profession in the Capital of Communism] POSEV 1213, Feb. 1975 at 52,
53.
191. ALEC NOVE. THE SOVIET ECONOMIC SYSTEM 219 (1977); ABRAM BERGSON, THE ECONOMICS
OF SOVIET PLANNING 106 (1964) (stating that "unemployment of a persistent sort has not been
sizable").
192. 35 BOL'SHAIA SOVETSKAIA ENTSIKLOPEDIIA [LARGE SOVIET ENCYCLOPEDIA] 100 (2d ed. 1955)
(roots of prostitution lie in inequality, lack of rights for women, their significantly lower salaries, un-
bearable conditions of poverty and enslavement of the workers and unemployment).
193. GAIL WARSHOFSKY LAPIDUS, WOMEN IN SOVIET SOCIETY: EQUALITY, DEVELOPMENT, AND SO-
CIAL CHANGE 113 (1978).
1220 AMERICAN CRIMINAL LAW REVIEW [Vol. 29:1197
194. V. Svetlov, Socialist Society and the Family, Pod Znamenem marksizma [Under the Banner of
Marxism], (organ of C.P.S.U.), 1936, in I CHANGING ATTITUDES IN SOVIET RUSSIA: DOCUMENTS AND
READINGS. supra note 48, at 345.
195. HAROLD J. BERMAN, JUSTICE IN THE U.S.S.R.: AN INTERPRETATION OF SOVIET LAW 56 (2d ed.
1966).
196. Criminal Code 1922, supra note 106, chap. 6. UK RSFSR; SOBRANIE UZAKONENII RSFSR
[COLLECTION OF LEGISLATION OF THE RSFSR] Issue No. 80, Item 600 (1926).
197. V. D. Men'shagin, PRESTUPLENIIA PROTIV LICHNOSTI PO PROEKTU UGOLOVNOGO KODEKSA
SSSR [CRIMES AGAINST THE PERSON IN THE DRAFT OF THE CRIMINAL CODE OF THE U.S.S.R.], SOTSI-
ALISTICHESKAIA ZAKONNOST' [SOCIALIST JUSTICE] 34, 47 (no. 9, 1937).
198. UK RSFSR, art. 226; Vedomosti RSFSR, Issue No. 40, Item 591 (1960) [hereinafter Criminal
Code 1960].
199. SOVETSKOE UGOLOVNOE PRAVO: CHAST' OSOBENNAIA [SOVIET CRIMINAL LAW: SPECIAL PART]
379 (N.I. Zagorodnikov et. al. eds., 1965). The same placement was found in the post-War criminal
1992] SOVIET PROSTITUTION LAW REFORM 1221
ries on the 1960 Code omitted any characterization of the prostitute as the
victim of the offense. Rather, they described the offense as one that
threatened public order and morality.2"' They did not make it clear if
amorality was found in the act of the prostitute, or found only in that of
the organizer. 0 1
In line with the new conception of prostitution as a public order offense,
commentators treated prostitution as a variety of a broader sphere of activ-
ity defined as "parasitism." The Large Soviet Encyclopedia stated that
prostitution in the U.S.S.R. "is regarded as a form of parasitic exis-
tence."2 Prostitution engaged in as a livelihood after 1960 was indeed
punished as "parasitism," and prosecutions were reported.20 3
The 1960 Criminal Code, unlike its predecessor, prohibited "systematic
engaging in vagrancy or begging."204 "Vagrancy" meant "repeated moving
by vehicle or on foot from one populated point to another, accompanied by
refusal to undertake socially useful labor." 20 5 "Systematic" meant a mini-
mum of three moves to new towns or cities.20 6 The reason behind the pro-
20 7 All
hibition was the opinion that vagrancy "is a form of parasitism.
persons were to engage in socially useful labor, in keeping with the provi-
sions in successive Soviet constitutions making socially useful labor a civic
codes of the other fourteen union republics: Ukraine, art. 210; Belorussia, art. 221; Uzbekistan, art.
219; Kazakhstan, art. 215-1; Georgia, art. 230; Azerbaidzhan, art. 229; Lithuania, art. 239; Moldavia,
art. 222; Latvia, art. 208; Kirghizstan, art. 237; Tadzhikstan, art. 242; Armenia, art. 226; Turkmeni-
stan, art. 260; Estonia, art. 201. The Estonia provision, alone among the republic codes, omitted pimp-
ing, punishing only maintenance of a house of prostitution. In the codes of several republics, the title of
the chapter in which this provision appeared omitted reference to health, indicating only social order:
Uzbekistan, chap. 10; Georgia, chap. 10; Azerbaidzhan, chap. 10; Lithuania, chap. 10; Kirghizstan,
chap. 10; Estonia, chap. 10. This was a further indication that the offense was deemed one against
public order. See UGOLOVNOE ZAKONODATEL'STRO SOIUZA SSR I SOIUZNYKH RESPUBLIK [CRIMINAL
LEGISLATION OF THE SOVIET UNION AND UNION REPUBLICS] pts. I & 11(1963) (all laws cited appear
in this publication).
200. SOVETSKOE UGOLOVNOE PRAVO: CHAST' OSOBENNAIA (SOVIET CRIMINAL LAW: SPECIAL PART]
377-78 (M.D. Shargorodskii & N.A. Beliaev eds., 1962); UGOLOVNOE PRAVO: CHAST' OSOBENNAIA
[CRIMINAL LAW: SPECIAL PART] 401 (M.l. Kovalev et. al. eds., 1969).
201. One text stated that an aim of the provision was to prohibit acts that lead citizens to a parasitic
lifestyle, although it did not specify whether this referred to prostitution, or to the organizing of drug
use or playing games of chance, which were also prohibited by the same code provision. SOVETSKOE
UGOLOVNOE PRAVO: CHAST' OSOBENNAIA [SOVIET CRIMINAL LAW: SPECIAL PART] 362 (V.D.
Men'shagin et. al. eds., 1964).
202. LARGE SOVIET ENCYCLOPEDIA, supra note 132, at 114. See also FLEXNER, supra note 25, at
17 (indicating that criminalization of prostitution was rationalized in a few European countries in the
early twentieth century on the grounds that the prostitute is a parasite or a vagrant).
203. Vol'nov, supra note 190, at 53. See also MICHAEL STERN & AUGUST STERN, SEX IN THE
SOVIET UNION 160 (1981).
204. Criminal Code 1960, supra note 198, art. 209.
205. KOMMENTARII K UGOLOVNOMY KODEKSU RSFSR [COMMENTARY ON THE CRIMINAL CODE OF
THE RSFSR] 445 (G.Z. Anashkin et al. eds., 1971).
206. Id.
207. Id. at 446.
1222 AMERICAN CRIMINAL LAW REVIEW [Vol. 29:1197
208. KONST. USSR art. 12 (Dec. 5, 1936); IZVESTIIA TsIK SOIUZA SSR I VTsIK [GAZETTE OF THE
CENTRAL EXECUTIVE COMMITTEE OF THE U.S.S.R. AND THE ALL-UNION CENTRAL EXECUTIVE COMMIT-
TEE] (no. 283, Dec. 6, 1936). KONST. USSR art. 60; VEDOMOSTI SSSR. Issue No. 41, Item 617 (1977).
See Case of Smirnova, BIULLETEN' VERKHOVNOGO SUDA RSFSR [Bulletin of the Supreme Court of
the R.S.F.S.R.] 7 (no. 11, 1965) (a person physically incapable of socially useful labor was not punish-
able for parasitism).
209. Criminal Code 1960, supra note 198, art. 209-1.
210. Peter Juviler, Women and Sex in Soviet Law, in WOMEN IN RUSSIA, supra note 36, at 250.
211. UK RSFSR; VEDOMOSTI RSFSR, Issue No. 33, Item 699 (1975) (repealing art. 209-1).
212. UK RSFSR; VEDOMOSTI RSFSR, Issue No. 33, Item 698 (1975) (amending art. 209).
213. UK RSFSR, Amendment to article 209, VEDOMOSTI RSFSR. Issue No. 41, Item 1513 (1982)
(amending art. 209).
214. 0 PORIADKE PRIMENENIIA STAT'I 209 UGOLOVNOGO KODEKSA RSFSR [ON THE PROCEDURE
FOR APPLYING ARTICLE 209 OF THE CRIMINAL CODE OF THE RSFSR] (Dec. 13, 1984); VEDOMOSTI
RSFSR. Issue No. 51, Item 1793 (1984), (translated in 37 Current Digest of the Soviet Press 8
(1985)). A warning was to be given after the first three months; a person who continued a parasitic
way of life one additional month violated Article 209. ld; GeT P. Van Den Berg, A New Explanation
of the Soviet Law Against Parasites: A Note, 11 REv. SOCIALIST L. 181 (1985).
215. On the Procedure for Applying Article 209 of the Criminal Code of the RSFSR, supra note
214; Van Den Berg, supra note 214, at 181; 1. Portnov & V. Fokin, Deiatel'nost' suda po presecheniiu
paraziticheskogo obraza zhizni [Activity of the Court in Cutting Off the Parasitical Way of Life],
SOVETAKAIA IUSTITSIIA [SOVIET JUSTICE] 21-23 (no. 4, 1984); S. Tropin, Primenenie zakonodatel'stva
ob otvetstvennosti za vedenie paraziticheskogo obraza zhizni [Application of Legislation on Responsi-
bility for Leading a Parasitical Way of Life], SOVETSKAIA IUSTITSIIA [SOVIET JUSTICE] 7 (no. 13,
1984).
1992] SOVIET PROSTITUTION LAW REFORM 1223
216. COMMENTARY ON THE CRIMINAL CODE OF THE RSFSR, supra note 205, at 447 (commenting
on art. 209-1).
217. Vol'nov, supra note 190, at 55.
218. Criminal Code 1960, supra note 198, art. 88 (making violations of rules on currency transac-
tions punishable by deprivation of freedom for three to eight years, possible confiscation of property,
confiscation of the currency, and possible additional exile for two to five years). The rules regarding
foreign currency prohibited its receipt in exchange for goods or services. 4 KURS SOVETSKOGO
UGOLOVNOGO PRAVA [COURSE IN SOVIET CRIMINAL LAW] 256 (A.A. Piontovskii et al eds., 1970). If,
however, foreign currency were received "in small amounts," then the act constituted not a crime but
an administrative violation, for which a fine was exacted. Decree, Presidium of the Supreme Soviet of
the U.S.S.R., Ob otvetstvennosti za skupku, prodazhu i obmen v nebol'shikh razmerakh valiuty i
skupku veshchei u inostrantsev [Responsibility for Buying up, Selling, and Exchanging Foreign Cur-
rency in Small Quantities and for Buying up Items from Foreigners], (Mar. 25, 1970); VEDOMOSTI
USSR. Issue 13, Item 108 (1970). According to the Criminal Code, if this act were done twice within
a year, it became a crime. CRIMINAL CODE 1960, supra note 198, art. 154-2. "Small amount" meant
less than 25 rubles in foreign currency at the official rate of exchange. COMMENTARY ON THE CRIMINAL
CODE OF THE RSFSR, supra note 205, at 333.
219. Vol'nov, supra note 190, at 54. See, e.g., A. Pravov, Pliazhnye devochki: Dni oni provodiat v
barakh, a vecherami atakuiut postoial'tsev dorogikh nomerov [Beach Girls: They Spend Their Days in
Bars, and in the Evenings They Attack Guests in Expensive Rooms], KoMSOMOL'SKAIA PRAVDA [KOM-
SOMOL TRUTH], Sept. 19, 1987, at 2, (translated in 39 CURRENT DIGEST OF THE SOVIET PRESS 12 (no.
42, Nov. 18, 1987)) (two chambermaids in a Black Sea hotel arrested for prostitution involving Finnish
tourists).
220. A.A. Gabiani & M.A. Manuil'skii, Tsena 'liubvi' (obsledovanie prostitutok v Gruzii) [The
Price of Love (A Survey of Prostitutes in Georgia)], SOTSIOLOGICHESKIE ISSLEDOVANIIA [SOCIOLOGI-
CAL INVESTIGATIONS] Nov.-Dec. 1987, at 61. After 1935, little criminological research was conducted
on any topic. See PETER H. JUVILER, REVOLUTIONARY LAW AND ORDER: POLITICS AND SOCIAL
CHANGE IN THE USSR 42-47 (1976) (discussing the attack on criminology during the Stalinist era);
WALTER D. CONNOR, DEVIANCE IN SOVIET SOCIETY: CRIME. DELINQUENCY, AND ALCOHOLISM 32
(1972) (discussing the rebirth of criminology after Stalin's death). In the 1960s, criminological research
began again, A.A. GERTSENSON, VVEDENIE V SOVETSKUIU KRIMINOLOGIIU [INTRODUCTION TO SOVIET
CRIMINOLOGY] 21-42 (1965), but prostitution was not heavily discussed.
221. IU. M. TKACHEVSKII. PRESTUPNOST' I AL'KOGOLIZM [CRIMINALITY AND ALCOHOLISM] 32
(1966).
1224 AMERICAN CRIMINAL LAW REVIEW [Vol. 29:1197
income derived from letting her room for prostitution was convicted. 22
In the mid-1980s, when the government initiated the policy of glasnost'
(greater public candor), the media described prostitution in various set-
tings,2 23 and scholarly literature followed this lead.2 24 Some specialists com-
plained that the long silence about prostitution had hindered efforts to
eradicate it:
For too long we pretended that no such thing existed here and
that it could not exist . . . .There comes a day when life con-
fronts society with a 'long eliminated' problem and forces it to
resolve it. In such situations one is always sad for the lost oppor-
tunities of time irretrievably lost.22 6
The public discussion of prostitution in the 1980s touched on its possible
causes. One journalist analyzed prostitution in Kirghizstan, but his point
was equally relevant to Russia. He queried: "If our society does not have
the social roots for prostitution, then what is it that facilitates its emer-
gence and growth?" 22 6
The journalist proposed no answer but discounted explanations he attrib-
uted to others: shortage of high-quality, fashionable goods; improper educa-
tion by family and schools; and Western influence 2 7 Educational and eco-
nomic measures to eliminate prostitution, wrote another journalist, had not
228
been successful.
Criminologists of the Ministry of Internal Affairs studied prostitution in
Georgia, though, again, the analysis probably reflected the situation in
Russia as well. Based on a survey of 532 women who had engaged in pros-
titution, the study found that while they did not lack for life necessities,
their modest salaries did not permit them to buy finer things. Further,
many of the women did not find great job satisfaction. Fashionable attire,
obtainable from prostitution earnings, provided a sense of self-worth the
women did not find in their employment. Their material-acquisition
222. Id.
223. See, e.g., Vasilii Golovanov, Avtomobil'nye devochki [Car Girls], LITERATURNAIA GAZETA
[LITERARY NEWSPAPER], Sept. 16, 1987, at 13 (translated in 39 Current Digest of the Soviet Press II
(no. 42, Nov. 18, 1987)). A. Mel'nik, Eleonora khochet poznakomit'sia i dlia etogo ona vybiraet
primorskuiu gostinitsu [Eleanor Wants to Get Acquainted and To Do So She Selects a Hotel on the
Ocean], PRAVDA UKRAINY [TRUTH OF THE UKRAINE], OCt. 18, 1987, at 4. 1. Osinskii & lu. Popov,
Grekhopadenie [The Fall], SOVETSKAIA BELOROSSIIA [SOVIET BELORUSSIA], Nov. 13, 1987, at 3.
224. Gabiani & Manuil'skii, supra note 220, at 61.
225. Id.
226. V. Yurlov, Putany iz Kirgizstana [Prostitute from Kirghizstan], SOVETSKAYA KIRGIZIIA [So-
VIET KIRGHIZSTAN], May 16, 1987, at 3 (translated in 39 Current Digest of the Soviet Press 13 (no.
42, Nov. 18, 1987)).
227. Id.
228. M. Gurtovoi, Pochem liubov'? [How Much Does Love Cost?], Trud [LABOR], July 31, 1987, at
4 [hereinafter Gurtovoi 1987].
1992] SOVIET PROSTITUTION LAW REFORM 1225
240. Id.
241. Gurtovoi 1987, supra note 228, at 4.
242. Id.
243. Decree, Presidium of the Supreme Soviet of the Russian Soviet Federated Socialist Republic
(May 29, 1987) 0 vnesenii izmenenii i dopolnenii v zakonodatel'stvo RSFSR ob otvetstvennosti za
administrativnye pravonarusheniia [On the Introduction of Changes and Additions into the Legislation
of the RSFSR on Responsibility for Administrative Violations], VEDOMOSTI RSFSR, Issue No. 23,
Item 800 (1987). Income derived from an activity that violated administrative law was "non-labor
income," and so this decree re-affirmed that prostitution-related income was not derived from socially
useful labor. P. Grishaev & T. Koshaeva, Pravovoe poniatie netrudovykh dokhodov [The Legal Con-
cept of Non-Labor Income], Sov. lUST. [SOVIET JUSTICE] 22, 23 (no. 23, 1987).
244. Gurtovoi 1987, supra note 228, at 4.
245. Kislinskaya, supra note 238, at I (reporting the maintenance of such a register in Moscow
precinct with substantial prostitution).
246. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitu-
tion of Others, Dec. 2, 1949, art. 6, 96 U.N.T.S. 272, 276 ("Each Party to the present Convention
agrees to take all the necessary measures to repeal or abolish any existing law, regulation or adminis-
trative provision by virtue of which persons who engage in or are suspected of engaging in prostitution
are subject either to special registration or to the possession of a special document or to any exceptional
requirements for supervision or notification").
247. Jane Giddings, Administrative Commissions of Local Soviets, 3 REV. SOCIALIST L. 53, 75
(1977).
1992] SOVIET PROSTITUTION LAW REFORM 1227
states are parties to the Convention. 2 " While the Convention did not re-
quire states to forego outlawing the act of engaging in prostitution, few
2 57
states had done so before, and few adopted that approach subsequently.
Following the Soviet view that in capitalist countries prostitutes are vic-
tims, the Convention did not suggest that prostitutes themselves should be
punished. 2 " It said that states ought "to take or to encourage, through
their public and private education, health, social, economic and other re-
lated services, measures for the prevention of prostitution and for the reha-
bilitation and social adjustment of the victims of prostitution. ' 259 This for-
mulation adopted the Soviet Russian view that economic causes underlie
prostitution, and mirrored the prophylactoria system of Soviet Russia of
the 1920s.
In Britain, the Wolfenden Committee, whose report in 1963 formed the
basis for British law reform on prostitution, accepted the notion that eco-
nomic circumstance was a causal factor in prostitution. In line with the
Russian analysis of that period, the Committee denied that such causation
existed in the Britain of the 1960s:
[W]hatever may have been the case in the past, in these days, in
this country at any rate, economic factors cannot account for it
to any large or decisive extent. Economic pressure is no doubt a
factor in some individual cases. So, in others, is a bad upbring-
ing, seduction at an early age, or a broken marriage. But many
women surmount such disasters without turning to a life of pros-
titution. It seems to us likely that these are precipitating factors
rather than determining causes, and that there must be some ad-
ditional psychological element in the personality of the individual
woman who becomes a prostitute. . . . [T]he great majority of
prostitutes are women whose psychological make-up is such that
they choose this life because they find in it a style of living which
is to them easier, freer and more profitable than would be pro-
256. Multilateral Treaties Deposited with the Secretary-General. Status as at 31 December 1985,
supra note 187, at 297. There were two earlier treaties on prostitution, but they dealt with international
transfer of persons for purposes of prostitution and did not address internal policy. See International
Agreement for the Suppression of the White Slave Traffic, March 18, 1904, 1 L.N.T.S. 83; Convention
for the Suppression of the White Slave Traffic, May 4, 1910, 103 BRIT. & FOREIGN STATE PAPERS
244 (1914).
257. DECKER, supra note 37, at 141. See also CHALEIL, supra note 10, at 419 (naming the several
countries that do make prostitution illegal).
258. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prosti-
tution of Others, supra note 246, art. 16; NATALIE KAUFMAN HEVENER, INTERNATIONAL LAW AND
THE STATUS OF WOMEN 78 (1983).
259. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prosti-
tution of Others, supra note 246, art. 16.
1992] SOVIET PROSTITUTION LAW REFORM 1229
260. THE WOLFENDEN REPORT: REPORT OF THE COMMITTEE ON HOMOSEXUAL OFFENSES AND PROS-
TITUTION 131 (1963).
261. Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979,
art. 6, 19 INT'L LEG. MAT. 33 (1980).
262. Id., art. 5.
263. The sole exception in U.S. jurisdictions is Nevada. See NEV. REV. STAT. § 201.354 (1989) ("It
is unlawful for any person to engage in prostitution . . . except in a house of prostitution"); NEV. REV.
STAT. § 244.345 (providing for the licensing of houses of prostitution by counties).
264. Constitution of the International Labor Organization, preamble, 15 U.N.T.S. 35, 40 (giving
amended text of Constitution, but no change in language cited) (the ILO consisted of the members of
the League of Nations, along with the United States and Brazil).
265. ANTONY ALCOCK. HISTORY OF THE INTERNATIONAL LABOR ORGANIZATION 10 (1971) (stating
that Western governments were moved to establish the International Labor Organization in large part
out of fear of "the threat of social unrest").
1230 AMERICAN CRIMINAL LAW REVIEW [Vol. 29:1197
By the 1980's, many in the United States were calling for an end to the
criminalization of prostitution. American writers criticized all three systems
currently used in the world: criminalization, regulation, and decriminaliza-
tion.217 These existing methods did nothing to address the causes of
prostitution.
Many of the critics were drawn to the Marxist critique that women are
forced into prostitution by economic circumstance. They shared the view of
the French social theorist Simone de Beauvoir that a woman's decision to
engage in prostitution "condemns a society in which this occupation is still
one of those which seem the least repellent to many women.127 7 A body of
feminist-oriented literature appeared and portrayed the prostitute as vic-
tim. 2 78 This view gained increasing adherence as prostitution globalized and
third world countries became the prostitution venue for a clientele from the
developed world. The image of Japanese tour groups traveling to Bangkok,
where poor young Thai women were their prostitutes, dramatically rein-
273. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S.
3.
274. Id., art. 6.
275. Convention on the Elimination of All Forms of Discrimination Against Women, supra note
261, art. 11.
276. See Pasqua Scibelli, Note, Empowering Prostitutes: A Proposalfor International Legal Re-
form, 10 HARV. WOMEN'S L. J. 117 (1987) (analyzing three dominant legal approaches to prostitution
and concluding that abolitionism is most effective regime).
277. SIMONE DE BEAUVOIR, THE SECOND SEX 557 (H.M. Parshely ed. & trans., 1953).
278. BARRY, supra note 6, at 11-32. See, e.g., Jody Freeman, The Feminist Debate Over Prostitu-
tion Reform: Prostitutes' Rights Groups, Radical Feminists, and the (Im)possibility of Consent, 5
BERKELEY WOMEN'S L. J.75, 92-97 (1989-90)(analyzing radical feminist approach which portrays
women as victims and objects of a male-defined, male-dominated society that subordinates them and
prevents them from truly consenting to sexual activity); Mark Tushnet, Sex, Drugs, and Rock 'n' Roll:
Some Conservative Reflections on Liberal Jurisprudence, 82 COLUM. L. REV. 1531, 1541 (1982) (re-
viewing DAVID A.J. RICHARDS. SEX. DRuGs, DEATH AND THE LAW (1982)) ("prostitution represents the
ultimate capitalist degradation of personal relationships").
1232 AMERICAN CRIMINAL LAW REVIEW [Vol. 29:1197
worth, she may not possess the self-confidence to take the risk of change. 8
Counseling coupled with other services may be needed.
Beyond factors specific to a particular woman, a societal attitude that
denigrates the value of women's labor and of women's worth in general
may contribute to a woman's willingness to engage in prostitution. This
attitude may also foster society's willingness to allow prostitution and
forego reforms that would free women from prostitution. 86
Soviet Russia introduced a new analysis of prostitution, arguing that the
prostitute was a victim of economic circumstance and that prostitution
could be eradicated by socio-economic reform. It put that theory into prac-
tice by eliminating the tsarist system of government-regulated brothels, es-
tablishing institutions to help prostitutes into a new life, and ensuring full
employment for women.
Soviet Russia certainly did not eradicate prostitution, a fact cited to dis-
pute the Marxist analysis of the causes of prostitution. 87 Yet the lack of
success in eradicating prostitution in Soviet Russia does not necessarily dis-
prove the Marxist thesis. There was, as indicated, some success in Soviet
Russia, but the country did not achieve the economic progress it sought.
Although the Soviet Russian approach of eradicating prostitution by at-
tacking its causes has exercised considerable influence abroad, to date,
most governments typically view prostitution as inevitable, and decide what
penal or administrative policy to adopt to limit it.
The Soviet Russian approach still has much to recommend it. Govern-
ments that do nothing about the many women with no alternative to prosti-
tution fail in their duty, as defined by contemporary human rights stan-
dards. While the enormity of the task may deter many governments, in a
society that values human rights, it is not an unrealistic expectation for the
government to ensure that no woman need engage in prostitution to provide
a living for herself or her dependents.
The Soviet Russian approach may be as important for showing the enor-
mity of the task as it is for specific solutions. Perhaps the most important
lesson is that the various legislative techniques used to regulate prostitution
are not likely to eliminate it or even reduce its occurrence.
The overall solution that would seem most acceptable for the phenome-
non of prostitution would run as follows. First, a society provides full em-
ployment, thereby ensuring that a woman has a choice of professions. Sec-
285. See BARRY, supra note 6, at 101-02 (prostitutes who are abused by those closest to them come
to believe they deserve that kind of treatment and may not resist the "slavery" of prostitution).
286. Id. at 8-9.
287. Lars 0. Ericsson, Charges Against Prostitution: An Attempt at a PhilosophicalAssessment, 90
ETHiCS 335, 346 (1980) ("Nor is it true that harlotry 'falls' with the abolition of private property, as
the evidence from countries with socialist economies clearly shows").
1234 AMERICAN CRIMINAL LAW REVIEW [Vol. 29:1197
ond, it eliminates the social attitude that stigmatizes women who engage in
prostitution, even if they later enter other work. 28 8 Third, society changes
the commonly held negative attitude about prostitutes so that they are not
seen as easy targets for violence and so that police deal more seriously with
crimes of violence against them. Finally, in order to help women who want
to leave prostitution, social services are made available.289
If all of this were done, women would not be forced into prostitution. In
this construct, there would be no need for criminal laws against the acts of
the prostitute, the client, the procurer, or the brothel keeper, because their
conduct would produce no significant social harm.
These goals may appear utopian. However, the difficulty of achieving
perfection in social policy is no reason to forego the attempt. If the sug-
gested ideal future situation is not achieved, perhaps something approxi-
mating it can be reached. Unless far-sighted goals are kept in view, public
policy on prostitution will only produce results that will continue to draw
justified criticism. The Soviet Russian government may not have found a
solution, but it did identify the issues.
288. See FLEXNER, supra note 25, at 104 ("For the most part, the attitude is indulgent towards the
man, severe towards the woman.
289. Cf. id. at 365-66 (positing conditions for what he terms "sound prostitution" in society). It is
hard to conceive this solution working absent the achievement of general gender equality so that women
participate equally with men in all phases of society. Unless and until that occurs, the negative male
attitude towards prostitution is likely to persist.