What Counts as Prostitution?

Abstract

What counts, or should count, as prostitution? In the criminal law today, prostitution is understood to involve the provision of sexual services in exchange for money or other benefits. But what exactly is a ‘sexual service’? And what exactly is the nature of the required ‘exchange’? The key to answering these questions is to recognize that how we choose to define prostitution will inevitably depend on why we believe one or more aspects of prostitution are wrong or harmful, or should be criminalized or otherwise deterred, in the first place. These judgements, in turn, will often depend on an assessment of the contested empirical evidence on which they rest. This article describes a variety of real-world contexts in which the ‘what counts as prostitution’ question has arisen, surveys a range of leading rationales for deterring prostitution, and demonstrates how the answer to the definition question depends on the answer to the normative question. The article concludes with some preliminary thoughts on how analogous questions about what should count as sexual conduct arise in the context of consensual offences such as adultery and incest, as well as non-consensual offences such as sexual assault.