Today, the world witnessed, as Pope Francis met with women imprisoned on charges of prostitution in Philadelphia. The CSE Institute, along with 20 Pennsylvania law professors, takes this historic moment as an opportunity ask, “Why are women imprisoned for prostitution – when so often they are victims of commercial sexual exploitation?” Isn’t it finally time to decriminalize victims?
Open Letter Regarding Pennsylvania’s Draconian and Unequal Recidivism Penalties for Prostitution Offenses
With the passage of Act 105 in September of 2014, Pennsylvania is beginning to recognize people criminally charged with the crime of prostitution as who they truly are—victims of sex trafficking. However, the crime of prostitution under Pennsylvania law still carries draconian recidivist provisions. Recidivist provisions increase punishment with each new conviction: the more often one is convicted of a crime, the higher the penalty. The crime of prostitution in Pennsylvania recidivizes, so that a fourth or subsequent offense carries a statutory maximum of up to five years incarceration.
At one time, policymakers may have believed that a woman freely chooses to enter into “the life” of prostitution, and consequently, she might be deterred from re-entering “the life” if she fears harsher punishment. However, this view is archaic and unfounded. The reality is that most women do not sell sex by choice, but rather as a means of survival. Many of these women are in “the life” because they ran away from abusive homes as children, lived on the streets, and remain uneducated, jobless, and homeless.
When passing Act 105 in September 2014, the legislature recognized that many prostitution-related crimes are not the fault of the victims, but rather, traffickers who have exploited them. Pennsylvania’s draconian recidivist provisions are useless in preventing these victims from returning to “the life.”
Moreover, in practice, recidivist provisions for prostitution offenses result in gender-based inequalities – because the crime of prostitution is policed in such a way that those who sell sex – so-called “prostitutes” – primarily women – are routinely arrested and convicted, while the buyers – primarily men – routinely walk free from arrest altogether.
By way of numerical illustration, consider the following. On June 26, 2015, 70 women in the Philadelphia County Prison population were incarcerated for prostitution charges, and yet no men were incarcerated for patronizing a prostitute.[1] This inequality results not only from patterns of policing prostitution – but from the opportunities male buyers have to avoid conviction through diversion programs. For example, in Philadelphia County, many of the men arrested for patronizing a prostitute enter a diversionary program that teaches about sexual exploitation and abuse in an effort to deter men from buying sex in the future. At the completion of the program, the men’s criminal records are expunged. By contrast, most of the women arrested for prostitution are not eligible for a diversionary program due to their prior criminal records—which are tainted from the unequal policing of the crime of prostitution in the first place. The result is that the men walk free, without conviction, while the women accrue yet more convictions that expose them to draconian punishments under Pennsylvania’s prostitution recidivism penalties.
For those who remain unmoved by the fact that our Commonwealth punishes victims at a far higher rate and severity than it does their exploiters, consider the financial cost of incarcerating these victims. The astronomical financial cost to imprison women with prostitution convictions presents a compelling reason to abolish recidivist provisions for prostitution. The City of Philadelphia, for example, spends $115.00 daily per inmate.[2] Based on this statistic, if even 70 women are imprisoned for prostitution, the city spends $8,050.00 daily – or $2,938,250.00 a year incarcerating non-violent women who most often engage in the sex trade out of desperation or abuse.[3] If even a portion of these resources were spent on programs to assist these women in exiting prostitution, the financial gains would be tremendous.
The solution to this gender-based inequality and the economic waste of resources is to eliminate the recidivism provisions for both crimes of prostitution and patronizing a prostitute. This makes sense because prostituted persons are not freely entering into this life in the first place, and as such, recidivist provisions fail as a deterrence mechanism.
Pennsylvania is behind 37 states with lesser penalties for prostitution convictions, ranks among the top ten states for harshest penalties for a first or non-graded offense of prostitution, and is one of three states with the harshest prostitution maximum penalties.
According to the Pennsylvania Department of Corrections, since the statute was recidivized, 133 women have been incarcerated in state prison for the crime of prostitution—33 of those women from Philadelphia. Our system is failing these women in getting them the help they need and deserve. It is time for our Commonwealth to catch up with the many states that have already recognized prostitution for what it truly is—sexual exploitation and not a freely-chosen profession. The first step towards this recognition is to abolishing unfair and unequal recidivist provisions.
Signed by (as of 9-27-15): (Please click here to sign this letter. We will send a final version to the members of the Pennsylvania legislature and to Gov. Wolf, in hopes that of eliminating draconian and unequal recidivist penalties for prostitution offenses)
Shea M. Rhodes, Director, Villanova Law Institute to Address Commercial Sexual Exploitation (CSE Institute)
Mary DeFusco, Defender Association of Philadelphia
Professor Michelle M. Dempsey, Professor of Law, Villanova University (Faculty Advisor to CSE Institute)
Kit Kinports, Professor of Law & Polisher Family Distinguished Faculty Scholar, Penn State Law
David Rudovsky, Senior Fellow, Penn Law School
Professor Jules Epstein, Temple Beasley School of Law
Ann C. Juliano, Professor of Law, Villanova University School of Law
Ruth Gordon, Professor of Law Villanova University School of Law
Dveera Segal, Professor of Law, Villanova University School of Law
Judge Abraham J. Gafni (ret.), Profesor of Law, Villanova University School of Law
Michael Campbell, Professor of Law, Villanova University School of Law
Leonard Sosnov, Professor, Delaware Law School
Doris DelTosto Brogan, Villanova university School of Law
John J. Cannon,Professor of Law,Villanova University School of Law
Gwen Roseman Stern, Esq., Professor of Law, Drexel University, Thomas R. Kline School of Law
Sara Jacobson, Esq., Associate Professor of Law, Temple University Beasley School of Law
John F. Dobbyn, Professor of Law, Villanova Law School
Michael Risch, Professor of Law, Villanova University School of Law
James Edward Maule, Professor of Law, Villanova University School of Law
Keith Fogg, Visiting Professor and Director of the Federal Tax Clinic, Harvard Law School
Melanie McMenamin, Villanova University School of Law
Beth Lyon, Clinical Professor of Law, Cornell Law School
Christine Mooney, Professor of Law, Villanova University School of Law
Candace Centeno, Professor of Law, Villanova School of Law
[1] Daily Census, City of Phila. Prison System (June 26, 2015), http://www.phila.gov/prisons/Pages/default.aspx. Date chosen at random.
[2] City of Phila. Prison Sys., Philadelphia Prison System Performance Report, (June 26, 2015), available at www.phila.gov/prisons.
[3] Id.