Negative Effects of Legalized Prostitution in the US State of Nevada

Women’s Human Rights (No. 14) December, 2015

Michael Shively, Ph.D. Senior Associate Abt Associates 55 Wheeler St. Cambridge, MA 02138

Introduction

Prostitution is widely acknowledged by both proponents and opponents to be inherently dangerous, but there are strongly opposing views about the most effective methods for minimizing risks. Laws addressing prostitution pursue three main objectives: Prohibition legally bans prostitution, and seeks its prevention or abolition. Legalization establishes laws and regulations allowing prostitution to function as a type of legitimate business, if it operates within specified parameters. Decriminalization eliminates legal and regulatory restrictions on prostitution, allowing it to function freely in response to market forces. There are also hybrid or “limited legality” laws that borrow elements of the other basic approaches, such as decriminalizing the sale of sex but prohibiting its purchase. This paper examines whether the implementation of legal prostitution in the American state of Nevada has produced the intended reduction in harmful outcomes. Like all jurisdictions that have legalized prostitution, Nevada’s model was driven by a belief that criminalizing and attempting to suppress prostitution is not achievable, and its pursuit produces more harm than good. Efforts to enforce prohibitions result in unintended consequences such as driving commercial sex “underground” where those selling sex are more vulnerable to being abused, stigmatized, harassed by police, and unable to fully access health and social services. Criminalizing prostitution is also said to unleash black market forces, inviting the involvement of organized crime in the sex trade, much like efforts to prohibit alcohol in the early 20th century spurred the Mafia’s proliferation in the United States. Legalization proponents proceed from the assumptions that prostitution is inevitable and the pragmatic approach to effectively reduce risks is managing commercial sex as a legitimate industry operating in plain view. They contend that safety and health outcomes can be improved by regulation, and that the infrastructure for enforcement and compliance and enforcement can be supported by taxes and/or fees paid by the industry. Safeguards for both buyers and sellers of sex can be mandated, and include requiring those selling sex to obtain licenses, mandating frequent screening for sexually transmitted infections, and requiring condom use. Laws legalizing prostitution may require transactions to occur only in licensed and inspected premises, and if so, may impose requirements added specifically for this business, such as panic buttons in bedrooms, the presence of electronic security and/or security staff, minimum sanitary standards, and mandating that brothels use only licensed adult employees or independent contractors. Such standards are intended to reduce disease transmission and deter abuse and exploitation of commercial sex providers. In 1971 the Nevada State Legislature passed statutes legalizing prostitution, and later created regulations containing parameters within which prostitution businesses must adhere to operate in compliance. The regulations outlined a system defining brothels as the only legal venue for commercial sex transactions, requiring licensing of both brothels and the people working within them, and mandating frequent health screenings and certification renewals. This paper provides an assessment of whether the implementation of legalization in Nevada has produced its intended improvements to health and safety. Before describing the history and content of the state law and details about its implementation, we first briefly review the core problems that legalization is meant to solve: the wide range of risks and harms faced by those involved in commercial sex.

Dangers of Prostitution

The negative consequences of prostitution for all parties involved are well documented. Those working in the illicit sex trade, their “customers,” and residents and businesses in areas in which prostitution occurs all suffer tangible harm (Deering et al., 2014; Kinnell, 2013; Newman, 2006; Nixon et al., 2002; Rekart, 2006; Shannon et al., 2010; Walker, 2002). People typically enter prostitution as minors (Edwards, 2006; Goldenberg et al., 2013; Estes and Weiner, 2002), and key predictors of entry include child sexual abuse, financial insecurity, family discord, violence, and coercion (e.g., Bittle, 2002; Crime and Misconduct Commission, 2004; Halter, 2010; McIntyre, 1999; McNaughton & Sanders, 2007; Reid, 2011; Tyler & Johnson, 2006; Wilson & Widom, 2010). Traumatic experiences with childhood abuse and family dysfunction contribute to prostitution risk via homelessness and a lack of economic self-sufficiency, and vulnerable youth are often are targeted for recruitment into commercial or survival sex within 48 hours of becoming homeless (Minnesota Attorney General’s Office, 1999). Commercial sex involving minors is, by definition, sex trafficking since minors cannot legally consent to prostitution, but studies find the inherent exploitation is frequently compounded by traffickers’ use of coercion and force (e.g., Chapkis, 2003; Kennedy et al., 2007). Once involved in selling sex, the vast majority can expect to experience a wide range of serious health problems and other trauma resulting from infectious disease, assaults, and drug abuse, including traumatic stress, elevated suicide risk, shorter life expectancy, and vastly elevated homicide risk. Systematic reviews of hundreds of studies have found the majority of women in prostitution to experience workplace violence committed by pimps, sex buyers, and co-workers (e.g., Deering et al., 2014; Kinnell, 2013; O’Doherty et al., 2011; Raphael & Shapiro, 2004). Involvement in prostitution is also linked to post-traumatic stress and a variety of health problems, including tuberculosis, HIV, STDs, anemia, and hepatitis (e.g., Campbell et al., 2003; Farley et al., 2003; McDonnell et al., 1998; Nixon et al., 2002; Valera et al., 2000; Walker, 2002a; Wood et al., 2007). Rates of infectious disease are from five to 60 times higher among providers of commercial sex than in general populations (Jeal & Salisbury, 2004). The risk of homicide for providers of commercial sex is at least 17 times higher than any other occupation or identified group, and the life expectancy of women in commercial sex was found to be as little as 34 years (e.g., Brewer et al., 2006; Dudek, 2001; Potterat et al., 2004; Salfati et al., 2009; Spittal et al., 2006;). After enduring child sex trafficking and extreme levels of risk for rape, assault, homicide, suicide, drug abuse, and infectious disease, prostituted persons often retain only a small portion of their earnings after supporting drug addictions and “third party extortions of net residual earnings” (DeRiviere, 2006). Those leaving the sex trade are often without savings or career skills, and suffer from debilitating health conditions, addictions and mental health disorders (e.g., Choi et al., 2009; Dalla, 2006; DeRiviere, 2006; McIntyre, 1999; Monroe, 2005). It is not only abolitionists (e.g., Farley, 2007; Raymond, 2013) who argue that child sexual exploitation, violence, etc. are normative for those who sell sex. Advocates for decriminalizing commercial sex agree that the majority of women involved in prostitution have been the victims of child or adult sex trafficking, and that other forms of violence and infectious disease are ubiquitous (e.g., Shannon et al., 2009; Strathdee et al., 2009). For example, review of dozens of epidemiological studies led Goldenberg and colleagues (2013) to conclude that “…up to 40% of female sex workers and marginalized adolescents are involved in sex work as youth, and between 10–25% may be forced or deceived into the sex industry.” In that study’s survey, 85% of the sample of current “sex workers” reported being sold for sex before the age of 18. A coauthor of the Goldenberg study (Strathdee) has conducted primary research in which the median ages of entry into prostitution for her survey samples were 16 and 17 years of age (e.g., Shannon et al., 2009; Strathdee et al., 2009). Understanding that commercial sex markets are highly stratified and segmented is a key to resolving the conflicting portrayals conveyed by proponents and opponents (Chapkis, 2000; Lowman and Fraser, 1996; Sanders, 2005; Weitzer, 2012), and for understanding the outcomes of legalization. By all accounts, those involved in street prostitutes make the least money and suffer the greatest violence and distress, and this market occupies the lowest rung on the commercial sex ladder. Somewhat better conditions are generally (but not always) available to those working indoors in brothels, massage parlors, and clubs (Albert, 2001; Argento et al., 2014; Church et al., 2001; Krusi et al., 2012; Sanders & Campbell, 2007; Weitzer, 2012). Operating at the highest levels of the commercial sex business are elite escort services, which some have referred to as serving the “luxury prostitution” or “high-end escort” markets (e.g., Ringdal, 2004). In the top strata, women often feel safer, have greater access to health care, have greater control over their schedules and work environments, attract wealthier clients and can be more selective about providing sex for them, make (and keep) more of the money they earn, and are less vulnerable to violence, drug addiction, and sexually transmitted diseases, (e.g., Albert, 2001; Brents & Hausbeck, 2005; Brents et al., 2010; Donovan, 2010; Jeal & Salisbury, 2007; Sanders & Campbell, 2007; Weitzer, 2012). Such distinctions are important when designing interventions, since the types and magnitudes of harm vary across market segments, and

the likelihood of an intervention (such as changes to law) producing the intended results depends of what market segments are targeted. For example, passing a law that affects the relatively small, high-end indoor market is unlikely to impact the prevalence and incidence of harmful events to the extent that would be possible by a law affecting environment far more “target-rich” for those harms –such as street prostitution and other lower-end segments.

Models for Minimizing Risks

There are long-running debates about how law should be structured to effectively minimize the risks of harm resulting from commercial sex, including whether there should be any laws prohibiting or restricting prostitution. At one end of the spectrum is the position that commercials sex is inherently harmful and should be treated as a crime (e.g., Audet, 2002; Davis, 2000; Farley, 2007; Raymond, 2013). At the opposite end are arguments that prostitution involving consenting adults is victimless and should be either (a) legal and regulated like other businesses, or (b) decriminalized, with the law neither banning nor restricting commercial sex. The latter positions are essentially libertarian, and begin with the assumption that consenting adults should be allowed to exchange sexual services for money, just as they do in any legitimate employment arrangement (e.g., Amnesty International, 2015; The Economist, 2004; Kempadoo, 2005, 2007; Sanders, 2005; Sex Workers’ Outreach Project, 2005; Weitzer, 2007, 2010, 2012). Evidence can be marshaled in support of each position, and sometimes the same evidence is used to support opposing conclusions. For example, prostitution opponents point to drug abuse, community deterioration, and ancillary crime that invariably accompany street prostitution as evidence supporting criminalization and abolition. Those supporting legalization and decriminalization argue that these same dysfunctions are driven not by prostitution itself, but by the criminal status of the enterprise, much like alcohol prohibition fosters black markets, organized crime, and street crime. Legalization proponents generally assume that prostitution cannot be stopped, and argue that legalized prostitution would allow commercial sex to be taxed and regulated, and the conditions for prostitutes improved by the same kinds of oversight and legal protections provided for those engaged in other occupations. National prostitution laws throughout the world are diverse. The most common types are (1) prohibition, where prostitution is illegal in just over half of the countries examined, (54%, Appendix A), and (2) legalization, present in over one-third of the nations (38%). Eleven nations have mixed or limited legality models, such as Sweden, Norway, and Canada where buying and pimping are illegal, but selling sex is not. In India, the act of prostitution is not illegal, but soliciting and prostitution occurring in public places are illegal. In Australia, Mexico, and the United States, prostitution is not strictly prohibited at a national level, but states may pass laws to ban it, or to legalize it and create regulatory systems. Very few countries or states have a complete absence of laws addressing any aspect of prostitution, either to legalize, prohibit, or impose age restrictions.

Overview of Prostitution Law in Nevada

In the United States, criminal law is established and enforced by each of its 50 states. There are exceptions in which federal law has jurisdiction, such as when criminal offenses occur across state or national boundaries, or when the crime is classified as posing threats to national security. Although prostitution was widespread in the U.S. since its inception, state and territorial laws were largely silent about commercial sex until the 1900s. In the Western states before the 1860s, criminal laws and justice infrastructures resembling forms had not yet developed. While there were some crude systems of territorial justice, there was little police interest in prohibiting prostitution. With Nevada’s statehood in 1864, criminal codes were developed, but prostitution was initially ignored. Prostitution was readily available in brothels and saloons of the new settlements established along the transportation routes of the country’s western expansion, following miners, railroad crews, and the military (e.g., Krick, 2002; Rutter, 2005). It was generally welcomed or tolerated in most of the U.S. until meeting substantial Temperance Movement resistance in the early 1900s (Mackey, 2005; McKanna, 1989). By the 1960s all U.S. states except Nevada had passed laws banning prostitution. Prior to the law passed in Nevada in 1971 which prohibited prostitution in the two most populous counties and permitting it in the remaining (largely rural) counties, there was no state law regulating prostitution. Various informal practices and local policies were employed across county and municipal levels, some to criminalize prostitution and others to regulate it, enforced by law enforcement with uneven levels of enthusiasm (e.g., Brents & Hausbeck, 2001; Hausbeck & Brents, 2000). Researchers examining the history of prostitution in Nevada trace the roots of the 1971 law to a 1942 Presidential order banning prostitution near military bases, which affected the markets in Reno and Las Vegas

(Albert, 2002). The suppression order was removed six years later. City officials resisted the return of the red light districts in Reno which had been minimized during the ban, and pursued shutting them down as public nuisances. This action was upheld by the courts, and Las Vegas and Reno succeeded in closing down the open operation of brothels; however, they continued to operate in rural counties (Albert, 2002; Engles, 1980). Seeking to avoid the fate of the urban brothels, an owner near Reno successfully lobbied county officials to pass an ordinance for licensing brothels as businesses and prostituted persons as workers. This local action led to debate in the state legislature, which resulted in statutes that essentially legalized what was already in place in most counties, and banning what had already been banned in the counties with the two largest cities. In 1971, the state legislature passed laws articulated in the Nevada Revised Statutes (NRS) prohibiting prostitution in counties with populations of over 400,000 (NRS 244.245; see Appendix B). This resulted in hardwiring into state law the local bans in the state’s two largest urban centers (Reno and Las Vegas), and permitting prostitution in the remaining counties - most of which had been allowing brothels to operate as long as they did not become public nuisances. The legislation also prohibits “pandering, anyone who forces, decoys, or entices a woman to become a prostitute and to work in a brothel” (NRS 201.300-360), protects spouses from being forced into prostitution, and prohibits forcing women into marriage. NRS Section 201.320 prohibits anyone from living off the earnings of a prostituted person. The NRS also imposes zoning restrictions, keeping brothels minimum distances away from schools, churches, and city main streets. Outdoor prostitution and “outcall” service provided by independent providers of commercial sex are illegal throughout the state. In 1985 and 1986, the Nevada Administrative Code articulated requirements for compliance with the state law (NAC Chapter 441A010-A325 and 441A775-A815). To become licensed to sell sex, regulations require applicants for work in brothels to be tested by state-sponsored health services, and must be free of infectious syphilis, gonorrhea, Chlamydia trachomatis, and HIV. To maintain their license, individuals must submit to weekly or monthly testing, and the results for the listed types of infections must be negative (NAC 441A.800-802). A positive test results in immediate revocation of the permit, and the individual is no longer allowed to work within the brothel system. Soon after the 1971law was passed, 10 of the state’s 17 counties drafted ordinances allowing prostitution and establishing permitting processes and restrictions, and over 30 brothels were established (Engle, 1980). Requirements for operating these businesses and ensuring compliance were handled locally and varied across counties. When the statewide regulatory mandates were established by 1986, over 35 brothels were licensed. The Nevada Brothel Owners Association (NBOA) was formed in 1985 for the purposes of advocating for the legal commercial sex industry’s interests in the state legislature. From 1985 to 2005, the number of brothels remained remarkably stable, with at least 30 operating legally at any one time, staffed by up to 500 licensed women (Brents et al., 2010; Brents & Hausbeck, 2009; Weitzer, 2012). In the mid-2000s, the numbers began declining (e.g., Brean, 2014; Farnham, 2013; Knowles, 2013), and by 2013 the NBOA report that the number of legal businesses had shrunk from 37 to 19 (Farnham, 2013; Veshkin, 2013). More recent published reports have placed the number of operating brothels in at 17 distributed across eight Nevada counties (e.g., Glionna, 2015; Rosch, 2014), and staffed by a total of approximately 150-200 women licensed to sell sex.

Assessing Outcomes of Legalization in Nevada: Research Objectives

Before assessing outcomes, it is important to revisit the basic objectives of the law, and to articulate the conditions that would be necessary for it to produce its intended results. Doing so provides a focus for interpreting evidence and drawing inferences about the effectiveness of legalization. As discussed previously, the core objective of legalization is harm reduction. Proposals to legalize or decriminalize prostitution usually begin with the assertion that treating it has a crime has not made the sex trade safer, less prevalent, or extinct. Criminalization is said to generate rather than alleviate harm by stigmatizing “sex workers,” encouraging police abuses, inviting organized crime involvement, and driving commercial beyond the reach of services and without basic workplace health and safety standards available in other occupations (e.g., Decker et al., 2014; Rekart, 2006; Weitzer, 2012). Nevada’s legislature has sought to avoid these presumed pitfalls by establishing a statewide legal framework under which local governments may choose to ban prostitution, and if they instead chose to allow it the law requires prostitution to be brothel-based. Compliance with a set of very specific regulations is required for legal operation under Nevada law. Creating this system for treating prostitution as a profession occurring in workplaces with health and safety requirements is meant to relieve the industry of the harmful effects of criminalization, e.g., reducing stigma; removing barriers to services; discouraging police abuses; and providing safer work environments.

The primary objective of the present paper is to present an objective assessment of whether Nevada’s legalization of prostitution has resulted in reduced harm. To organize the assessment, we focus on several key conditions that must occur in order for Nevada’s implemented version of legalization to be successful. First, it must be established that conditions within the brothels are better than those in illegal venues. If the legal brothels are not improvements over illegal options, then it is not possible for them to reduce harm. Second, assuming that the conditions and outcomes in legal brothels are improvements over those available in unregulated venues, the legal sector must displace enough of the formerly illegal market to have a significant impact. The benefits of regulated brothels can only be realized if a substantial portion of the local commercial sex activity occurs within the system designed to produce those benefits. Third, if only a small part of the commercial sex activity in Nevada occurs within its legal brothels, the portion of the illicit market replaced by the legal option must be highest-risk segments or strata of the market. If legal brothels serve only the higher, safer levels of the stratified commercial sex market, the harm reduction benefits are minimized, since that part of the indoor market is already at lowest risk whether legalized or not. Fourth, any observed improvements attributable to legalization must not be offset by an expansion of commercial sex markets. Allowing a formerly prohibited activity might expand markets, since it removes potential criminal sanctions that may have deterred potential clients. If rates of harm decline, but markets expand, gains are diminished or negated. Given the conditions necessary for Nevada’s brothel-based form of legalization to be successful in reducing harm, we may pursue answers regarding effectiveness by posing four research questions and examining responsive evidence: (1) are conditions within Nevada’s legal brothels better than those found in the state’s illegal market?; (2) what portion of the state’s commercial sex activity occurs within Nevada’s legal brothels?; (3) has legalization contributed to expansion of the commercial sex industry in Nevada?, and (4) do Nevada’s legal brothels displace high-risk portions of the commercial sex market? The greatest challenges in answering such questions are presented by limitations in data availability and quality. Performance measures for the Nevada’s legal brothels have not been gathered, and there are no accessible administrative databases that collect data for tracking their activity or outcomes over time. There are also few efforts to systematically gather information top gather data on prostitution and its impact outside of the brothels, to examine counterfactuals (i.e., what would be expected to happen without legalization) necessary for a true evaluation. Data on arrests is one of the few exceptions, but it is a measure of police activity and priorities rather than an effective proxy for the level of actual crime incidence. Several good cross-sectional studies of prostitution within the state (e.g., Albert et al., 1998; Brents & Hausbeck, 2005) have provided information useful for descriptive purposes, but they do not support causal inferences about legalization’s impact. With limited data and no prior outcome evaluations, the remaining option is assembling the best available information, corroborating findings from Nevada with regarding comparable legalization efforts elsewhere, and attempting to draw conclusions using defensible assumptions and principles. What follows is an effort to address the four questions above by piecing together available facts, assessing their value for pursuing the present research objectives, and drawing reasonable conclusions based on the weight of the evidence.

1. Are conditions within Nevada’s legal brothels better than those found in the state’s illegal market?

To assess whether legalization has achieved the stated goal of reducing harm through providing regulated and (presumably) safe environments for commercial sex, one must first determine whether the legal brothels are safer than illegal alternatives. While there has been extensive commentary and several studies best described as descriptive or anecdotal, there has been little systematic research on Nevada brothel conditions and no formal evaluations. The few studies that have been conducted find low rates of violence and STIs among those who were currently working in the licensed venues. However, the licensing system causes immediate revocation for anyone testing positive and the studies did not examine infection among those filtered out of the system or deciding to quit working there, the level of STI transmission occurring within the brothels is unknown. In addition, without appropriate comparison groups it is unclear whether levels of violence are lower in the legal brothels than in analogous brothels and escort service serving the same upper stratum of the commercial sex market. The descriptive studies find conditions in the Nevada brothels to be superior to those found in the lower strata of illegal alternatives such as street prostitution, with lower rates of transmission of STIs, inconsistent condom use, and violence. Brents and Hausbeck (2005) have provided the most in-depth examination of violence within the Nevada brothel system. Their study included interviews or questionnaires completed by 65 women selling sex in 13 Nevada brothels between 1998 and 2002. While the study was not designed in a way that would support inferences about the impact of legalization, it did find that women surveyed while working at the brothels reported lower levels

of violence than those found in surveys of women in street prostitution or other illegal venues. The authors concluded that the risk of violence is probably reduced in response to the regulations imposed on legal brothels. Albert and colleagues (1995; 1998; 2002) similarly studied women currently working in Nevada brothels, but examined health risk behavior and outcomes. Researchers interviewed over 40 women licensed to serve in several of Nevada’s brothels, and found low levels of inconsistent condom use and extremely low rates of STIs. Since the two studies of Nevada brothel conditions were cross-sectional (i.e., snapshots of a point in time, rather than longitudinal or time-series), examined small samples, and involved no comparison group, their value in determining the net gain in safety provided by the legalized system is uncertain. Nevertheless, the positive results leave open the possibility that the Nevada legal brothel system has provided safer commercial sex for those able to access the small number of licensed brothels. While the signs are encouraging and leave open the possibility that legalization reduced harm, it is impossible to rule out the alternative explanation that all or part of the positive findings from the measures of STIs and violence may represent selection effects rather than treatment effects.

2. What portion of the state’s commercial sex activity occurs within Nevada’s legal brothels?

Available evidence points to the conclusions that the vast majority of prostitution in Nevada occurs illegally, and the activity within legal brothels is steadily declining. Below we discuss counts of legal prostitution providers, estimates of those operating illegally, and reasons for small market shares and declines in legal brothel business. There is no publicly-accessible system for tracking the numbers of licensed brothels or the number of individuals with valid permits to work within them, but counts and estimates have occasionally appeared in research reports, books, and statements by industry lobbyists. The estimates of the number of legal brothels and licensed women working within them are relatively consistent, usually citing the NBOA as the source and reporting from 30 to 37 brothels operating from about 1985 to 2000. Since 2010 the founder of the NBOA has reported between 17 and 19 legal brothels still in business, and most of those were struggling unlikely to survive the competition from illegal prostitution (e.g., Brean, 2014; Farnham, 2013; Glionna, 2015; Knowles, 2013; Rosch, 2014). Nevada’s legal prostitution businesses had served roughly 400,000 clients annually before the mid-2000s (Heineman et al., 2012). Since then, the numbers have “plummeted,” revenue has declined, and many women have left licensed brothels to work in the illegal sector (e.g., Knowles, 2013).

“When I started as the lobbyist for the industry in 1985, we had 37 brothels in the state. Now we have just 18, and 12 to 14 of them are not doing very well.”

George Flint, Nevada Brothel Owners Association (Knowles, 2013)

“There’s just nothing that’s really working for this unique little industry. I hesitate to say this, but I think legal, regulated sex for sale is on its way out.”

George Flint, Nevada Brothel Owners Association (Brean, 2014)

Researchers and practitioners in Nevada agree that although state law allows brothels to operate legally, the vast majority of prostitution continues to occur illegally, beyond the reach of regulations and safeguards intended to improve health and safety. A report by the Center for Disease Control estimated just 10% of individuals providing prostitution work in the legal brothels(Chase, 2012). This proportion is consistent with results obtained by comparing estimates of the number of people selling sex illegally with counts of those licensed to work legally. For example, local researchers have estimated that there are approximately 3,500 women selling sex illegally in the city of Las Vegas alone (Brents& Hausbeck 2007; Hausbeck et al., 2012; Heineman et al., 2012). The Las Vegas figure is probably an understatement, since commercial sex is a massive industry in Nevada, and large numbers of people are involved in occupations known to frequently involve prostitution. For example, Heineman and colleagues (2012) report that there are over 12,000 persons with permits issued by the Metropolitan Police Department to perform in Las Vegas strip clubs, and that there are approximately 1,200 “outcall” dancers (those offering private stripping performances). There are also thousands of advertisements in Las Vegas for escorts and “adult entertainers” in the city’s printed Yellow Pages and entertainment magazines, online, on billboards and vehicle signage, and in leaflets and cards distributed on Las Vegas streets. Even if only very small percentages of those in stripping and escort services engage in prostitution, the number selling sex illegally in Las Vegas would certainly be well over 5,000,

and some estimates are much higher. For example, Knowles (2013) reports that city officials estimate over 30,000 women are working in prostitution in Las Vegas. Examining illegal prostitution only in Las Vegas certainly underestimates the state total. Converting the Las Vegas estimates (5,000 to 30,000) to per capita rates and applying them to the city of Reno would add between 1,900 and 11,600 provides of illegal prostitution. The Reno and Las Vegas totals still would produce underestimates, since prostitution is also illegal in Carson City and two other counties besides Clark and Washoe, and according to the NBOA and others, people sell sex illegally in via the internet and by other means in counties with legal brothels. Even ignoring all illegal prostitution except that occurring in Las Vegas and Reno, one can estimate that there were 7,000 to 42,000+ illegal providers in Nevada during a timeframe when no more than 200 to 600 were licensed to sell sex legally (Brents& Hausbeck 2007; Hausbeck et al., 2012; Veshkin, 2013). These figures place the estimated portion of prostitution occurring outside of the legal brothels between 91.4% and 99.5%. It is therefore empirically defensible and probably conservative to conclude that 90% of prostitution in Nevada occurs in the illegal market. Those studying Nevada’s legalization effort over the past 40 years agree that the legal brothels never captured more than a small share of the market, and has been declining for over ten years. There are several reasons for the small and declining share including the inability to compete on price, limited range of “services” provided, and inaccessibility. Compliance with regulations necessary for licensing drives up costs, prohibits providing some things for which there is demand (such as sex with minors and without condoms), and places brothels in locations unavailable for those unable or unwilling to travel an hour or more from the population and tourism centers of Las Vegas and Reno. The very requirements and restrictions that are intended to ensure safety and reduce harm raise the operating costs of legal brothels far beyond the minimal overhead costs of illicit operations. Legalized prostitution in Nevada requires paying taxes, fees, and costs incurred to ensure compliance with health and safety regulations. Obtaining and maintaining licenses for both businesses and individual provider/contractors is expensive. For example, the owner of four brothels payed during one year $369,600 in licensing fees, and $17,800 for individual work permits (Veshkin, 2013). The requirement to work only within licensed brothels also incurs operating costs beyond those necessary for unregulated and illegal providers. For example, brothels must:

 Operate only within licensed “brick and mortar” establishments - inherent costs in addition to fees and taxes include utilities, rent or mortgage, insurance, maintenance, and meeting fire, safety, and health codes for places of businesses (illegal providers can do outcalls to rooms or residences provided by the clients, or in cars or public places available to providers at minimal or no cost).  Abide by regulations specific to the brothel industry - e.g., the law requires “panic buttons” in all bedrooms (no such requirements exist elsewhere).  Hire only licensed persons and have cleared monthly or weekly health inspections (providers operating illegally can operate while infected and without ever paying for screenings or licenses).  Pay for support staff/services – e.g., security, reception, accounting, cleaning, laundry (outcalls and public places incur none of these direct costs).  Pay commercial sex providers – prostituting women work as independent contractors and usually keep 40% - 60% of the revenue (many pimps take most of all of the revenue, paying prostituted individuals a small percentage or taking all of the money and paying only for necessities).

As discussed above, the number of brothels remained stable through the 1980s and 1990s, but have since fallen. Some of this decline is attributable to the internet. As use of the web to facilitate all forms of commerce grew in the 1990s, police and others nationwide noticed increased online solicitation of commercial sex (e.g., Booth, 2007; Hughes, 2003; LaPeter, 2005; Milrod & Monto, 2012; Roane, 1998; Ross, 2005; Sanders, 2008). By the mid-2000s it became clear that online solicitation was producing substantial changes in commercial sex, such as expanding the range of people buying and selling, decentralizing activity geographically, and distributing it more broadly across types of businesses and locations. In response to online ads, transactions could be arranged via phone, email, text, social websites, or gaming systems, and the actual exchange of sex for money could occur practically anywhere. The internet has helped commercial sex market to expand (e.g., Roe-Sepowitz et al., 2013; Sharp & Earle (2003), but also has displaced traditional venues such as brothels (Cunningham & Kendall, 2011). Observers throughout the country noticed reductions in street prostitution on traditional “strips” or “strolls,” and more online activity consummated in homes, hotels, or legitimate storefront businesses (Hughes, 2003; Perer, 2011; Shively, 2008). Women working in Nevada’s legal brothels also began making greater use of the internet (Albert, 2002) to either draw business to the brothels, or for “moonlighting” while away from the brothels. Some prostituting women found internet solicitation more lucrative and flexible and quit working in the legalized system.

"As business has fallen off, many of the girls have moved from the brothels to illegal prostitution. They don't always do that in an attempt to be illegal, but in the high-tech world we live in, a lot of girls have their own website, or ads on Craigslist, and a lot of girls are taking some pretty big chances right now."

George Flint, Nevada Brothel Owners Association (Morris, 2013)

Legalization also places restrictions on services and providers that do not encumber illegal providers. For example, regulations for prostitution in Nevada understandably prohibit minors from working legally in brothels, but there is a very robust demand for sex with those younger than 18 years of age (e.g., Estes & Weiner, 2002). As discussed above, approximately half of all those who sell sex first did so as a minor (e.g., Goldenberg et al., 2013; Shannon et al., 2009; Strathdee et al., 2009). A study in Atlanta (Shapiro Group, 2010) found men calling in response to online ads to seldom say they were seeking minors, but when told the only available person was under- aged, over 40% continued to make arrangements to buy sex. Also understandably, brothel regulations in Nevada require condom use for penetrative sex. However, there is a robust demand for commercial sex without condoms, and providers who consistently insist on their use make less money and increase their risk of violence from customers (e.g., Adriaenssens & Hendrickx, 2012; Rao et al., 2013; Wojcicki & Malala, 2001).

3. Has legalization contributed to expansion of the commercial sex industry in Nevada?

Data don’t exist that would allow a definintive answer via time series analysis to assess the impact of legalization, but all indicaitons suggest that it has contributed to a local culture highly tolerant of (and sometimes overtly encourgaging) commercial sex even where it remains illegal, in Las Vegas. Nevada’s population center and main tourist destination has earned a global reputation and the nickname “Sin City” from its acceptance of a large and highly visible commercial sex industry (e.g., Sheehan, 2004). From their extensive study of prostitution in Nevada, Heineman and colleagues (2012:17) concluded: “While prostitution is illegal in Las Vegas, the city is internationally recognized as a highly sexualized tourist destination with a flourishing market in commercial sexual entertainment and services.” In the midst of all this acceptance of commercials, the problems that invariably follow generate complaints to police that spur most arrest operations. While arrests reflect police activity as much as crime levels, there is still some association between the two and can contribute to an understanding of the relative size and trends in commercial sex markets. Appendix D presents a comparison between Nevada and an adjacent state, Arizona, and their respective urban centers, Las Vegas and Phoenix. As can be seen here, comparison of both state and city comparisons find Nevada to have 10 times the per capita rate of arrests for prostitution than were found in Arizona. While this itself does not constitute proof of a legalization effect, and many factors besides law contribute to arrest rates, the magnitude and direction of differences between abutting states is consistent with the hypothesis that legalization contributes to expansion of prostitution activity.

4. Do Nevada’s legal brothels displace high-risk portions of the commercial sex market?

Nevada’s legal brothels clearly serve the higher-end, elite or luxury prostitution segments of the commercial sex market. There is no evidence that legalization has shifted prostitution occurring in high-risk venues into safer, regulated environments. Minimum charges and average amounts spent provide indicaitons of where the legal businesses fit within the Nevada’s prostitution landscape. As discussed above, Nevada’s regulations drive costs upward. Most brothels have a minimum charge of $150, and can be up to $300. Average amounts spent in legal brothels are reportedly between $200 and $600 (e.g., Veshkin, 2013; Wood, 2015), and the average transaction at one of the more “upscale” legal brothels is reportedly $900 (Morris, 2013). The more lucrative brothels report having occasional “high roller” customers that have spent between $75,000 and $2.4 million for multiple-day sessions with multiple women (Rascon & Johnson, 2015; Wood, 2015). While the highest levels of illegal escort service prostitution or exclusive private clubs may meet or exceed these prices (e.g., Elkind, 2010) , the majority of illegal venues and providers charge less. Prices listed in online advertisements are typically below the range for average brothel transactions. If the legal brothels displace any of the illegal market, it is certainly not the most dangerous sectors. By all accounts, street prostitution is the most dangerous of all venues (e.g., Argento et al., 2014; Church et al., 2001; Duff et al., 2015; Krusi et al., 2012; Sanders & Campbell, 2007; Weitzer, 2012). Prices for street prostitution transactions

seldom surpass $50, and the average hourly wage has been found to be less than $30 (e.g., Levitt & Venkatesh, 2007). Brothel prices are about ten times higher than those for street prostitution, making legal prostitution cost prohibitive for most of those operating in street markets. In addition, the steps necessary to comply with regulations select against the most vulnerable providers of prostitution. Compliance requires entering into contracts for continuous weeks of service at brothels, abiding by all rules such as dress codes and behavior, universal condom use, refraining from illegal drug use, and keeping health certifications up to date. Women engaged in higher-risk commercial sex (i.e., street prostitution) often suffer from traumatic stress, behavioral health issues, drug addiction, depression, and STIs (either as pre-existing conditions or as results of commercial sex), either disqualifying them automatically or making it difficult to comply with the extensive rules and regulations of legal brothels. While there is evidence that Nevada’s legal brothels are relatively safe from infectious disease and violence, none of the other conditions for substantially reducing harm appear to be met. It is unclear whether the positive indicators in the brothels are selection or treatment effects, and even if the latter, affect only a very small portion of the commercial sex market. Very little of the presumably more dangerous illegal prostitution in the state has ever shifted to the relative safety of licensed brothels. Furthermore, the small portion that may have shifted was almost certainly the lowest risk segments least in need of the protections offered by regulation.

Corroboration from International Studies

The above findings are empirically supported and defensible, but are built without the benefit of without rigorous evaluations and rely upon descriptive and correlational data. It is therefore important to seek corroboration. The next section of this paper places the results from Nevada in the context of research from other countries that have established comparable brothel-based, legalized systems. Similar to the results from Nevada, research on legalization in other countries typically finds lower rates of STI transmission and violence in legal brothels than are found in most other venues, but that the majority of the market remains outside of the legal system and therefore unaffected and unimproved by legalization. For example:

 A study of prostitution in four Australian states that have legalized prostitution systems, found low rates of STIs and human trafficking, and high rates of condom use in licensed brothels (Donovan et al., 2012). But they also found 50% to 90% of the market to operate illegally, outside of the regulations presumed to achieve positive results in the legal system, and the unregulated brothels were found to have poor occupational health and safety standards (Donovan et al., 2012; Prostitution Licensing Authority, 2009). The large expansion of both the legal and the illegal sectors after legalization led to the conclusion that the legislation had not met its intended purposes of minimizing the harm in prostitution and controlling expansion of the industry (Sullivan et al., 2002).  Evaluations of legalization in the Netherlands found the new system did not solve a number of serious, targeted problems in the sex industry (Outshoorn, 2012). The law created a licensed brothel sector where few minors or undocumented persons worked, but there was displacement from brothels to illegal escort services and evidence of continued abuse and trafficking of prostituting women.  Three studies of the impact of legalization in Germany were commissioned by the German federal government, and the summary report concluded that “Prostitution should not be considered to be a reasonable means for securing one’s living” (Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, 2007:80).

In addition to single-country studies, there have been many cross-national assessments of outcomes of legalization. For example,

 Jeffreys (2010) examined policy in Australia and the Netherlands, and found that escorts continued to operate illegally and could not be regulated or controlled, undermining efforts to improve safety by establishing legal, regulated brothels. Rather than reducing harm, the negative impacts of prostitution were exacerbated by legalization. Jeffreys concluded that the policy of legalization is “doomed to fail” in achieving its stated objectives of harm reduction.  Bindel & Kelly (2003) examined legal responses and their implementation in four countries (Australia [Victoria], Ireland, the Netherlands, and Sweden) and concluded that legalization had not delivered on promises to reduce illegal street prostitution, had not resulted in decreased human trafficking (and may have produced increases), and “is not a viable option” for effectively managing commercial sex.

 Kelly and colleagues (2009) compared the legal frameworks, methods of implementation, and outcomes of attempts at prostitution harm reduction in nine countries (Australia, Finland, Germany, Ireland, Netherlands, New Zealand, Spain, South Africa, and Sweden). They concluded that attempts to regulate prostitution as a form of work like any other had failed. Evaluations of attempts to integrate prostitution into the formal economy identify a number of barriers, some of which may prove insurmountable, such as: (a) regulation is invariably under-enforced and has led to unchecked growth and lack of enforcement in illegal sectors, creating disincentives for the licensed brothels to comply with policy; (b) violence persists in spite of legalization, with no compelling evidence of enhanced safety being achieved; and (c) the intended normalization of prostitution did not reduce stigmatization of women who sell sex, did not reduce reluctance to report violence to police, and did not improve access to health services.  Jakobsson & Kotsadam (2013) examined the relationship between the structure of prostitution laws and measures of human trafficking in 39 nations. The data analyzed were assembled by the United Nations Office on Drugs and Crime and included information from 113 institutions providing human trafficking information in 161 countries. They found that sex trafficking was most prevalent in countries where prostitution was legal.  Cho and colleagues (Cho, 2012; Cho et al., 2013) analyzed cross-sectional data from 150 countries and found that those in which prostitution was legal experienced larger reported human trafficking inflows than in countries where prostitution was partially or fully prohibited.

Discussion

Among the few issues on which both opponents and proponents or prostitution agree is that commercial sex is inherently dangerous, and its risks are exacerbated by ineffective legal responses and policies. Opinions diverge when considering the best ways to respond when attempting to reduce risk and ameliorate harm. Legalization proponents argue that prostitution is inevitable, so it is best to regulate it and gather taxes and/or fees to support the infrastructure necessary for compliance and enforcement. This paper examined one type of response (legalization) in one state (Nevada, United States), and sought to triangulate findings with studies of legalization in other countries. From an examination of the literature and available data on prostitution in Nevada and elsewhere, there is little reason to believe that instituting legal brothels has significantly improved safety and reduced health risks. Several conditions must be in place for the intended benefits of legalization to be realized, and most have not been met. Legal brothels offering relatively safe conditions is a necessary condition, but not sufficient since there could be offsets such as market expansion. There is evidence that legalization in Nevada has helped to expand the scope of prostitution in the state, rather that the intended displacement of a dangerous, illicit market with a safer alternative. Whatever benefits may be attributable to working within brothels may have negligible impact if most of the market continues to operate illegally and beyond the safeguards offered by regulated environments. To substantially reduce harm, the majority of the commercial sex market must operate within the legal system, and if it does not, then the portion displaced from illegal to the safer legal sector must be the high risk sectors. If legalized prostitution must occur in brothels that are costly to operate and must adhere to strict standard for certification, they price themselves out of possibly shifting the market away from more dangerous street prostitution and lower-level outcall operations and toward safer conditions. Expensive legal brothels are likely to simply carve out a niche within the upper echelons of the indoor commercial sex, absorbing a small part of the sector of illegal prostitution least in need of harm reduction interventions. Costs are driven higher and accessibility is limited by Nevada’s regulations, and a wider range of services can be obtained more readily for a fraction of the cost by providers operating without these costs and restrictions. Most incentives favor the illegal market. Buyers can purchase at lower costs and may do so anywhere in the state, including purchasing “outcalls” to their residence or a hotel. A substantial portion of buyers seek to purchase sex without condoms, or from minors. Some buyers are willing to pay a premium for either, and both are prohibited in legal brothels. Women working outside of the legal brothels have greater control over their schedules, pricing, locations, and condom use; do not have to commit to weeks without leaving brothel grounds; do not have to surrender 50 to 75% of their revenue to brothels; do not have to expend the time and money needed for frequent health inspections and certification; and do not have to stop work if they become infected. Commercial sex providers can charge lower prices to remain competitive, but generate more net income working independently. Legalization also fails to improve circumstances for those most in need of protection and harm reduction: child commercial sex providers and others with acute vulnerabilities. Among the various risks and negative outcomes unimproved by legalization is the commercial sexual exploitation of children and adolescents. While most studies show the most common entry into commercial sex to meet the criteria for child sex trafficking,

legalized prostitution cannot address the abuse of children, since Nevada does not allow minors to be licensed for brothel employment. In addition to youth, providers of commercial sex (particular on the streets) are more likely to abuse substances, have PTSD from either childhood abuse or commercial sex, behavioral health challenges, mental illness, or learning disabilities. Brothel regulations work against hiring people with such risks, limitations, and symptoms, systematically selecting those who are already highest-functioning and least symptomatic, and denying the opportunity for safer workplaces to those with greatest risks and needs. In order to work in brothels, one must have the stability and skills to cope within a workplace with stringent regulations and expectations purposely modeled after more traditional work environments. Regulations also disallow employing those who have contracted STIs, which again is more likely for providers with greatest risk and need profiles. The lack of hard evidence of success, and abundance of evidence questioning or refuting the harm reduction value of legalization in Nevada is corroborated with numerous studies of similar policy approaches in other countries. Most assessments find, at best, no substantial aggregate harm reduction. Many other studies find lack of enforcement of regulations within the legal systems, rendering the intended safeguards meaningless, and find actively negative consequences such as expansion of illegal and unprotected prostitution, and increases in human trafficking. Taken together the weight of the evidence suggests that legalization has not produced the intended benefits, and may have expanded the prevalence and incidence of harmful events and outcomes.

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Appendix A

Table 1: Distribution of National Prostitution Laws

Legal Status Number of of Prostitution Countries Percent Examples Illegal 109 54 China; Republic of Korea; South Africa Legal 77 38 Argentina, Germany, Netherlands Restricted 11 5 Australia; India; Sweden No laws 5 2 Bulgaria, Indonesia; Mozambique Total 202 99* Source: ChartsBin, 2012. See also Institute of Development Studies, Sexuality, Poverty and Law Programme, 2015; Prostitution ProCon, 2015. * Not 100% due to rounding

Appendix B

Key Nevada Prostitution Laws and Regulations

NAC 441A.800 Testing of sex workers; prohibition of certain persons from employment as sex worker. (NRS 441A.120) A person must not be employed as a sex worker until the State Public Health Laboratory or a medical laboratory licensed pursuant to chapter 652 of NRS and certified by the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services has reported that the tests required pursuant to subsection 1 do not show the presence of infectious syphilis, gonorrhea, Chlamydia trachomatis or infection with the human immunodeficiency virus (HIV).

A person employed as a sex worker shall submit to the State Public Health Laboratory or a medical laboratory licensed pursuant to chapter 652 of NRS and certified by the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services: (a) Once each month, a sample of blood for a test to confirm the presence or absence of: (1) Infection with the human immunodeficiency virus (HIV); and (2) Syphilis. (b) Once each week if the sex worker is female and has a uterine cervix, a cervical specimen for a test to confirm the presence or absence of gonorrhea and Chlamydia trachomatis by culture or antigen detection or nucleic acid testing. (c) Once each week if the sex worker is female and does not have a uterine cervix, a high vaginal specimen for a test to confirm the presence or absence of gonorrhea and Chlamydia trachomatis by culture or antigen detection or nucleic acid testing. (d) Once each week if the sex worker is male or transgendered, a urethral specimen for a test to confirm the presence or absence of gonorrhea and Chlamydia trachomatis by culture or antigen detection or nucleic acid testing. (e) Once each week if the sex worker is employed in a licensed house of prostitution which does not have a written policy that explicitly prohibits engaging in any form of anal intercourse, a rectal specimen for a test to confirm the presence or absence of gonorrhea and Chlamydia trachomatis by culture or antigen detection or nucleic acid testing. 4. If a test required pursuant to this section shows the presence of infectious syphilis, gonorrhea, Chlamydia trachomatis or infection with the human immunodeficiency virus (HIV), the person shall immediately cease and desist from employment as a sex worker.

NAC 441A.805 Use of latex or polyurethane prophylactic required.

NAC 441A.815 Person in charge of house of prostitution: Report of presence of communicable disease required; cooperation with health authority required. (NRS 441A.120)

Source: http://leg.state.nv.us/NAC/NAC-441A.html#NAC441ASec800

Appendix C

Population Residing Where Prostitution is Legal Versus Illegal Area Population Nevada Counties - Prostitution Legal Churchill County 23,989 Elko County 52,766 Esmeralda County 822 Eureka County 2,018 Humboldt County 17,279 Lander County 6,009 Lyon County 51,789 Mineral County 4,500 Nye County 42,282 Pershing County 6,698 Storey County 3,912 White Pine County 10,034 Subtotal 222,098 Nevada Counties - Prostitution Illegal Clark County 2,069,681 Douglas County 47,536

Lincoln County 5,184 Washoe County 440,078 Carson City 54,522 Subtotal 2,617,001 Nevada total population 2,839,099 % Nevada population residing where prostitution is 92.18 % illegal U.S population 318,857,056 U.S. population residing where prostitution is illegal 318,634,958 % U.S. population residing where prostitution is illegal 99.93 %

Appendix D

Prostitution Arrest Rates in Nevada and Arizona, 2014

2014 2014 Prostitution Prostitution 2014 Arrests Per Arrests* Population 100,000 Arizona Statewide 885 6,731,484 13.14 Maricopa County/Phoenix 781 4,087,191 19.10 Nevada Statewide 3740 2,839,099 131.73 Clark County/Las Vegas 3652 2,069,681 176.45

* Sources: Arizona Department of Public Safety. (2015). 2014 Crime in Arizona Report. Nevada Department of Public Safety. (2015). 2014 Crime in Nevada Report. General Services Division.