Bad Women Deserve Equal Protection: A Look at the Constitutionality of the Florida Prostitution Statute

Authors

Patricia Padrino

First Page

641

Document Type

Comment

Abstract

Laws against prostitution are antiquated and based primarily on moral considerations. While there is moral outcry against the proliferation of prostitution, prostitutes themselves are allowed to take the blame and suffer the punishment for its practice. Although prostitution is often referred to as a victimless crime, the criminalization of prostitution certainly victimizes prostitutes. Laws criminalizing prostitution in the United States do nothing to benefit society and everything to harm prostitutes themselves. One way to attack these laws in Florida is to show that they violate the equal protection rights guaranteed by the Constitution of the United States. By approaching the problem from a legal standpoint, the inadequacy of the moral justifications in support of laws prohibiting prostitution becomes apparent. This article begins with a brief overview of various feminist viewpoints and an explanation of the need for feminists to unify behind a common cause. Conflicting viewpoints among feminist groups concerning the best way to help prostitutes have weakened the ability of those groups to effect change in this area of the law as they have been able to unite to effect change in other areas, such as domestic violence, sexual harassment, and rape law. One common goal shared by feminists is to change the way in which prostitutes are viewed by society. By showing that prostitution laws are unconstitutional, feminists can prove to society that these women are being marginalized without justification. The next section explains and applies the equal protection analysis in order to demonstrate the unconstitutionality of Florida's prostitution statute. A statute may violate the equal protection clause expressly, in effect, or in application. The Florida statute violates prostitute's' equal protection rights in the way it is applied by Florida law enforcement in that significantly more women than men are arrested for prostitution. This disparate enforcement is a result of purposeful discrimination against women. Courts should carefully examine the Florida statute and refuse to accept the flimsy rationalizations offered in support of these laws. Prostitutes are also treated unequally in comparison to other women and to other people in general. If gender is an issue, courts may apply a heightened standard in deciding the constitutionality of laws against prostitution. Gender, however, may not be implicated in every circumstance. Therefore the standard applicable to a particular situation may vary according to the magnitude of its gender implications. The evils of prostitution are not the women who practice it, but the degradation and brutality they suffer because they are not protected by the law. This paper concludes with the proposition that decriminalization of prostitution is the most effective way to remedy these evils. The inequalities that exist in the way prostitutes are viewed morally and physically must be addressed and remedied.

Recommended Citation

Patricia Padrino, Bad Women Deserve Equal Protection: A Look at the Constitutionality of the Florida Prostitution Statute, 14 St. Thomas L. Rev. 641 (2002).
Available at: https://scholarship.stu.edu/stlr/vol14/iss3/6