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The Positive Research On Prostitution Criminal Policy

Posted on:2006-08-18Degree:DoctorType:Dissertation
Country:ChinaCandidate:J ZhaoFull Text:PDF
GTID:1116360182965697Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Prostitution is one of the most ancient occupations in the world, and the controversy over this problem has already kept on for more than 2,000 years. Nowadays, laws banning, limiting or protecting Prostitution all exist in the world, while the situation in the realm of theory being similar. However, it is very realistic social problem to deal with the prostitute phenomenon, which cannot be solved just depend on reasoning logically and Judging according to the morals. Today, facing the notional change of social ethics and social concept of value, facing the more and more strong right consciousness of the citizen, facing the progress of the national rule of law, facing such burning problems of the day as corruption, underworld, poverty, iniquity, and the spread of HIV, How should we modify and adjust our criminal policy and law regulating the prostitution? Absolutely, this is a topic which should be studied historically and concretely according to different ages and regions. In order to avoid the limitation of the pure logic reason or the morals judgment in this academic realm, not to repeat those arguments carried on by people of the past, which could not result in anything, this research adopts the substantial evidence method. Using the method of sociology, I spent a whole year to make my typical model investigation on the problem in the Y City. According to the fact materials obtained by dissecting such a sparrow as Y City, this paper introspects the current criminal policy dealing with prostitution and the law guided by it at the angles of equity and utility.At the angle of equity, it depends on the social harmfulness of the behavior whether punish it or not and how to punish it. Guided by different theories, understandings of criminal essence and social harmfulness are different, which would result in different evaluations on prostitution and the current banning law. To avoid such final outcome as far as possible, this paper examines prostitution and its connective behavior from both of the two aspects, which is violating the legal interests and breaching the public order.From the aspect of violating legal interests, the research is carried on in chapter 2 adopting such methods as "entering-circle observation" and individual cases interviews mainly.Aim at the standpoint that prostitution and its connective behaviors break thestability of marriage and family directly and seriously, the paper examines the marriages and families of some female sex workers and clients. As a result, there is no strong evidence found to manifest such kind of point. Contrary, it is found that those common sexual behaviors outside marriage such as adultery have stronger destructiveness for people's family than commercial sex trade business does. But those common sexual behaviors outside marriage are neither criminal offences, nor law-breaking behaviors. Thus, only for the sake of the stability of marriage and family, it is illogical for the current law to criminalize or illegalize prostitution and its connective behaviors that violate legal interests more slightly while legalizing the serious latter.On sexual transmission of STDs and HIV, the result of this investigation shows that the risk of spreading STDs and HIV in commercial sex trade is smaller than that of the common sexual behaviors outside marriage, and the risk in the sex work organized highly is also smaller than that in those organized loose. So, in the eyes of the prevention of STDs and AIDS, it is also doubtful for the current law to criminalize, illegalize or punish such behaviors with smaller risk of spreading STDs and HIV severely as prostitution and its connective acts.As for prostitution inducing crime, this paper focuses on the relationship between prostitution and drug crime. As a result, it's someone's living-circle of drug-abusing that seduces him to take drugs usually. The general situation is not the sex trade business inducing or enhancing the drug-abusing but the latter inducing or enhancing the former. In fact, it avoids the occurrence of some serious crimes to spend the money earned through sex work on drug consumption. Obviously, it is also something to lose ground to punish prostitution and its connective behaviors generally just for the sake of inducing other crimes.In the last section of chapter 2, this paper examines three kind of prostitute connective behavior with punishable irregularity in the actuality life, which leads to some conclusions as follow. It is very unfair for the current law to criminalize and punish organizing others for prostitution that is victimless severely together with those crimes violating legal interests seriously such as forcing others into prostitution and controlling others for prostitution, which leads to serious unbalance between crime and penalty; Unexpectedly, the current law doesn't regulate those behaviors violating legal interests obviously such as exploiting income of sex workers and solicitingcustomers openly by specialized ruling, which presents the characteristic of non-right basis in the current criminal policy and law regulating prostitution at another angle.From the aspect of breaching the public order, the investigation is carried on in chapter 3 with the questionnaire. The sample constitutes according to the population of the Y City, which manifests the people's idea as follow.In the eyes of all the interviewees, the degree of revulsion against prostitution is only 18.44%-25.08% of that against those common sexual behaviors outside marriage such as adultery that is legal. Meanwhile, more than 60% of the interviewees think that the current law punishes prostitution too sternly, and more than 40% of the interviewees demonstrate definitely that prostitution shouldn't be punished.The degree of revulsion against introducing others into prostitution for the interviewees as a whole is far lower than the degree the criminal law preconceived, which is just 1/9 of the latter. The former is even lower than the people's degree of revulsion against some sorts of immoral sexual behavior impunishable in the criminal law. At least, 96.25% of the interviewees think that our criminal law punishes the behavior of introducing others into prostitution too sternly, and 61.25% of the interviewees oppose the law to treat this behavior as a crime.As the idea of all the interviewees, the most serious type of offence organizing others for prostitution but forcing nobody is not as immoral as other familiar offences with equal punishability in the current criminal law. At least, 99.25% of theinterviewees think that the criminal law punishes "those organizing others for......prostitution" too sternly if the case is especially serious", and 74.5% of the interviewees regard the current law to regulate organizing others for prostitution as an absolutely rigorous act!1 Obviously, as long as the investigation method, the process of operation and the result in this paper are acceptable, it could be concluded that the current banning law has already lost the support of "the social average person " and "the social idea" along with the change of the ages, because of the legislation principle which would punish all types of prostitution and its connective behavior generally without distinguishing including those victimless types. Thus, the investigations from both the aspects of violating legal interests and breaching the public order lead to the same conclusion, which indicates the unfairness of punishing the victimless prostitution andits connective behavior.Take utility as an angle of view, the establishment of the law should depend on its actual cost and effectiveness. So, the investigation of chapter 4 is carried on from both of these tow aspects of the current law. The fact materials this part of study bases on are mainly obtained through interviews. For the sake of the reliability of which the interviewee's statement, I make use of the method of working as a servitor to carry on participating observations. Meanwhile, This investigation still partly refers to the related data collected from some practical departments in Y City.First, this chapter analyzes the economic costs of the current banning law by investigating the work time spent on prostitution cases by the police. For the polices engaged in banning prostitution in grass-roots, the real motive power of banning mainly comes from the economic performance brought in through fine. However, the motive power of banning has already weakened largely because of the sharp descent of economic performance in prostitution case, along with the variety of commercial sex trade, the change of people's sexual idea, the normalization of enforcing the law and judicial activity, the rouse of the people's law consciousness, and the manpower costs of the police becoming to increase doubly which wasted on the prostitution case. On the other hand, it is impossible for the police to spend the same great deal of manpower on prostitution case as they did in the 90's,to deal with the increasingly rigorous social public order. Even in that age, prostitution was not banned absolutely. Therefore, on the day of stressing human rights, freedom and rule of law, the nation is incapable of devoting the huge manpower, financial power and material resources to implementing the current banning law and forbidding prostitution absolutely.To some extent, the examination into the social costs of the current banning law shows the price of enforcing the law illegally at which the police obtained those glorious result at the golden age of banning prostitution in 90's; It is the banning law that provides those officials or potentates some convenience to enforce the law selectively and differently, or to look for" rent", while the law criminalizing or illegalizing a great deal of victimless behaviors executed privately and voluntarily; Under this law background, banning prostitution becomes a means of the power and their satellites to the end of squeezing out the rivals, monopolizing the sexual service market, and obtaining the exorbitant profits, which makes our society more unfair and breaks the people's law faith undoubtedly; Similar to all of the laws criminalizingor illegalizing victimless behaviors with large value of making money the modern society, the law banning prostitution induces other crimes with more serious social harmfulness too, while driving the sex industry to the underground and edge of society. As a result, those underworld organizations being more competent in the black market become more and more strong.Having paid such high price, the current law has no effectiveness expected by the lawmaker. Enforcing the banning law doesn't lead to forbidding prostitution absolutely to resolve such a long-term social problem, but only decides some technique problem of sex industry, for example, its executive, business model, and the concrete way for prostitute, etc.; At the same time, the current banning law not only fails to prevent the spread of STDs and HIV, but also interrupts people's prevention efforts to some extent; As for supporting our marriages and families, the function ofthe banning law is less than insignificant------With profound social background, thetrend of modern marriage and the change of people's sexual concept have nothing to do with the law forbidding prostitution.The current criminal policy and its banning law are neither fair nor valid, which is what I find through this investigation. As anybody can see, the conclusion is self-evident, needing no more argument or any good method invented to rescue the world. What we should do next time is to find out more positive proof using stricter and more scientific method to support, revise, or overthrow the conclusion of this paper. By this means, the knowledge will move on, and the problem will be resolved.
Keywords/Search Tags:Prostitution, Criminal policy, Positive research
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