Monday, March 3, 2014
Amanda J. Peters (South Texas College of Law) has posted Modern Prostitution Legal Reform and the Return of Volitional Consent on SSRN. Here is the abstract:
For decades, prostitution laws in America have focused exclusively on contractual consent: the agreement to exchange sexual services for a fee. Courts and legislatures alike ignored volitional consent, or traditional mens rea, by concentrating on the offer and acceptance of the prostitution agreement. In this way, the law disregarded the actor’s choice to engage in the crime. The de facto strict liability nature of the offense rendered it nearly impossible for prostitutes to successfully raise the defenses of duress and necessity. The failure of the law to distinguish between voluntary and involuntary prostitution resulted in charges, trials, and convictions against involuntary actors.
Scholarship has failed to recognize a distinction between contractual and volitional consent within prostitution laws nationwide. Moreover, no article has yet examined all measures of modern prostitution legal reform, its effects, or its return of the element of volitional consent to prostitution statutes. This Article examines the pre-reform contractual nature of the element of consent, the reform’s return of traditional mens rea, and the historical underpinnings of volitional consent in prostitution legal jurisprudence. By distinguishing between individuals who possess the requisite mens rea to commit prostitution and those who do not, modern prostitution reform does more than merely safeguard against unjust convictions: it restores the element of volitional consent to its rightful place within the criminal offense of prostitution.