Is criminalization a good prevention tactic?

For many things that people may think are wrong, or should be eliminated or prevented, the first (or often main) tactic for dealing with them is criminalization. This applies to things like sex work, abortion, drugs, immigration, domestic violence (and many more). Criminalization means that you make the said thing illegal, criminalize the behavior and attach penalties to engaging in it, often which can include time in prison.

A few of these issues, in particular sex work and abortion, are often hotly debated in feminist circles. There are people within our movement in various positions on the issue, but I’ve realized that often a more important question than our opinion about the actual act is the tactics proposed to deal with it.

The first time this became apparent to me was listening to Andrea Smith speak on a panel I was on at a Reproductive Justice conference in Oklahoma. She made the connection when talking about the anti-abortion movement in the US currently, which she argued is actually more of a pro-criminalization movement. (Smith’s work is incredible, by the way, you should definitely check it out).

While the debate about abortion rages on, it is clear that the tactics used by the anti-abortion movement in the US currently are focused on criminalizing the practice as a way to prevent it. They want to pass laws that limit access, ban procedures and put up road blocks to obtaining the procedure via legal channels. One question this brings up: Is criminalization an effective prevention tool? Does criminalizing something reduce its incidence?

There is a lot of evidence to say that criminalizing something doesn’t actually eliminate it–and usually results in making the thing itself more dangerous. Think about abortion before Roe, or abortion in any of the countries around the world where it is illegal. Abortions still happen, they’re just more dangerous because of the black-market means women use to access them. Same thing could be said for sex work, drugs or immigration.

One of the fundamental tenants of criminalization is that it acts as a deterrent to the practice or crime. If people know that a given act is illegal, they are less likely to practice it for fear they will go to jail. This has also been widely debated, and I think there are strong arguments to say that criminalization is not actually a deterrent. (This is a study by Amnesty International about the effectiveness of the death penalty as a deterrent to homicide).

We live in a penal society, which means that the criminal legal system underpins much of what we do, and is often the first place we go when trying to regulate behavior. But there are a whole range of tactics that could be the focus of campaigns to eradicate or reduce certain behaviors that don’t rely on criminalization at all, and that might even be more effective forms of prevention.

With abortion, it’s easy for us to see what that might include. Maybe a focus on preventing unwanted pregnancies? I don’t think abortion being illegal, or the threat of going to jail for trying to get an abortion, is a particularly good pregnancy prevention tactic. Actually I think it’s a pretty horrible one. Free and accessible birth control would probably be the best place to start, along with providing support to women who want to parent–access to child care, jobs, education and parenting support.

What happens in many of these instances is that the individual who engages in a practice, whether it be seeking an illegal abortion, using drugs or engaging in sex work, bares the burden of the punishment for that behavior. In countries where abortion is illegal, women who come to hospitals with signs of an incomplete or unsafe abortion are investigated and charged. In the US, sex workers are most often faced with criminal punishments, rather than the people who purchase sex work themselves. The result is not that the practice itself goes away, or is even necessarily reduced.

This, to me, is a point of common ground for these debates. Even if you and I don’t agree on the issue of whether sex work is okay, we might agree that the tactics of criminalization actually harm women and sex workers more than they help eradicate or reduce the practice itself. This may allow people who don’t agree on an issue to work together in terms of how to deal with the fact that the practice itself exists.

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