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Prostitution is defined to be sex in exchange of consideration

http://definitions.uslegal.com/p/prostitution/

The term "prostitution" generally means the commission by a person of any natural or unnatural sexual act, deviate sexual intercourse, or sexual contact for monetary consideration or other thing of value.

The problem is what sort of consideration count as prostitution?

Imagine a girl saying that I only want to have sex if we're married. That is a consideration. It has value. Is she a prostitute? Most of us wouldn't think so.

Imagine a girl saying, I only want to have sex if I get bitcoins. She's not getting paid. She's getting something else. Is she a prostitute?

So what's the limit?

What counts as consideration?

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  • You do know what consideration is, right? Your examples aren't consideration.
    – jimsug
    Feb 1, 2016 at 8:19
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    I don't think you're going to get a satisfying answer here. The real answer is that, yes, marriage is consideration and exchanging sex for marriage is prostitution, according to the definition provided. However, custom and tradition have carved out certain exceptions which society tolerates because society prefers it that way. Law - especially common law - isn't a formal mathematical proof where you can point at a line that's out of place and invalidate the whole thing. It's more like a high school English essay, with lots of notes scrawled in the margins. With coffee stains.
    – Patrick87
    Feb 1, 2016 at 17:09
  • @jimsug - Bitcoin, a wedding, and a marriage contract all sound like "consideration" to me. Can you explain your comment?
    – feetwet ♦
    Feb 1, 2016 at 17:24
  • @feetwet (maybe I'm wrong) but consideration takes the form of a committment to do or not do something. Saying "I will only want to have sex if we're married" (note that marriage is not the same as a wedding) doesn't sound like an obligation. Maybe "I will have sex with you if we marry each other" could be. But wanting to do something, afaik, is not consideration as it applies to contracts. A court can't force someone to want to do something, only to do it, and only if they've committed to doing so.
    – jimsug
    Feb 2, 2016 at 23:51
  • @jimsug - A traditional wedding alone can be a huge commitment of time and money, often demanded by one partner, and granted by the other for ... consideration. The enforcement of the marriage contract has varied over time, but AFAIK it has always involved a commitment to do certain things and not do other things. When the contract is liquidated by a divorce court usually some financial consideration is exacted from one of the parties. As for the "physical" consideration, even if they aren't now, weren't "conjugal rights" a traditional part of the contract?
    – feetwet ♦
    Feb 3, 2016 at 1:22

2 Answers 2

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It depends on the jurisdiction and particular facts. The long history of not counting marriage as prostitution under law because of its social and religious legitimacy makes the transaction-related aspects of marriage fall outside the definition of prostitution in most cases that are not the explicit sale of a person for consideration, which is obviously forbidden as slavery today and could probably also be charged as prostitution in most jurisdictions.

In your particular example, the girl is also saying what things will influence how she feels, and no reasonable person would say that she gives up her ability to withhold consent after marriage based on any alleged contract. A contract to lose the ability to withhold consent would also be void as against public policy, regardless of whether prostitution is involved.

Bitcoin is a form of virtual currency. It is regulated by money transmitter law and trading it to obtain goods or services that cannot legally be traded for is still illegal.

It's not that there is a defined "limit." It's that some things will fit into the definition and others won't. It's about categories, not quantities.

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  • I see. So the limit is not fixed. I give dollar and get sex. Bam. I give bitcoin and get sex. Bam. I give chocolate and get sex. Okay. I give financial support and get sex. Okay. Of course, while there is no explicit contract that I keep supporting as long as the sex keeps coming, we all know that I can find another partner if it stops.
    – user4951
    Feb 1, 2016 at 12:01
  • There is no legally enforceable contract, implicit or explicit. If you make an explicit agreement to trade consideration for sex, the contract is void and technically it is prostitution/solicitation. Whether you find another partner or not--that is irrelevant to prostitution, although can be relevant to things like divorce in states that still have fault-based divorce laws.
    – Tom
    Feb 1, 2016 at 17:40
  • so contract can't be explicit. The thing is the one sure way to get anything in this world, except by altruism is by having explicit "deals". And that is precisely what's prohibited
    – user4951
    Feb 2, 2016 at 0:31
  • There is no contract for prostitution, explicit or implicit--the contract is void from the get-go. "void ab initio." This contract is not implicit or explicit. It doesn't exist legally, at least not for purposes of trying to enforce it.
    – Tom
    Feb 2, 2016 at 1:14
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    Walmart: That's not a contract. It's a consequence.
    – Tom
    Feb 2, 2016 at 1:50
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It rather begs the question of why it matters.

You are assuming that prostitution is illegal and therefore whether a transaction is or is not prostitution would be germane to this. However, in very many parts of the world prostitution is perfectly legal and may even be government regulated. See https://en.wikipedia.org/wiki/Prostitution_law

Legality of Prostitution

Orange is illegal, green is legal, yellow is legal and government regulated

Notwithstanding, whether legal, regulated or illegal, the definition of what prostitution is will be detailed in the law of the particular jurisdiction.

In jurisdictions where prostitution is legal, contracts for prostitution would be legally binding and while a prostitute (or the customer) could always withdraw consent because of sexual assault crimes that would be a breach of contract and would leave the party in breach subject to a damages claim.

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  • This is also a good answer. The trick is that even when prostitution is legal it's treated worse than marriage. Prostitutes are taxed. While money given to spouses is not.
    – user4951
    Feb 3, 2016 at 4:30
  • @jimThio That's not quite correct, what I give a prostitute is payment for services, what I give my spouse is a gift.
    – Dale M ♦
    Feb 3, 2016 at 4:51
  • so gift is not taxed but payment is. Sounds like a loophole. Fuck me and I'll give you $100 as a gift.
    – user4951
    Feb 3, 2016 at 5:14
  • Calling it a gift doesn't make it a gift
    – Dale M ♦
    Feb 3, 2016 at 5:21
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    @JimThio marriage doesn't necessarily involve sex. Sexual activity doesn't necessarily involve consideration or conditions. Some marriages may resemble prostitution. Others do not.
    – phoog
    Apr 29, 2016 at 16:44

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