13 March, 2008

Prostitution, law, and morality

Per our discussion on the morality of public figures, the intertubes have been abuzz with the topic from all manner of perspectives. Michael Barone, a writer for US News & World Report, hits the problem of legal selectivity head on by arguing that prostitution, while "technically" illegal, is in most situations overwhelmingly condoned by law enforcement. It is in situations of such gross selectivity that political considerations can carry increased and improper weight:


When society has effectively legalized something that is still theoretically illegal, there is always the possibility of selective prosecution—targeting individuals who are in disfavor with someone in government. Selective prosecution is tyranny, and the possibility of selective prosecution is a powerful argument for legalization of the behavior that the society has chosen to condone.

This conforms with what seems to be a very broad sentiment in the blogosphere that prostitution should be legalized, although for a variety of reasons. Liberals such as Yglesias cautiously support a move towards liberalization while libertarian types (who seem to be overrepresented on the internet) crow about the paternalistic illogic of criminalization. Over at Slate, some at the "womens' corner" (which I find to be surprisingly sympathetic towards Spitzer) opine that the nature of one's sexual drive, being fundamentally irrational, should not be used to judge a public servant's aptitude for office:

Sex is basically irrational. What people need and want has nothing to do with what they think they should want or need. And how they behave in the bedroom has, for the most part, not all that much with how they would behave elsewhere in the world, if we're going to trust sex surveys.

They question they're asking, then, is should Spitzer have resigned if his behavior had not violated the law? I would say no (especially since David Vitter gets to stay in office...) and I will say that this particular operation did seem to be an orchestrated attempt to destroy a powerful, successful reformist politician on behalf of any number of the many, many enemies that Spitzer took pleasure in making. I would prefer it if high ranking and highly visible politicians that share my political philosophy didn't engage in embarrassing behavior that much of the electorate finds deeply disturbing, but I don't see deviant sexual habits as something per se that renders one unfit for high office.

But, of course, he did break the law -- which brings us back to the question of legalization. I think I favor decriminalization for much the same reasons that I favor legalization of drugs and abortion -- a simple cost-benefit analysis. Outraged articles such as this one in the NYT completely miss the point when they argue that X should be illegal because it is really bad. This goes back to my previous comment on how the purpose of the law is not to impose morality, but to seek a certain optimal social outcome. Laws should be judged by the morality of their effects just as much as by the morality of their intent. And it seems that criminalizing a certain class of bad things (prostitution, drugs, abortion) actually make the problem worse by increasing the danger of the thing (prostitutes without legal recourse, impure cocaine, vicious traffickers, homestyle abortions, jails packed with non-violent offenders) without significantly decreasing its incidence. Add to that the fact that prostitution is tolerated until a political enemy comes along, and criminalization is now chipping away at the fairness of our legal system, much as the power of drug traffickers has completely corrupted those in much of Latin America and elsewhere.

Update: Eremita brings my attention to a very interesting site that serves as a resource, pro and con, on the many aspects of the debate over legalizing prostitution.

4 comments:

Eremita said...

Prostitution is not illegal because society wants to condemn the "sexually deviant" acts of men. It is illegal because it is so harmful to women and children. Most prostitutes in the States begin working in the sex trade before the age of 18 and most international human trafficking involves underage slaves. Places where prostitution is legal, like the Netherlands, do not experience relief in the coercion of women. Even the Dutch government admits that 1/3 of the country's brothels are involved in "organized crime": http://www.prostitutionprocon.org/international.htm#netherlands

If the age of consent is not enough to convince you that the majority of sex workers are not consenting adults, consider the fact that 70 - 80% of prostitutes are raped, assaulted, and abused before and during their work in the sex trade. 75% contemplate or attempt suicide.

Keeping prostitution illegal just isn't about men who are clients. It's about protecting women and children from being coerced into a taxable, state-sanctioned, abusive and dangerous business.

That said, we all know that illegal prostitution can make it harder and more dangerous for prostitutes to seek legal aid. I agree that this is a problem if we regard the goal as protecting women and children. I do not think, however, that the solution is to legalize the industry. The solution is to make the punishments for the crime heavier for clients and pimps/rings. Broadcasting such changes in the punishments, and perhaps including automatic funding for the rehabilitation of prostitutes who come forward with information on clients/pimps/rings, could dramatically change the ability of the government to combat this problem. And hey, we might as well spend a little money helping prostitutes recover, because right now we're spending enough money on the issue: up to 90% of arrests for prostitution are of the prostitutes themselves, with a total of over 81,000 national arrests in 2004 (http://www.prostitutionprocon.org/arrests.htm).

Elliot said...

I never said illegality was only about sexually deviant acts of men. If you read the NYT article I linked to, they are making the exact same argument that you are - that prostitution should be illegal because it is very harmful to the women involved.

Of course it is. The point is that legalization allows for regulation (as well as state-sponsored services such as counseling and health attention, which you argued for) which improves those conditions. As far as I've read, situations of legalization have experienced dramatic improvements in the conditions of sex workers. The Netherlands is a case in point: when some of the brothels break the law, they get caught and they get shut down, like any other business. In the US, however, all the brothels break the law, and hardly any ever get caught or shut down.

And when you bring up things like underage prostitution, lack of consent, abuse, and human trafficking, you are conflating two things, because those are exactly the things that would not be allowed under a legalization regime. I don't see how those can be used as an argument against legalization unless you are making the case that legalization somehow increases them, which is the opposite of what seems to happen. Which is why, despite problems, places like the Netherlands are not getting rid of legalization, they're just adjusting it to work better.

I think we both agree that the status quo is faulty. Your solution is greater enforcement and penalization. That might help, but it might just as likely push the industry deeper underground, force the rings to evolve and become more decentralized and harder to break, and result in more "homegrown" or very small scale industries popping up as the big rings get taken down.

At bottom, the question seems to be: is the problem that women are selling sex, or is it that they are doing so in such a way that is coerced and violent? If the problem is the latter, then legalization and regulation can improve those conditions. However, I think most people operate on the former or at least conflate the two (maybe they should be conflated: is a woman selling sex inseparable from her being coerced?) and so that leads you to an (I think) unrealistic position of trying to stamp out the practice all together. Where there is demand, there will always be supply.

Elliot said...

But (to play devil's advocate to myself) I didn't mention the political aspect: Is legalization going to be adopted by the US anytime in the next century? No. Thus, perhaps Eremita's crackdown approach is the best way forward in the short term, because it is at least consistent.

Eremita said...

I am not accidentally conflating the selling of sex and coercion, and yes, I am saying that legalization would make prostitution more common and, if anything, less safe. We're talking about an industry where the less a woman/child makes for herself and the longer she is convinced/coerced to stay in service, the more the pimp/ring makes. The fact that this is the establishment right now means that legal organizations are going to be less profitable (and taxed) than illegal ones. Illegal organizations and organizations using illegal immigrants as prostitutes will continue to exist and make a profit, and legalizing other kinds of prostitution is not going to make them easier to hunt down (probably harder). So what would regulation accomplish? My opinion is that it would make a few "escort services" legit but, mostly, make a lot of illegal business create some kind of fake cover without actually changing any practices. Meanwhile, prostitutes in illegal or coercive situations are not any more likely to be able to take advantages of any government "help" like health services or legal council.

The reason I find all this important to point out is this. If Spitzer's take-down makes you suspicious that some kind of targeted law-enforcement is going on here, a hypocritical picture appears. It seems that either (a) we should allow anyone, regardless of political standing, to pay prostitutes for sex or (b) we should not (tacitly) allow anyone to do so. (a) amounts to legalizing prostitution or even further relaxation of the client side of punishments for being involved in prostitution. (b) involves ramping up the punishments for clients.

As I pointed out, I do not think that prostitution should be legalized, for the reasons outlined above. I do think doing what we can about the "supply side" in this situation would do some good. Therefore I choose (b). I would not consider this a "crackdown" so much as a shift in the arrests made under the same laws. The point is, the apparent hypocrisy of arresting a politician and not other clients of prostitutes (although there are others in this case) and the hypocrisy of the goals and actual arrest records relating to prostitution laws are related, and they can both be improved with the same tactics.