Prostitution, Society, And The Law

Megan McArdle has an interesting piece explaining why she isn’t a prostitute, despite being for the decriminalization of prostitution. She argues that there is a social stigma against being a prostitute, but that social stigma isn’t enough to justify criminalization:

So I need a better reason than “it’s icky” or “there’s something wrong with a woman who would do that” to justify either a moral or a cultural ban on the practice. I’m probably more open than Will or Kerry to being convinced, but I’d take some pretty strong convincing that prostitution is so inherently damaging to society that we should declare war on it. I start with the principles that sex has equal moral significance when performed by a man or a woman; that it isn’t anyone’s business how many or what kind of partners you choose; and that government intrusion on private, voluntary exchange should be sharply limited to a) practices which produce demonstrable harm to third parties, and b) you can reasonably expect to control. This quickly leads me to “don’t you have something better to do than poke your nose into someone else’s hotel room?”

From a libertarian perspective, sex is just another voluntary human exchange that the government has no business regulating. The reason why I’m not a libertarian is because things like sex are more than just voluntary human interchanges. Humans are social creatures. Sex is, or at least should be, a deeply personal relationship between two people. A culture of casual sex and legal prostitution “diminishes the currency,” so to speak. When sex becomes something as prosaic as getting an oil change, it loses that personal value.

The other problem is that prostitution—even legal prostitution is innately exploitative. Even in a place like Amsterdam where prostitution is legal and there’s much less of a social stigma, there are plenty of women who are the victims of human trafficking and sexual slavery. The proponents of legalized prostitution argue that there’s only a minority of women who are treated that way. Perhaps so, but even that small minority deserves protection. Even in an environment where prostitution is very well regulated, you cannot prevent the exploitation of women. Even if there are success stories of prostitutes who end up leaving the business successfully, that doesn’t justify the perhaps millions of women across the globe who are systematically brutalized by the “sex industry.”

Society also has an interest in the family. We look down on things like prostitution, adultery, and pornography because they’re not good for the family. In order for a society to continue, it needs to keep its population growth at a sustainable rate. In order for that society to function, it not only needs people, but it needs people who can function well with other members of society. We don’t like married men visiting prostitutes because it’s deeply harmful to their wives, their children, and their families. The family relationship is the mortar that holds society together. Every other institution in society can fall apart: the government, religion, commerce, but if the family remains intact society can grow again. Without the family, there is no society. Anything that harms the family should rightly be looked at with close scrutiny because the value of family is so critically important to every other larger unit in society.

There’s also something that bothers me about a feminism that equates sex with “empowerment.” Does anyone really think that Ms. Dupré, a naïve 22-year-old woman who never finished high school and was living well beyond her means, was really “empowered” by having sex with people like the former Gov. Spitzer? Feminism rightly criticizes a culture that treats women as sex objects and values them only from the neck down. Yet at the same time, it’s hard to say that treating women as sex objects is a bad thing even if those women ostensibly consent to it. If every woman wanted to be a prostitute, would that be good for women? Even if a significant minority of women wanted to be prostitutes, would that be good for women? The feminist argument for prostitution doesn’t seem to hold much water to me.

The libertarian critique fails on its own terms. You cannot say on one side that the government should not interfere with what consenting adults do without explicitly giving the government the power to determine whether or not there really is consent—at that point, the government is poking its nose into someone’s hotel room, just perhaps not as far as if prostitution were banned outright. A self-regulating “sex industry” just isn’t a good idea, and if the “sex industry” can’t be self-regulating then even libertarians have to give the government some ground to regulate. At that point, it’s no longer a question of whether government has a role, but a question of what that role should be.

There will always be prostitution—there’s just too many incentives for women to sell themselves and far too many men willing to do the buying. Even so, that doesn’t mean that society should recognize prostitution. There is a social stigma against prostitution not because people are overly judgmental, but because that stigma is in many ways deserved.

Spitzer’s Very Hot Water

Andrew McCarthy, a former federal prosecutor, takes a look at some of the possible criminal charges that could result from Gov. Eliot Spitzer (D-NY)’s prostitution scandal. Spitzer, who’s been one of the most crusading state AGs in recent years, is in some very hot water. He’s likely to face several federal racketeering charges, violations of the Mann Act and potentially money laundering charges as well.

Gov. Spitzer was known for being unwilling to compromise with the white-collar defendants he prosecuted in New York. He shouldn’t get any disparate treatment because of his position.