Justifying the Prohibition of Markets in Sexual Services

by Will Wilkinson on March 13, 2008

I liked Ross Douthat’s first post on prostitution. He identifies the real question at issue, which is the truth or falsity of this claim:

[R]enting out your body to satisfy another person’s sexual needs is a form of self-inflicted violence serious enough to merit legal sanction …

The whole case for banning trade in sexual services stands or falls on the defense of this claim and the assumption behind it. Even granting the assumption that paternalistic efforts to protect adults from the consequences of their own choices are justified, which I certainly don’t, the claim that prostitution is, by its nature, a kind of self-harm is pretty clearly false.

Again, it bears emphasizing that absolutely every form of labor involves renting out your body. The language of “selling your body” is generally intended to elicit a “wisdom of repugnance” disgust response, but it just doesn’t when you consider that folks like Ross and me get paid for things we do with our bodies — thinking, typing. Surgeons rent out their brains, and steady hands, to meet people’s health needs. Construction workers rent out their arms, legs, backs, brains. Etc. I sell my body for a living. So do you.

I think the real claim is not about bodies, but about vaginas and penises in particular. These should not be rentable. (Do note, however, that it is legal to rent a uterus and vagina for the purposes of surrogate gestation and childbirth, but no one really enjoys that and a lot of conservatives don’t like it anyway. And there is always porn, which is nothing without genital rental.) But bracket your intuitions about the commercial use of genitalia for a moment and consider that a good volume of trade in sexual services involves renting an expert hand. Could using your hand to give another person an orgasm possibly be a form of self-inflicted violence? Delivering manual relief is a great kindness, a sweet thing to do … unless you do it for money! At this level, Ross’s claim is evidently ludicrous. Sweet charity cannot be transformed into self-inflicted violence by a twenty dollar bill.

Does Ross think that loaning out your body, for free, to satisfy another person’s sexual needs is a form of self-inflicted violence? Should all sex outside of marriage, or outside a serious relationship, be subject to legal sanctions? If not, then using your body to satisfy another person sexually is not the problem. It is renting it. Again, bringing sex inside the cash nexus is thought to work some kind of profound psychological alchemy, which is plain nonsense.

There is a huge amount of question-begging going on in this debate. The degree to which sex work may be reasonably seen as self-inflicted violence is mainly due to the immense legal and social stigma attached to it. An honest inquirer cannot take the humiliation and loss of esteem connected to the status quo legal and social sanctions as evidence of the necessity of those sanctions. That is the purest logical shenanigans.

Moreover, the effects of this paternalism, enacted specifically to protect women from making the “wrong” choices about how they will use their bodies, inevitably bleed into broader cultural attitudes toward women and women’s sexuality. I can’t possible do better than Kerry when she says:

Just as the drug war contributes to the broadly held assumption that young black men are inherently violent and must be restrained, the criminalization of sex work reinforces the idea that sexually active women are damaged and deranged. In both cases, the activities themselves are surrounded by all manner of tragedy, abuse, and violence. In neither case is the liberal humanitarian policy response: Ban it harder, further reinforcing our worst assumptions about entire classes of people.

Get Your Laws Off My Body!

Viewing 7 Comments

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    "the claim that prostitution is, by its nature, a kind of self-harm is pretty clearly false."

    It's also not the same claim as the one you quoted. The "by it's nature" is a significant modifier.

    I'm generally agnostic about this whole thing, but it strikes me that the issue is whether the practice is, on average doing harm; not whether it does harm by it's nature.

    There are also two different situations you might want to think about:

    (1) situations of actual free choice: do people tend to make particularly bad decisions about this sort of thing, such that, on average they're producing more harm than good.

    (2) situations of not actual free choice - sex slavery etc. there are well-meaning types who don't buy (1) at all but still think (2) is enough of a reason to try to do something. But maybe it's not as much of an issue in the US as Europe. I don't know.

    Of course you've then got to deal with the question of whether you can then do anything useful to make the situation better, but I'm not sure you've really framed the question properly here.
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    Though I agree with your conclusions and can't stand the streak of moralistic paternalism in our legal system, I don't think you're being quite fair to Ross's argument when you say that he believes that the inclusion of cash transactions attendant to the sex act alchemically renders it self-abusive. Rather, I think he would argue (actually, as we all would) that some sex acts are good and loving and some cause the participants harm, to draw a simplistic but useful dichotomy. He would then argue not that payment by itself moves a sex act into the latter category, but that those sex acts which involve payment are almost universally in that latter category anyway. Laws against prostitution thus attempt to combat damaging sex acts by proxy - namely, the cash transaction.

    Even with that more reasonable basis, though, I find the argument wanting. I would not grant that a person engaged in the naked commerce of prostitution must necessarily be harming him or herself, and I agree that much of the harm that does occur stems from the fact that society calls the practice harmful. And even if it does harm those involved in it, people must be free to fuck up their own lives just as much as they are free to enrich them.
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    Well, I don't know if he's framing the question wrong. I admit I don't particularly like the framing, because I think it's trying to deliberately play down something we are wired to take very seriously. But that isn't a reason to make the practice of selling sex illegal. The whole debate reminded me of the joke where a guy asks a woman if she'd sleep with him for $10,000 and she says yes. He then offers 50 bucks and she becomes livid and asks "What, do you think I'm some kind of hooker?" He replies "We've already established that, now we're talking price." Once you establish that prostiution isn't "by its nature" inflicting self-harm, you lose the reason why people need to be protected from it for their own good.
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    Why isn't the test here negligence? Which is to say, the issue isn't whether or not the prostitute should be free to choose prostitution but whether the "john/joan" can responsibly choose to solicit the prostitute. Assume, for the moment, that at least some prostitutes prostituting in a "free prostitution" zone, do so out of desperation or some neurosis. This act of prostitution would then be some sort of self harm. So what? That's the prostitutes right! But, what about the soliciter? What if the soliciter suspects that the prostitute is engaging in self harm; isn't the soliciter facilitating the self harm? Shouldn't the soliciter disengage? find another prostitute? Isn't that the responsible thing? The efficient thing?

    On the one hand, the question is just an empirical one. On balance, does prostitution lead to self harm or not? On the other, the real question is whether autonomy is an ontological foundation or a political condition? That is, at what distance do we stand from each other, in fact.

    The lettuce picker (assuming the worst cases) sells the lettuce to the distributor, generally, and not the consumer. Prostitution lacks this distance; labor is converted to consumption, not commodity. There is no intervening state. Except, perhaps, autonomy as intervention. If merely political, however, such distance is fiction and prostitution makes immediate the lie within this fiction. If ontological, then autonomy renders our interest much less as that of another.

    This is all a muddle. And I have no pretense of sense in this.
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    This won't be a completely satisfying comment, but hey, it's a subentry on a blog, what do you expect?

    The cognitive tension about prostitution -- indeed, about a vast spectrum of issues -- is released by starting with the physical definition of Law and working up. Ask yourself, what does Law do? What problem does Law address; what selective advantages did and does Law deliver? Why Law at all?

    Before you accuse me of whatever -- ignorance, tediousness, triteness, pedanthood -- and before your brain starts priming all your rehearsed responses, please understand that yes, I am well-aware that all these questions have been asked and answered by generations of thinkers, and I am intimately familiar with the received wisdoms and their interplay. That said...

    A precise definition of Law, tethered to the concepts of physics (our sturdiest discipline) -- this has never been tried, yes? (In fact, if someone knows of an effort, I would be much obliged if they told me.) Inherent in this definition is the proper role of Law, its objectives, priorities, and constraints.

    Out of this definition comes the proper lexicon with which to discuss issues such as prostitution. Armed with that, the knottiness of this binary dilemma -- to criminalize or not -- unravels, and we come up against the first question of principle: where is the burden of persuasion?

    This latter can only be decided by the affected, by those living under and with the decision. This simple assertion is a necessary consequence of the primary objectives of Law: success (as described by physics) is the measure of Law, and the vicissitudes of those beholden to it directly informs the question of success.

    Humans are the (potentially volatile) constituents of the system, and prudence demands a measure of fealty to their psychologies. If legalizing prostitution, by violating the moral expectations of the people, leads to an anti-Law entrenchment in mind and behavior, then it is not worth it. If, however, the people as a whole agree to place the burden on those who would criminalize it, then I am certain that, just by this subtle cognitive frame-shift in the citizenry, prostitution would no longer be illegal. For instance, the appeal to principle by the legalizers would be preordained; a people who consent to the initial burden-placing are already prepared to respond to the principles of the libertarian. And the inability of the criminalizers to deliver unqualified evidence against prostitution-the-concept (as opposed to prostitution-as-practiced) puts it over the top.

    As a prediction of what my fellow countrymen would decide -- should they, say, prepare the battlespace by voting for the burden shift on a non-binding resolution -- I think it's pretty sound. But hey, what do I know?
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    "...the claim that prostitution is, by its nature, a kind of self-harm is pretty clearly false."

    The evidence contradicts this. Prostitutes suffer an order of a magnitude more physical and emotional damage than any other female occupation.

    "Again, it bears emphasizing that absolutely every form of labor involves renting out your body."

    Exceedingly specious argumentation. These jobs do not have the same measured emotional and physical consequences.


    "I think the real claim is not about bodies, but about vaginas and penises in particular."


    This is largely the reason that some oppose prostitution (e.g. Catholics), and not the reason others oppose it (e.g. feminists).


    "The degree to which sex work may be reasonably seen as self-inflicted violence is mainly due to the immense legal and social stigma attached to it."


    The evidence does not support this. It is uniquely degrading, unpleasant work. Some are biologically built for it, most are not.


    "Moreover, the effects of this paternalism, enacted specifically to protect women from making the “wrong” choices about how they will use their bodies, inevitably bleed into broader cultural attitudes toward women and women’s sexuality."


    You sure must be a better feminist than most feminists who disagree with that assessment. Of course, in Libertarian Land people can't possibly make bad choices for themselves because of unjust conditions that contextualize those "choices". Except, they do all the time.

    Those who have ruined their short lives as prostitutes would obviously have been better off flipping burgers than sacrificing their bodies to lowlifes, but their low future orientations make them choose the easier, quicker work in the beginning. Then they have to take drugs to numb the, gradual but certain, emotional damage of the work. Then they really can't escape to the burger job, because they aren't sober enough to interview and work a normal job. And it won't pay enough money and at the right time to support the habit anyway. A suite of unchosen sociological (some 70% of prostitutes were sexually abused as children) and genetic traits resulted in an unfortunate, short, and painful life. There is nothing just about that, even if cloaked in the lotus-eating rhetoric of "free-will".

    Really no one has free will, and, yes, as the libertarians believe, the government can't fix our problems with regulations. The real cause of social problems is that people themselves are broken and imperfect. They have personality and ability traits that are not optimized to make them happy, or their society.

    A eugenic friendly society would try and engineer births so that only intelligent, self disciplined people with high future orientations are born.

    That is the real solution to prostitution: prostitutes should never be born in the first place.
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    Ross probably watches re-runs of Footloose and roots for John Lithgow's character to win.
 

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