OPINION & EDITORIAL
Legal prostitution: Logically sound, ultimately amoral
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Also by Andy Granias:
- Masculinity ideal in need of review (December 6, 2007)
- Legal prostitution: Logically sound, ultimately amoral (December 4, 2007)
- Merry 'Santa-mas' to you (November 29, 2007)
- Discovery highlights moral, scientific boundaries (November 27, 2007)
- Does race matter in sports world? (November 12, 2007)
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by Andy Granias
Tuesday, December 4, 2007
When I first decided to write on the topic of legalizing
prostitution, I thought I would be in favor of it, despite my personal moral
objections. I thought I would address the topic in a similar manner to the
issues of legalizing gay marriage or legalizing polygamy: No matter my personal
moral beliefs, the law should not interfere with an individual's right to
pursue happiness, love or pleasure — as long as that right does not infringe on
another individual's right to the same pursuit.
In the case of legalizing gay marriage and polygamy, this
type of reasoning is a slam-dunk. Anyone who takes issue with a lifestyle that
does not infringe on his or her own civil liberties is either claiming
fallacious necessary consequences of legalizing the action, or is claiming
moral superiority, most often due to religious principle.
Plain and simple, both of these premises are unacceptable
grounds for making any action illegal.
And indeed there is the argument, which appears to follow
sound logic, that says illegal prostitution is yet another example of this type
of infringement, as it is the inhibition of two individuals from pursuing
happiness: the consumer seeking sexual pleasure and the consenting prostitute
seeking financial reciprocation. Under this lens, prostitution is nothing more
than a business transaction, satisfying the consenting desires of both consumer
and supplier.
Likewise, there is the argument, which may appear to be
sound logic, that equates prostitution with legal pornography. Pornography —
although having a far more ambiguous legal definition than prostitution —
essentially achieves the same end under this logic. There is a demand for
sexual pleasure that is met by consenting adults: the pornography participants
and the pornography viewer/consumer. Pornography, as a legal and regulated
business nonetheless, is yet another transaction between consenting adults, as
would be the case if prostitution were legalized.
Yet when we consider legalizing prostitution, we are faced
with an entirely different dilemma that is not always readily recognized.
With polygamy, gay marriage or pornography, the questions of
consent and consequence are virtually nonexistent. Aside from some
fundamentalist polygamous communities, these sexual activities have little consequence
to anyone not directly engaging in them, and those who are engaged do so under
their own accord. Yet under these two premises — consent and consequence — the
logic for legalizing prostitution falls short.
Consent
Truly, in the most literal sense, prostitution is, in fact,
an act of consent between two adults. In all practical terms, however, the way
prostitution almost always plays out is nothing more than glorified rape.
"Consent" is a variable that misleads and misrepresents the
reality of women who are forced or lured into prostitution (I will refer to
prostitutes as women from here on because of the importance of gender power
roles as they are most often manifested in the relationship between prostitute
and consumer, and because 98 percent of prostitutes worldwide are women,
according to the United Nations.)
The term consent, meaning authorizing yourself to do
something or have something done to you, has an inherent implication of
authority in the decision-making process one engages. For most prostitutes,
however, this could not be further from the truth.
The factors that draw women into prostitution — primarily
stemming from poverty, which can lead to other factors such as homelessness or
drug addiction — remove the authority from a woman when she decides to
participate in prostitution.
In many instances, pimps cultivate dependency in women whose
circumstances have dictated a certain environment of desperation. Pimps are
then able to offer immediate gratification to financial problems or to a drug
addiction, and then are able to cultivate that desperation into fear with
physical abuse and the threat of further physical abuse.
According to a 2003 study published in the scientific Journal
of Trauma Practice, 89 percent of
prostitutes said they wanted to "escape" prostitution — not just find a new job
— but agreed to the term "escape" when questioned about their lifestyle.
The reality of prostitution, then, is not one of true
consent.
Many who argue for the legalization of prostitution claim
that if there is a demand for consenting prostitutes and there is a supply of
consenting adults, then illegal prostitution is a clear violation of basic
civil rights. They argue that sure, very few women actually want to be
prostitutes, but very few people want to work for minimum wage either. They
then ask if this means that all poor-quality or poor-paying jobs should be
eliminated entirely.
But there is a remarkable difference between a minimum wage
job and the sexual abuse that nearly always ensues from a pimp-prostitution
relationship; sexual exploitation in an act as personal in nature as
intercourse is a clear example of abuse that certainly does not exist for a
McDonald's cashier.
"Consent" — as pertaining to prostitution — is a word that
distorts the circumstantial factors that exist in nearly every case of existing
prostitution; it is a word that ignores and euphemizes the necessarily dire
circumstance that would warrant such personalized exploitation.
To legalize prostitution would be to advocate a pervasion of
this type of exploitation, all under the false guise of consent.
Consequence
The legalization of prostitution, even if explicitly
consensual can, in fact, lead to nonconsensual prostitution. It is called human
trafficking.
The legalization of prostitution has time and again been
linked to human trafficking — the process of forcing humans, most always women
and children, into another country to be sold into prostitution. Usually, these
individuals are deceived into coming to the country under the false promise of
a "regular" job, usually without money or legal documentation, and are even
more dependent on their pimps than prostitutes who are native to the country.
Human trafficking amounts to modern-day slavery, and is most
often linked to legalized prostitution because of the exponential increase in
explicit demand that ensues when a country, state or municipality legalizes
prostitution.
A greater demand for prostitutes leads to a greater demand
for trafficked humans. If prostitution is legalized it could, potentially,
increase health standards, regulation and wages for prostitutes. But with an
increased demand, there will also be an increase in the demand for cheap,
exploitable, undocumented humans — similar to any other illegal worker but with
consequences of rape and blatant exploitation as necessary results — a
consequence that eclipses any shred of moral permissiveness.
Certainly, human beings have a fundamental right to seek
pleasure — sexual or otherwise. Yet, as a most basic qualification, that right
ceases to exist the moment it crosses the boundary of infringing on another
individual's right to life, liberty and the pursuit of happiness. Prostitution
crosses this boundary with the consequences of exploitation, both through virtual
rape and human trafficking.
Prostitution, along with any other action, should not be
subjected to religious standards, which is the faulty reasoning given by many
social conservatives when defending outlawing gay marriage, polygamy,
pornography and prostitution. But that does not mean that an act should not be
subjected to a moral standard to determine its permissiveness.
Quite simply, prostitution does not meet this moral
standard. The right to prostitution is the right to violation, and while the
sound logical argument for legalization of an act that does not immediately
appear to infringe on others' human rights may be enticing, it is entirely
misleading and irresponsible in this situation.
Pleasure is an end that every individual has a right to pursue. But when a certain method of achieving that end violates the basic human rights of another human being — especially under a false sense of consent — prohibition of that method is a societal obligation.
Andy Granias (agranias@badgerherald.com) is
a junior majoring in political science and legal studies.
Anonymous (December 4, 2007 @ 7:20am):
Most prostitutes are slaves, Andy. Slaves to their drug addictions, slaves to their pimps, and slaves to their lack of hope.
Anonymous (December 4, 2007 @ 10:43am):
Nevada has legalized prostitution. Prostitutes area licensed/registrared and must undergo regular medical examinations every couple of weeks or so. Seems to work fine for those who need to get a little.
Anonymous (December 4, 2007 @ 12:25pm):
Andy just wants some looove...
Anonymous (December 4, 2007 @ 2:35pm):
Just go to the Sunroom
Anonymous (December 4, 2007 @ 5:53pm):
Watch the Bunny Ranch show on HBO.
Those women are NOT slaves!
Anonymous (December 4, 2007 @ 9:48pm):
One argument put forth by proponents of legalizing prostitution is that, once it is legalized, it can also be regulated. So you can require licenses for pimps and prostitutes, provide regular medical checkups for prostitutes, and put in place other regulations to protect the women.
I personally don't think this makes it morally right, but it probably makes it easier to stomach for some, and is certainly interesting to think about.
Anonymous (December 4, 2007 @ 11:33pm):
He is not saying licensed prostitution is completely horrible (legally not morally), but horrible in most cases. 89% want to "escape", meaning that 11% don't, or at least say they don't. It's easy to see that 11% on tv and think it's all good, but they don't portray the majority. the women that were forced into it don't have a tv show to let you see into their pain.
Michael Goodyear (December 9, 2007 @ 5:14pm):
Unfortunately prostitution seems to be a subject that everyone is an instant expert on, usually shaped by the media and moral crusaders. The realities are very different to those of us who deal with these things on a daily basis. Unfortunately public and social policies are usually driven by the former rather than being evidence based.
A distinction is made here between pornography and prostitution, but in fact there is an equally ambiguous element to prostitution - the exchange of sexual services for consideration. Intimacy and relationships are based on exchanges (Zelizer VA. The Purchase of Intimacy. Princetown 2005) though most people might not immediately make that connection, which extends through the idea of a 'kept mistress' down through simple monetary exchange on the street.
When we get to consent here we are immediately faced with the idea of people being forced into or lured into this occupation. Let's deal with that first. Nobody would support the idea of coercion in any trade, be it a clothing sweat shop or sexual exchange. Therefore we must make a clear distinction between that which is forced which is wrong, and that which is not. This is the first concensus.
Consent is correctly described as a continuum, shaped by inequalities and power, but where this article fails is in assuming that most people who sell sex have little choice. The first problem with this statement is that it completely ignores the highly sectored nature of the sex industry, and takes the image of the street market (which is about 10%) as the norm. The second problem is to fail to follow through on the continuum argument or assume that these women all lie at one end. To take away both their voice and agency is to oppress them even further. We all make choices in life, and some of them are not very good choices because the range of options is so limited, as they are for many women.
The immorality lies in the social structures which limit those choices and then marginalise those who make choices contrary to the dominant morality. Even for those women whose choices are primarily economic, they still retain agency. The same arguments could be advanced for any other occupation to which the economically desperate are drawn. The article recognises this but negates it by the false assumption that prostitution exists primarily in an atmosphere of abuse. This enables us to establish a second area of consensus. Exploitation is morally wrong. Prostitution is not inherently about exploitation. Criminalising it marginalises and increases vulnerability and hence exploitation. The target of this argument should be exploitation not prostitution.
Once these false premises are accepted, then the rest of the argument follows naturally. The underlying theme is then further distorted by introducing another conflation - that of the idea of human trafficking. Therefore the third concensus is that forced migration for whatever purpose is wrong. However again the argument is based on false assumptions derived from those who advance policy on moral panic. There is simply no evidence to link human trafficking to prostitution, even those who work against trafficking recognise that (Christina Arnold, Project Hope International, Prevent Human Trafficking).
The arguments advanced here are basically sound but based on false premises and therefore reach incorrect conclusions.
The default in our society is that human actions are legal unless the state passes a law that prohibits it. The basis of criminal law is harm, not just to the individual (the basis of civil remedy) but to the structures of the State, justifying its intervention. The flaw in the title is that all things that are not illegal are moral. To legalise prostitution, that is remove it from the criminal law, is not condoning it (some legislation such as in New Zealand, makes that statement explicitly), merely stating that the criminal law has no place in enforcing the morality of a section of the population. Homosexuality is a good example of that.
The final argument against the role of criminal law is again based on the fundamentals of law that ensure legitimacy for the actions of a state - proven harm, lack of alternate remedy, proportionality of the infringement of liberty, and the analysis of harms and benefits by the proposed intervention. Criminal laws against prostitution fail that test of legitimacy if for no other reason than that they have consistently failed to achieve the stated purpose. Law shapes the nature of prostitution but not its extent (Marcia Neave, Aust NZ J Criminol 1988).
Anonymous (December 10, 2007 @ 10:07am):
As a woman and sex worker, I resent the idea that someone else decides for me what I can and can't do -- based on what they think is good or bad for me. Especially when it comes to a man deciding my sexual choices for me. I'm not some helpless child who doesn't understand the concept of consent. I'm not a victim. I'm not so mentally feeble that I can't figure out what suits me best.
As Michael Goodyear pointed out, street prostitution (where all the studies and statistics come from) makes up about 10% of all prostitution. The other 90% (the vast majority) is very different. It's just not talked about or studied because it's difficult to do and it would blow the other stats out of the water. Then where would your arguments go?
Anonymous (December 12, 2007 @ 4:45am):
There are far more of us than anyone cares to realize. I personally am in contact with hundreds of independent online workers, and know dozens of agency and brothel workers. None of my associates wish to *escape* prostitution. On the contrary- they've made very conscious decisions to do what they do.
In the study cited above, the subjects were interviewed in battered women's shelters, jails, and other places where they were a captive audience. The study was done by Melissa Farley, who consistently engages in suspect research methods. I visited a brothel recently at which she'd done some interviews, and was informed by a couple of the women that she refused to interview anyone who said they were happy with their jobs. Instead she selected only those women who were not happy and included them in her study (if you can call it that)- her self-published book on prostitution in Nevada.
None of us is denying that there are horribly abusive situations of coercion and forced sexual labor (i.e., rape), but we are saying that those situations are hardly exemplary.
Goodyear above gave as an example the garment industry. This is an industry in which abuse abounds in sweatshops worldwide. Everyone agrees that sweatshop slave labor is abhorrent, but nobody is fighting for the elimination of the garment industry! No- they are fighting for the elimination of *exploitation* within that industry.
Another example would be marriage. In Pakistan, a study revealed that 90% of married women are abused by their husbands. In the US, 31% of all women report being abused by a domestic or intimate partner. In Nicaragua, 75% of married women reported abuse by their husbands. But we don't advocate the elimination of marriage- we advocate the elimination of *abuse* within the marriage.
Once we get beyond the moral "ewww" factor prostitution elicits from everyone, we can start having more rational discussions about it- and thus make more rational policies surrounding it.
Anonymous (March 4, 2008 @ 10:23am):
This was a good article, and the comments were also thought-provoking. Thanks for the heads up on Melissa Farley. I'm looking for some statistics on the impact of prostitution, and it's shocking how few studies there are which haven't already reached a conclusion before they begin to collect their data. I can see the agruments for both sides of the issue; what I would like are some actual facts.
In the meantime, I do have some thoughts. If street walking is mostly associated with unwilling women, usually addicted to drugs, etc., perhaps the "Swedish approach" -- arresting johns not hookers -- could be applied just to that level. In other words, if you try to buy a trick from an unregistered woman, you go to jail. Other forms of sex work could continue, decriminalized. This would be similiar to enforcing miniumum wage and safety standards in other industries. The key of arresting the johns would be like penalizing companies who employ illegal immigrants.
Second thought: If you legalize polygamy, you better legalize prostitution also, because once rich men are allowed to monopolize more than their fair share of women, the number of unmarried men seeking prostitutes will go up. This is the situation in countries where polygamy is common.
Anonymous (March 16, 2008 @ 2:52am):
While in principle I agree that "consent" can only occur between persons of equal power, there are not many cases in reality where that exists - try buying electricity where your bargaining power is equal to that of the supplier. Do you think that deregulation has brought competitive alternatives? Then oligopoloy is the word of the day.
Fact is that in capitalism, nearly all "negotiations" are between entities of unequal power. How they got there is not even a matter of discourse, because the reality is if you are in the market, you choose from the existing supply and complaining about the dynamics that lead to unequal power do not change that. This is really a fringe issue... Until exchanges for food, shelter, clothing, and energy all follow the same high-minded principles, I think we should leave the "luxuries", which are really a matter of one group expressing that they do not value the preregoatives of another, alone.
I agree that if we can make a difference, even in small part, than the issues are worth pursuing. But to suggest that the purpose of governance is to do more than address the basic needs of the citizens BEFORE taking care of those basic needs is placing the cart before the horse.
Criminalizing the results, without addressing the causes, is a back-asswards way of talking about this issue. I cannot see an policy reasons to regulate a truly free exchange, while I can see plenty of policy issues that would get to the causes of unequal exchange. Rather than blindly hope that outlawing the effects (prostitution?!) will somehow make your root casuses go away, divorce yourself from that assumption and spend time working on what you believe are the underlying problems. Some women choose this because it is lucrative and rewarding, while some men do because it is affordable and fair.
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