Should prostitution be legal?

This is a repost from last year. It randomly crossed my mind recently, so I thought I would throw it back up here.


If we’ve learned anything from the prohibition of the 20’s, it’s that some vices are best left legal and regulated. It isn’t important if one thinks alcohol is a terrible evil: there’s a demand for it and people are going to have it. In light of this fact, it makes little sense to prohibit its consumption. The obvious link to crime should only make people cringe at the idea of ever applying such draconian laws to it again.

It isn’t easy, however, to draw an exact parallel with prostitution. First (and the most duh point), prostitution doesn’t have a rich history of being legal. The demand for it has always been relatively low-key and shunned while simultaneously being illegal. But there does exist the idea that much of the crime (and, in part, shunning) associated with prostitution is a direct result of its lack of legality. This is an important point because one of the common arguments against prostitution is that it causes a lot of societal ills to those not involved in the ‘profession’*. That is, the argument goes that people who don’t visit prostitutes or know others who visit prostitutes are still harmed by the existence of prostitution.

That much is true. Prostitution does bring crime and violence where it exists. It invites drug abuse, too (illegal begets illegal often enough). But this argument doesn’t work when we’re talking about the legalization of prostitution because no one means the legalization of any of prostitution. The discussion has parameters: what’s important is not merely the legalization of a ‘profession’, but its regulation, complete with protections for the workers. As it stands, prostitution brings violence, crime, and drug abuse where it exists because it is illegal.

In places where prostitution is legal, one problem that often arises is poor regulation. With the best of intentions, governments tie one hand behind their back because they act with little foresight. For instance, the Netherlands has long tolerated prostitution and brothels, but it officially prohibited them for a long time. This gave them a sort of moral high ground (from some perspectives) on paper, but in practice it made it impossible to regulate any activity. In Nevada, the prostitutes are discouraged or prevented from being a part of their community. This is done with the sake of the surrounding town or county in mind, but it forces the prostitute to lose all connection with an area. By example, some brothels do not allow workers to own cars. (Incidentally, the legality of this allowance to brothels places too much power in the hands of the owners.)

But these aren’t problems with prostitution. The issue here is bad regulation. No one is claiming regulation will ever be easy, but it can be made better. Currently there are places which have bad working conditions in a majority of legal locations. But look at pornography. There’s a lot of it out there. And the majority is not horrid abuses, but consensual acts. To be sure, there is plenty of exploitative porn, but the majority is not objectionable on grounds of treatment. (Whether it’s objectionable on grounds of simply being pornography is a separate and distinct matter.) The big reason, of course, why the majority of pornography is acceptable on the level of treatment is due to regulation (at least in most Western nations). Obviously legal pornography has been around a lot longer than legal prostitution, but it is possible to bring the regulation of prostitution to a level far exceeding that of pornography in terms of acceptableness. As one final note on this point, imagine what pornography might look like if it was criminalized.

Why we make it illegal

I’ve found little to no rational basis for why people are against the legalization of prostitution. I think a big part of it all is the “ewwy!” factor. Sex has long made people uncomfortable, especially the religious, so the idea of making it a publicly marketable idea is off-putting, to say the least. When people are given specific conditions for a thought experiment (one of the best philosophical tools there is), they’re usually hard pressed to find an objection. For instance, say Beth is offering to have sex with Hank for money. She’s under no exceptional monetary pressures, she’s of sound mind, she consents, she’s clean (Hank, too), she has alternatives available to her, and she isn’t being taken advantage of by anyone (i.e., a pimp). What is the difference between this service and, say, the service a plumber might provide? Both services use the person as a means and both are being done for money. I think everyone is going to say there’s some sort of difference, but few people can articulate it.

My idea on why no one can quite voice a difference is that people are looking for a rational basis. The answer lies in the “ewwy!” factor and that’s more an emotional argument than a rational one. Sex makes a lot of people uncomfortable, especially when in public circumstances (not in terms of public sex, mind you, but in terms of being acknowledged and available publicly). But more than being an emotional argument, there exists an emotional connection in sex; this seemingly provides an out for those seeking a rational basis. If sex is an emotional event, then the removing of emotion from it is going to be detrimental. But that’s merely the projection of what is, admittedly, a common personal view of many people, not the reflection of what is true for everybody.

I encountered this view in one part of a past discussion I had on the issue. I agree that a lot of people see sex as being deeply attached to emotions and that to treat it as though it were as nonchalant as fixing a (literal) pipe could be harmful to many people. But that argument says nothing of all the people who don’t view sex that way. By way of example, take one-night stands. Plenty of people have regretted them, sure. But let’s look at the pertinent factors: if the one-night stand is with a friend or if the two people otherwise know each other and will see each other, we don’t have a parallel situation. Mentally stable individuals don’t have such connections with random prostitutes. And if STD’s are involved, then we again lack a parallel situation. We’re talking about well regulated environments that virtually eliminate all STD’s, at the very least making the prevalence significantly lower than what it is in the general population.

Given these factors, it’s now safer to look at one-night stands. Have people had one-night stands with people they’ve only recently met/are unlikely to ever see again, with a lack of STD’s, and still regretted what they’ve done? Surely. (Though I’m willing to bet much of the guilt is religiously and culturally, not rationally, driven.) But is it difficult to suppose that more people have been completely happy with their one-night stands? I don’t think so. It isn’t hard to see that nights of consensual, disease-free sex with no or few awkward moments later in life aren’t the types of nights that upset people.

But to make the point clear: applying one’s own association of emotion to sex does not reflect the associations that others have. It may be detrimental for someone to visit a prostitute with the mindset that sex without an emotional connection is bad, but that says nothing of all the people who feel sex is a good thing whenever it is consensual.

At this point, I need to go on what I think is a bit of a bizarre point. When I said to a friend that people object to legalized prostitution because of the “ewwy” factor, I further elaborated that part of that is based in social taboos – an assortment of ideas I think are ridiculous because they tend to be arbitrary; society ought to have moral claims on rational grounds, not on taboos. This is all well and true, but this led him to conclude that I was saying all sex is good and that so long as there is consent, it should be okay. Therefore, if a 13 year old expresses consent to have sex with a 45 year old, that is good.

First, I think this argument was born of a conflation: taboos were being confused with morality. The two concepts are entirely different. Second, I spent far too much time objecting to the idea that a 13 year old can consent. I can agree that it’s possible that some 13 year olds can consent, but that involves far more than merely saying “yes”. It involves understanding, a lack of coercion, and knowledge of consequences. Even if there are some that can consent, most can not. It isn’t practical to go around examining the mental and sexual maturity of every 13 year old so we might allow a few to have sex. Laws unfortunately need absolutes. While we might cringe to hear of a 21 year old being put on a sex offender list for life for having sex with a 17 year, 11 month, 3 week, 6 day old, we do need to set reasonable limits on certain activities. We certainly want to look at any borderline event with a strong eye to the reason for the rule, but something so firmly covered in child sex laws such as the age 13 will virtually always meet the reason for the rule.

Of course, it soon dawned on me that the example of a 13 year old consenting to a 45 year old was premised in the notion that sex with children is objectionable merely because they are children. That isn’t the reason for objection. (Indeed, saying sex with children is bad because they’re children is closer to a taboo than anything resembling a moral reasoning.) While we need the law to guide us, if it was possible to convince me that a 13 year old actually consented to sex with a 45 year old (and remember, that doesn’t merely and immaturely mean saying “yes”), I wouldn’t find any grounds for moral objection. To be clear, I doubt a 13 year old could ever consent to such a thing, but if one could, then where does the objection lie?

A lot more can be said of all this, but I’ll end on a point I think is often overlooked: the well-being of the prostitutes. It was once put to me, do I think prostitutes are happy? That’s a bad question in such a simple form. I doubt most illegal prostitutes are happy. But this is about legal prostitutes. At the time, I couldn’t answer the question because it doesn’t merely require an opinion like “I like ice cream” is an opinion, but it requires an opinion that needs facts. As a matter of, can someone have sex for money and be happy, yes, absolutely. But as a matter of, are current, legal prostitutes actually happy, more is needed. What are the working conditions? How are prostitutes reflected in the law? Are they safe? Is everything consensual? Are the workers free to leave? Given what I know of Nevada’s regulations, the happiness of its prostitutes is in doubt. But that isn’t a result of being a prostitute. It’s a result of the regulations of being a prostitute. If all the concerns can be addressed and the working conditions raised to the level of, say, a cable repair guy’s or an accountant’s conditions, then I see no reason why a prostitute cannot be as happy as any employee of any legal establishment.

*I place “profession” in scare quotes not as a slight, but because I associate a strong definition with the term. To be a professional it takes at least autonomy and esoteric knowledge. There’s much more, but it isn’t important to labor in details here. It’s enough that prostitutes do not meet my definition of what it takes to be a professional. The same, incidentally, goes for most elementary and middle school teachers, as well as many high school teachers. (And again, that isn’t a slight. They perform valuable work. They just aren’t professionals in any more than the popular sense.)

8 Responses

  1. Excellent novel you have written here.

  2. And it didn’t cross your mind randomly either, you fink.

  3. It crossed it randomly, then I brought it up with you and one other person as a result.

    Double fink.

  4. Triple fink.

  5. On a serious note though, I’m not sure its right to say that illegal drug abuse and so on are only associated with prostitution because its illegal. I think in regulated venues it’s simply not allowed, that doesn’t mean those things don’t naturally clump together though. The type of people likely to use “working girls” might be more likely to use drugs and so forth for some reason.

  6. You should look into “euvoluntary” and BATNA’s, and I think you’ll understand a little bit more on why people oppose this issue.

    They think “no one should have to do that to make money. That’s an awful choice to have to make.”

    But their solution is to take the choice away. It leaves the underlying problem intact.

  7. Yay Mike Munger!

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