Legalize Prostitution to Reduce Harms
by Ari Armstrong, April 27, 2005
Prostitution is wrong.
It's wrong to take money for sex, and it's wrong to pay money for sex.
On this point, I agree with the collected wisdom of the Proverbs. Of course, prostitution is not nearly so dangerous as other pursuits of sex that, in our society, remain perfectly legal. For example, Proverbs suggests that adultery is worse than prostitution: "Do not desire her [an evil woman's] beauty in your heart, / and do not let her capture you with her eyelashes; / for a harlot may be hired for a loaf of bread, / but an adulteress stalks a man's very life" (6:25-6, Oxford's Revised Standard).
On what grounds, then, is prostitution outlawed, but more dangerous forms of sex remain legal? Adultery is legal, promiscuous sex is legal, sex with multiple partners is legal, sex with people with transmissible diseases is legal. All of those acts are far more dangerous than a discreet visit to a professional prostitute.
Furthermore, activities unrelated to sex are more dangerous than prostitution. Getting rip-roaring drunk, for instance. Or becoming bulimic. Or becoming obese. Or falling in with religious zealots. All of these things are dangerous -- life-threateningly so -- and thus immoral. Yet they remain legal. Indeed, we would call any society that tried to outlaw those things a police state.
Why is prostitution immoral? Indiscreet sex with anyone is immoral simply because it is dangerous to one's health. But this danger can be (mostly) overcome by checking a potential partner's health and using condoms. (However, please check with your doctor if you're looking for medical advice.) The deeper damage is psychological. Sex for hire isn't very intimate, obviously. Arguably, prostitution makes it less likely that either the prostitution or her (or his) client will form an intimate, romantic bond with somebody else. Sex in the context of a monogamous, long-term, caring relationship is a much different thing, and a much better thing, than casual sex or sex for pay. From the prostitute's perspective, there is something demeaning about selling one's body. Also, the time spent looking for clients and servicing them arguably detracts from a prostitute's ability to acquire more productive skills -- skills that would be useful for a longer period of time. These ethical concerns are not religious in nature -- they are based on the well-being of the individual.
Let me make a few caveats. I do not think ill of a woman in a situation of impoverishment who sells sex. If it's prostitution or starvation, prostitution is clearly the superior option. However, men should not solicit sex from such a woman -- they should instead provide her with some assistance. Obviously, the deeper problem is the political corruption that allows such deep poverty to exist. From the perspective of the clients of prostitutes, I suppose that a gender gap in a society, or generally any situation that makes a romantic relationship unlikely, might make seeking a prostitute seem less bad. I also suppose that people become prostitutes for many reasons, and some of these reasons are better than others. In the scope of things, prostitution isn't as bad as a whole host of things that we recognize as properly legal. I regard the matter mostly as one between prostitutes and their clients. It's up to the parties of the consensual relationship to determine whether that relationship is desirable, and if the behavior harms them, the harm is the result of their choices.
It is clear that most of the harms associated with prostitution in our society are the result of making the practice illegal. In a March 30 editorial, the Denver Post argues: "Prostitution is often referred to as a victimless crime. But it's quite the opposite -- there are many victims, including the neighborhoods where the crimes are taking place, the businesses near where prostitutes hang out, the families of the prostitutes, and the families of the 'johns.' Prostitutes themselves can be the most victimized, beaten, raped and robbed, caught in lifestyles that frequently are blighted by cheap alcohol and illegal drugs, ratty hotels and sexually transmitted diseases."
The crime that has victims is the one perpetrated by the legislature. Though their editorial drips self-righteousness, the writers at the Post in fact endorse the continuation of the very system responsible for the harms they describe.
Why do prostitutes hang out on the streets and in front of businesses? Because working in a brothel is illegal. Why are prostitutes victimized? Because brothels are illegal, prostitutes cannot work in a protected environment. Nor can prostitutes call on the police and courts to protect them, because their activity is illegal. Is there a problem with victimization in strip clubs? Obviously not, because, as everyone knows, big, bad-ass bouncers will immediately throw out anyone who even hints that he or she might mistreat a stripper. Such protection has been effectively outlawed for prostitutes.
In a legalized (or decriminalized) regime, well-run brothels would put shabby street-walkers out of business. They would also free up police resources, so that police could spend their time enforcing property rights and keeping neighborhoods safe. (I have no problem with preventing prostitution in tax-funded areas.) Brothels would help ensure the health of their prostitutes was good and uncompromised. They would prevent violence and ensure payment. The only harm listed by the Post that would not be radically reduced if prostitution were legalized is the harm to "the families of the 'johns'." However, police don't arrest adulterers in order to protect families, and that's simply not an appropriate role for the police.
Prostitution, widely regarded as the world's oldest profession, will not go away simply because we outlaw it. We've tried that, and it hasn't worked, and all it does is increase the harms associated with prostitution, and put the lives of prostitutes at risk. Politicians are indirectly killing people by making prostitution illegal, and all the Post can do is cheer those hypocrites on. By the way, I wrote about this issue in 2001 -- it's not as though the arguments I reviewed then are hidden or unknown.
A central aspect of the debate over prostitution is whether women in a real sense consent to be prostitutes. Clearly, many women do. We can criticize their choices, but we cannot deny that they have made a choice. Obviously this is not the case with slavery. Both the Post and Boulder Weekly have reviewed the international struggle to crack down on sex slavery. Notably, lifting the legal restrictions on consensual prostitution would free up police resources to stop slavery.
There is an argument commonly made by prohibitionists that I here wish to counter. The claim goes something like this: "Those who want to legalize prostitution argue that making it illegal doesn't stop prostitution. But the same can be said for any other crime, such as slavery and theft. Yet we don't argue that we should stop enforcing laws against slavery and theft just because we can't totally eliminate those things. Therefore, we should also keep prostitution illegal in order to try to curb it." But that counter misses at least four important points. First, prohibition against things like prostitution and drug use makes the problem worse, not better. On the other hand, prohibition against violent crimes does reduce harm. Second, prostitution and drug use, unlike slavery and theft, involves consent on the part of all the central parties. Violent crimes automatically, by definition, severely damage some party who has not consented to the situation. Third, consensual acts that are demonstrably harmful -- such as drug abuse and prostitution -- are inherently of limited scope in society. Most people choose not to do those things because of the adverse consequences. Fourth, people have rights to control their own bodies, even in ways that are demonstrably or potentially harmful. The only way to ban every dangerous act is to impose a police state. There is no good reason why the government should arrest people for prostitution or (select) drug use, but not for obesity, bulimia, promiscuous sex, or a host of other activities that can be far more harmful. It is wrong for the government to violate people's rights by arresting them for such activities, and it is morally correct to recognize people's rights.
Of course, in a free society, individuals and civic groups are perfectly free to criticize prostitution, encourage prostitutes to seek other lines of work, and provide assistance to help prostitutes do something else.
The Post notes, "The 'faces of prostitution' photographs used by a Denver County judge to discourage novice prostitutes provide vivid evidence of women caught in a downward spiral of crime, beatings, rape, robbery and more." Using such photos to discourage prostitution is a fine idea. However, the photos have their limits. First, as noted, most of the harms suffered by the prostitutes are caused by the laws that outlaw prostitution. Second, the photographs are selected because they show the worst cases, not the typical cases. Perhaps the Post would care to publish photographs of prostitutes in legal Nevada brothels, by way of comparison, so that its readers could better judge which system is superior.
Legalizing (removing the criminal penalties for) prostitution would move most prostitution into brothels and mostly shut down solicitations on the streets. Of course, some desperate women would continue to walk the streets, even in violation of the law, and some especially unscrupulous men would seek them out. However, if most prostitution were moved to well-maintained brothels, the police could use their resources to take the few remaining prostitutes off the tax-funded streets and go after men who beat prostitutes and steal from them. Also, the really desperate prostitutes would be easier for civic groups to spot and help.
Denver Post columnist Pius Kamau discussed prostitution today (April 27). His main point is that troubled women should be helped, not jailed: "The book [containing photos of prostitutes] should be published, so all can see it and other cities can use it to train cops and to persuade lawmakers, judges and prosecutors that every time we jail these women we're corroborating with their childhood abusers. Most need therapy, to be convinced they're lovable and worthwhile human beings. Let's teach them how to earn a living without selling their bodies."
Though Kamau admits that not all prostitutes are troubled women, he doesn't work out the implications of this. He seems to think men should continue to be arrested for seeking consensual sex for pay. He also offers unhelpful advice concerning non-desperate prostitutes: "Women in Heidi Fleiss' little black book are procured by the rich and powerful; they cater to the upper classes. For them, arrests are rare. We tolerate this deviant behavior because it's high above the streets, in more opulent rooms. It's a criminal double standard that cries for remedy, for justice."
Kamau is correct that the current system is unjust. It is unjust because it outlaws prostitution and creates a dangerous environment especially for poorer prostitutes.
But is Kamau suggesting that people should be arrested for "deviant behavior?" Deviance means different from the normal, not immoral. Lots of deviant practices are perfectly moral and even better than normal ones. So Kamau seems to have in mind deviant behavior that is immoral. However, all kinds of immoral behaviors are legal, as they should be. In a free society, people have a right not to be normal, and in many contexts they have a right not to be moral.
It is right and proper to outlaw violence, theft, slavery, child abuse (including sex with children), and violations of property rights. It is wrong to outlaw consensual prostitution, and doing so only creates more violence and misdirects police resources. If politicians and newspaper writers wish to actually help prostitutes, they must first stop hurting them with counterproductive laws.