Prostitution: Reply to Shane Fookes

While Shane Fookes at least offers an argument in favor of the prohibition of prostitution (unlike my last critic), that argument is weak. Moreover, Fookes fails to respond to my arguments in favor of legal prostitution, and he misrepresents some of my views.

Fookes argues that, in addition to protecting people's rights, government must "restrain evil." The problem is that Fookes never explains which evils the government ought to restrain, or why. Nor does he consider that, to forcibly "restrain evil" beyond the violation of rights, government must itself violate rights.

The evils that I think government should restrain are the evils of initiating force and fraud; that is, the evils of violating people's rights. Fookes thinks that the government should prohibit vices ("evils") that do not violate rights. He never says whether he believes that the government should ban all such vices, or just some of them, or how to decide.

Following are some vices that are currently legal (taken from my Speakout and additional commentary):

* Drinking too much alcohol.
* Smoking (in one's home and outside).
* Overeating.
* Engaging in indiscriminate sex among consenting adults.
* Cheating on one's spouse.
* Indirectly exchanging expensive dinners and trips for sex.
* Not working when one's children need the income.

If Fookes believes that the government must "restrain evil," then does he believe that the government should impose criminal penalties for each of the vices listed above? Many of the vices listed above can be at least as harmful as engaging in prostitution; for example, failing to support one's children can severely harm those children yet fall short of criminal abuse. Does Fookes believe that the police should arrest, and the courts should imprison, people for all of the vices listed above? If not, then why does Fookes believe that only some vices (such as prostitution) should carry criminal penalties? Until and unless Fookes can provide a plausible answer to this question, he has not made his case.

Fookes is wrong to conclude that the government should "restrain evil" beyond the violation of rights. The first problem is that even restraining actual vices tends to foster abusive government that invades our privacy and causes unintended social harms. (For example, the legal prohibition of prostitution results in more disease and more violence against prostitutes.) The second problem is that, while rights violations can be clearly defined, "evil" is the subject of vast disagreement. Many Americans believe that blasphemy, atheism, pornography, and homosexuality are evil. Other Americans believe that eating meat, wearing leather, and building large houses are evil. Does Fookes believe that all of those things should also be banned? If not, then how does he propose to distinguish actual evils from pretend ones? Who gets to make those decisions? Once the machinery of "restraining evil" is in place, what's to stop it from falling into the wrong hands? After all, Islamic totalitarians act to "restrain evil" by their understanding.

Fookes claims, "Based on [Armstrong's] logic, all drug use should be legalized, and all forms of indecency laws, traffic safety laws, etc., should be eliminated."

I have indeed argued that drug use, by consenting adults when the operation of heavy machinery or similar circumstances are not involved, should be legal. I have written many thousands of words arguing my case, and if Fookes can't be bothered to consider my case, I don't see why I should recapitulate it here.

I don't know what Fookes means by "indecency laws." Does he mean laws requiring clothes? If so, then I would point out that nudity is legal on private property and properly illegal on tax-funded property. The problem with banning all alleged "indecency" is that, first, not every indecent act violates rights, and, second, "indecency" is ambiguous and subjective.

Fookes is wrong that my position entails the elimination of traffic safety laws. So long as roads are tax-funded (and I don't concede that they should be), the government must set the policies for using those roads. However, I would note, if you build your own road, you may properly establish the policies for using that road.

So Fookes has not established that the government should "restrain evil" beyond the violation of rights. Nor has he explained how any reasonable limits can be established once government gets into the business of forcibly "restraining evil" beyond the context of rights, whether the evil is real or based on some dogma.

Support in Prostitution Debate

I had little interest in debating the legality of prostitution, but then a well-known governor was brought down largely because of the issue, and I had an opportunity to discuss the case in a public forum. Since last I wrote about the debate, several people have added some good comments in my defense. The quotes below are taken from the comments section following a letter that criticized me.

In her critical letter, Susan Williams wrote, "If Speakout writer Ari Armstrong thinks he is purchasing his wife's favors when he pays for groceries or dinner out, I'll bet my hat that is an opinion he has not yet shared with his wife." Brian Schwartz sensibly pointed out that Williams's statement is "a blatant personal attack on Mr. Armstrong's character."

Lin adds:

Susan Williams completely missed the point of Ari Armstrong's Speakout. He stated that prostitution is a vice, is degrading and should be morally condemned. On this they agree.

Instead of responding to his reasons for advocating that prostitution should be illegal, she viciously attacked him, making an ad hominen argument, and claimed that no one wants their daughters to be prostitutes. No similar statement about the sons.

The question remains: Why should a moral vice like prostitution be illegal when infidelity, indiscriminate sex, lying to achieve a personal advantage, and other vices are not illegal? To this question Ms. Williams has no answer except she doesn't like it. That's no answer.

She should re-read the Speakout, apologize to Mr. Armstrong for her attack, and give reasons if she has them. If not, she should keep quiet.

N. Provenso chimes in:

Susan Williams' letter is grossly unfair and personally insulting to Ari Armstrong. Armstrong clearly articulated the reasons why prostitution is vice but ought to be legal; in reply, Williams' shows she didn't even consider Armstrong's argument and instead chose to lob an inappropriate personal attack and straw man his position.

Should everything that is a vice but does not violate the rights of others be made illegal? Too much fast food? Smoking? Excessive alcohol consumption? Responding to an op-ed you haven't read?

Paul Hsieh writes, in part, "[O]one of the best virtues of America is the fact that we are able to distinguish between immoral acts that should *not* be illegal (such as prostitution) and immoral acts that *should* be illegal (such as rape or theft). The first does not involve any initiation of force or fraud, whereas the second does. And that makes all the difference."

Diana Hsieh adds, "Ms. Williams' letter exemplifies so much of what is wrong with political discourse in America today. It's bad enough that she grossly misrepresents Ari Armstrong's views by claiming that he endorses prostitution, but the personal attack on him (and his wife) should have qualified this letter for the circular file."

I appreciate this support.

To date, I have seen no reply to my original article that attempts to rebut my arguments.

There are a couple of points still worth pursuing. First, I offered only a hint of why prostitution is a vice; much more can be said on that matter. (I was not surprised that some libertarian critics took issue with my claim that prostitution is a vice.) Second, I didn't make clear in my original article what the laws should be regarding the trade of prostitution on "public" property. The ultimate answer is that the property should not be public. But, so long as it is, I think the law may properly prevent people from offering and soliciting prostitution there, for the same reasons that people cannot sell alcohol or guns on the street corners. But the main issue is whether prostitution should be legal among consenting adults on private property.

Prostitution: Reply to Susan Williams

Susan Williams should have read my March 15 Speakout ("Should prostitution be legal?") prior to criticizing it in her March 20 letter ("Degradation is why prostitution illegal"). Rather than consider my arguments and respond to them, Williams insulted both me and my wife by wondering "if... Ari Armstrong thinks he is purchasing his wife's favors when he pays for groceries or dinner out." Williams's insinuation about our marriage is vicious and dishonest.

In the Speakout, I argued that prostitution is a moral vice, along with infidelity and indiscriminate sex. Furthermore, I wrote, "[S]ex properly involves a connection of consciousness as well as bodies between two people who genuinely admire one another. Purely physical sex undermines the distinctly human dimension of it..." Williams ignored all of this.

Williams instead misrepresented my observation that paying indirectly for sex via expensive dinners or trips is legal, while paying directly for sex is a crime. I made this point in the context of discussing various other vices, such as infidelity, that are legal. My point was that, while we should condemn and discourage vices involving consensual behavior, we ought not criminalize them. For example, while Eliot Spitzer fully deserved the public censure he got, neither he nor the prostitutes he hired deserve to go to prison.

Williams wrote, "The reason we don't legalize prostitution in the United States is that it is wrong and degrading to buy and sell women..." I quite agree that it is wrong and degrading to hire prostitutes, and I argued as much in my Speakout. However, prostitution is not akin to slavery, as Williams suggests. Prostitutes, along with those who hire them, agree to the arrangement. (I noted in the Speakout that "involuntary prostitution and sexual abuse of children must be outlawed.")

Williams asked how I would react if my (hypothetical) daughter decided to take up prostitution. I would react the same way I would if she decided to take up indiscriminate sex, infidelity, or any other serious vice. If she were a minor (for whom prostitution would properly remain illegal), I would prevent it. If she were an adult, I would passionately plead with her to make wiser choices.

I've answered Williams's question; now it is only fair that she answer mine. Does Williams think that people should be sent to prison for infidelity or indiscriminate sex? If not, doesn't she still grant that those things are "wrong and degrading?" How can she justify criminalizing some vices but not others? Finally, assuming that there are any vices that Williams thinks should remain legal, would she appreciate it if I insinuated that she therefore participates in those vices?

* * *

I have asked that the Rocky Mountain News publish the first three paragraphs of the reply above.

While the point is a minor one, I did find it humorous that Williams assumed that I'm the one buying groceries and dinner out. My wife makes way more money than I do.

My previous notes on the matter are also available.

Finally, I do agree with Williams's statement, "Men who think that all exchanges between them and women are negotiations for the price of sex are doomed to loneliness in the midst of company," though there is a sense in which the "price of sex" is properly one's character. And Williams's paragraph about Spitzer makes a good point.

Prostitution Article Now Online

My article in the Rocky Mountain News arguing that prostitution should be legal is now available online. I've also written some additional notes about the subject. Also, in 2001 (during my libertarian days), I reviewed a debate on the matter featuring Wendy McElroy.

Legal Prostitution: Article in Rocky Mountain News

Subscribers to the Rocky Mountain News may notice an article of mine today on page 26 (in the second news section). It's titled, "Should prostitution be legal?" Unfortunately, the News has not made the text of the article available on its web page at this point (a matter that I'll try to resolve).

[March 17 Update: The article is now available online.]

After discussing some non-vices that are sometimes banned and some vices that are not banned, I describe prostitution as a vice that should not be banned. Here is my central claim: "The proper purpose of government is to protect people's rights, not prevent vice beyond that context." I add that prostitution (between consenting adults) should not be banned because it does not violate anyone's rights.

Notice that I do not use the phrase, "victimless crime." Opponents of legal prostitution (and legal drugs) argue that the activity harms third parties. However, that's not the relevant distinction when defining legitimate crimes. Instead, the relevant factor is whether someone initiated physical force (or fraud). Without that element, no action should be considered a crime. Take the following example. A father who doesn't work, but who lays around on the couch all day watching television while his wife works a low-income job, thereby harms his children. But should laziness be banned? Clearly not. Obviously, Eliot Spitzer harmed his family by hiring prostitutes. But he did not initiate physical force. Single people have no family to harm, though arguably they still harm third parties, but again no initiation of force is involved.

The final two-thirds of the article considers four objections to legal prostitution (see the text).

Here I want to add several qualifications based on the comments of various readers. (The article has fewer than 650 words, so it is highly essentialized.)

Thanks to the advice (and reference) of Brian Schwartz, I did not use the phrase "legalized prostitution" in an effort to try to avoid the sort of definitional issues that Wendy McElroy addresses:

Legalization (or regulation): government has registered prostitutes with the police and subjected them to rules meant to protect health and public decency. Legalization refers to some form of state controlled prostitution. It often includes mandatory medical exams, special taxes, licensing, or the creation of red light districts. It always includes a government record of who is a prostitute, information which is commonly used for other government purposes. For example, some countries in Europe indicate whether a person is a prostitute on his or her passport. This restricts that person's ability to travel since many countries will automatically refuse entry on that basis. Controlling legalized prostitution usually falls to the police. ...

Decriminalization (or tolerance): all laws against prostitution have been abolished. It refers to the removal of all laws against prostitution, including laws against pimping. Almost all prostitutes' rights groups in North America call for the decriminalization of consensual adult sex on the grounds that laws against such sex violate civil liberties, such as the freedom of association.

The individualist feminist approach to prostitution is to advocate decriminalization: that is, the abolition of all laws against selling sex.

My goal with the article was to argue for legal prostitution, without getting into the debate that McElroy reviews.

However, I may need to clarify the following sentence in my article: "On a legal market, both prostitutes and their solicitors would be screened and monitored much more carefully..." What I had in mind is that both houses of prostitution and independent prostitutes would have the ability to screen clients more carefully, and houses of prostitution and and other parties would have a greater incentive and ability to screen and monitor prostitutes. Of course knowingly putting someone at risk of a sexually-transmitted disease (without disclosure) should be illegal across the board, for prostitutes and everyone else.

In discussing the legality of prostitution in the article, I mean to address only criminal law. Obviously any sort of infidelity violates the typical marital contract, but contract is a matter of civil law.

Hopefully the entire text of the article will become available for online readers soon.

[March 17 Update: The article is now available online.]