First Principles

Kerry Howley has a brief, provocative piece inspired by Elliot Spitzer that basically makes the case for legalized prostitution from first principles:

Of course sexism restricts autonomy in all sorts of ways that deserve consideration when discussing the prevalence of prostitution or the choice to enter sex work. Of course it’s deplorable that sexually adventurous young women are constantly told they are “degrading themselves” by seeking out various experiences, that every bit of enjoyment eats away at some secret store of purity. This whole tradition–the idea that women need be preserved in glass so as not to “ruin” themselves, lest they diminish their sexual value by “giving it away”–restricts the lived autonomy of women in ways I can’t even begin to articulate. None of the slut-shaming makes sense unless you assume women live to give themselves to men in their purest possible form.

If you find all of these cultural pathologies unfortunate, what is the public policy you should prefer? It seems to me that it is not the policy that deems it a crime against the American people to open your legs. Anti-prostitution laws add a layer of legal sanction to all of our worst intuitions about the treatment of sexually independent women; they strengthen and validate the idea that women who bed men with any frequency are sick, marginal, pariahs. Even decriminalization, which treats Johns as outlaws and sex workers as victims, assumes that all sex workers are damaged, that no woman would ever love sex enough to make a career out of it. And why not? Well, because every woman knows that she is her sexual purity rating. No sane woman would ever choose to mess that up.

I find the pristine logic of these sentiments to be more than a little challenged by every account I've heard of prostitution-in-practice under a variety of legal regimes. Still, I do think it's a fairly powerful challenge. It's hard to think of many other widely engaged in activities where the activity itself (sex) is legal, but charging money for it is illegal. Certainly the principle "a woman may have sex with whomever she wants for any reason she wants, unless that reason is explicit financial compensation" doesn't seem to have a ton of logic behind it. But in many ways, this seems to me like a "so much the worse for logic" kind of situation, where I'd like to see us move toward liberalization but think we should do so pretty cautiously (gestures in the direction of Burke, tradition, etc.).

Comments

One can donate organs, but not sell them.

Posted by politicalfootball | March 12, 2008 2:28 PM

It's hard to think of many other widely engaged in activities where the activity itself (sex) is legal, but charging money for it is illegal.

What about bribes? It's okay for a legislator to something for a constituent, but not to take money for it.

Posted by Mark | March 12, 2008 2:29 PM

The only other activities that are widely engaged in and illegal to do for money that jump to my mind have to do with the human body. Can't sell organs (but you can give them away) Can't sell babies, (but you can let them be adopted). Can't sell your corpse for scientific investigation - but you can donate it.

Now some birth mothers and organ donors are compensated for their expenses, and you might be able to structure prostitution so that you were not paying for the sex?

Posted by Captured Shadow | March 12, 2008 2:31 PM

And curiously, if both parties are paid and the sex is filmed or photographed, that's perfectly legal... (and that's not even getting into the disparity of pay between sexes in the porn industry)

Posted by Steve | March 12, 2008 2:32 PM

Oops, that should be:
"It's okay for a legislator to do something for a constituent..."

Posted by Mark | March 12, 2008 2:32 PM

Can you elaborate on the ways in which "these sentiments to be more than a little challenged"? I'm not clear on what you mean, and I suspect you have an interesting point.

I'll add that the fact that paying for sex seems much more culturally acceptable than being paid for sex is a pretty interesting and odd dynamic, and I wouldn't be surprised if it comes from mysogenistic beliefs. Women are expected to be chaste while men are expected to be promiscuous, and men are supposedly driven by sexual "needs." So men who buy sex are following to their "manly" nature, whereas women who sell sex are breaking the rules of female behavior. This whole dynamic is absurd and unhealthy.

Posted by Galen | March 12, 2008 2:37 PM

There's no real logical reason to restrict the selling of organs either, except for a vague but enormously persistent notion that "it's just not right."

Posted by right | March 12, 2008 2:38 PM

I can't believe so many people have come out in favor of legalized prostitution under the mantle of liberty. Prostitution is one of the single most victimizing industries - if women aren't being raped, they're being coerced into dangerous unwanted sex, physically abused by guys who "like it rough," and put at high risk of being murdered. Legalizing prostitution wouldn't be some grand victory for autonomy. It seems more than anything that otherwise sensible liberals are so enamored with the idea that people should be able to do anything they want behind closed doors that they are willing to commit themselves to all its extreme permutations.

Posted by Aaron | March 12, 2008 2:39 PM

What percentage of prostitutes do you suppose are "sexually adventurous," as opposed to being drug addicts, down on their luck, sex slaves, etc.?

Posted by blah | March 12, 2008 2:40 PM

Steve has found the loophole
Don't pay for a prostitute. Pay for someone to act in a Porn Movie rehearsal.

Posted by Captured Shadow | March 12, 2008 2:41 PM

Burke, tradition! Is this a closet conservative we have here? A natural receptor for Obama's transgressive message.

Of course you are right--why not run a pilot scheme and see what happens.

I think you are right that Kerry Howley's railing against the double standard is sensible she seems to have some very odd ideas about the glamour of sex work.

I am astonished that prostitution is criminalised in New York. But then there is no accounting for those degenerate Europeans.

Posted by Chris Dornan | March 12, 2008 2:46 PM

But in many ways, this seems to me like a "so much the worse for logic" kind of situation, where I'd like to see us move toward liberalization but think we should do so pretty cautiously (gestures in the direction of Burke, tradition, etc.).

Abstract Libertarian logic tempered by careful, Burkean hesitation. Sounds like a fantastic synthesis to me.

Posted by Shinyk | March 12, 2008 2:46 PM

I’m generally pretty libertarian but I think that prostitution is one area where we’d be better off sticking with criminalization. Thinking about the rampant abuse in the as-is prostitution business I got to wondering why these abuses are so endemic. One possible reason is that there is just a fundamental supply-demand imbalance between the number of women who are able and willing to sell sexual services and the number of men who demand these services.

If there is a persistent shortage of willing women, then there will always be a tension between supply and demand that will almost certainly manifest itself in forced prostitution, slavery, child prostitution etc. Legalizing prostitution wouldn’t change any of that. You’d only be able to change the dynamic by changing cultural norms in a way that reduced men’s demand for anonymous sex while increasing women’s – this doesn’t seem very likely.

Posted by BFR | March 12, 2008 2:47 PM

Can't sell organs (but you can give them away) Can't sell babies, (but you can let them be adopted). Can't sell your corpse for scientific investigation - but you can donate it.

The three examples cited all have to do with the notion that the worth of a human life is beyond monetary value. Non-procreative sex generally doesn't involve life-changing decisions and is therefore categorically different.

Posted by James Gary | March 12, 2008 2:50 PM

This whole tradition–the idea that women need be preserved in glass so as not to “ruin” themselves, lest they diminish their sexual value by “giving it away”–restricts the lived autonomy of women in ways I can’t even begin to articulate. None of the slut-shaming makes sense unless you assume women live to give themselves to men in their purest possible form.

I'm sorry, but the values alluded to here are so embedded in my psyche that its hard to imagine sexuality without them. I mean, wouldn't it kind of depressing to live in a world in which the word "slut" is not sexually arousing?

Posted by Jim W | March 12, 2008 2:52 PM

You aren't paying them for sex, you're paying them to leave when it's over.

And let's try to avoid the paradigm of Male John versus Female Prostitute. There are three other combinations I can think of off the top of my head that involve two humans (and many more that involve more than two humans and various animals.)

Posted by Great White Snark | March 12, 2008 2:53 PM

Yes, those abuses happen whenever prostitution happens. They'll exist whether prostitution is legal or illegal. On the face of it, it seems to me that such abuses would happen less frequently if prostitution were legal. Prostitutes would be able to report abuse without fear of being arrested when they do so. They would still have to worry about plenty of consequences of reporting the crime - physical threats, loss of job, and so on - but those things already exist. It would still be an awful situation for those people in it, but slightly less awful than what it is now.

Posted by Tel | March 12, 2008 2:57 PM

then there will always be a tension between supply and demand that will almost certainly manifest itself in forced prostitution, slavery, child prostitution etc.

But those are all manifestations that have been traditionally associated with Black Markets.

In a standard market I have my doubts that significant number of proprietors (madams or brothel owners) or entrepreneurs (prostitutes) are going to engage in slavery or forced child prostitution, simply because they would be jeopardizing a legal, lucrative, free life (the DVD Porn industry is a pretty good illustration of what I suspect legalized prostitution would look like).

No, the standard market reaction to supply-demand tension such as the one you suggest is simply to raise compensation levels, not to resort to slavery.

On a side note, this particular issue also makes me go against my limited-government leanings, in that I believe legalized prostitution would need to be regulated like crazy and zoned in a fairly restrictive fashion. I would also want solicitation (i.e. streetwalking) to be subject to a fairly hefty fine from my local municipal government (for the same reason I support fines for 'drunk and disorderly in public' but oppose fines for 'drunk').

I can't believe so many people have come out in favor of legalized prostitution under the mantle of liberty. Prostitution is one of the single most victimizing industries - if women aren't being raped, they're being coerced into dangerous unwanted sex, physically abused by guys who "like it rough," and put at high risk of being murdered.

Suppose those are not due to prostitution's Black Market status and that legalizing prostitution would preserve these victimizations (something I don't believe).

The current solution (your preferred solution) is to maintain the same victimizations and add another: State sanction in the form of imprisonment and fines.

I fail to see how the current solution is better than legalization.

Posted by Shinyk | March 12, 2008 3:14 PM

Well, this is the crux of the matter, isn't it? There's the sex work theory--which Howley explains well--and then there's the reality, in which most sex workers are not doing it because they like having sex enough to make it a career. The issue, of course, is that sex work doesn't HAVE to be that way--just that it usually is, because life has this tendency to be awful. But either way, treating prostitutes as criminals while letting off johns is sexist and absurd. Decriminalization for sure. I don't know enough about it to say legalization, but there are definite arguments out there.

(BTW, this was my big problem with the movie Seven--punishing a hooker for the sin Lust, but not the john? The hooker was far more likely the capitalist than the lustful one.)

Posted by Susan B. | March 12, 2008 3:19 PM

No, the standard market reaction to supply-demand tension such as the one you suggest is simply to raise compensation levels, not to resort to slavery.

Yeah, but there is an audience that isn't capable of paying market rates but who still want to have access to prostitutes - I'd guess that these consumers are actually the majority or close to it. As a result, there is still a market for a black-market prostitution service that would operate outside of the scope of the legal services and would be almost entirely 'staffed' by slaves, children, etc.

In fact, the market wouldn't even change the upscale component of prostitution very much - the white collar service that Mr. Spitzer frequented probably consisted of very willing women who were able to command very high rates and very decent living/working conditions.

In either case, the benefits of legalization are not significant.

Posted by BFR | March 12, 2008 3:20 PM

A couple of people have brought up the danger, abuse, and slavery elements of the sex trade as reasons to keep prostitution illegal, but in fact it's the black market nature that enables and encourages these kinds of abuses.

By legalizing and regulating prostitution, the government would be able to check to be sure that the workers were being treated right and were working of their own free will. STD testing could be made mandatory for sex workers, which would decrease the risk of spreading disease. Women being endangered by their clients or their bosses would be able to get protection from the police without risking being arrested themselves. There could still theoretically be illegal brothels in operation which would not be regulated and thus would be able to get away with doing bad things, but potential clients would most likely prefer to shop the legit places both for convenience and safety.

My understanding is that one of the holds that pimps and brothels often have on their workers is their immigration status, so we would need to weigh the advantages and disadvantages of allowing or prohibiting the governmental entity charged with licensing prostitutes to work with the INS. My concern would be that if an undocumented sex worker fears that getting licenses to practice prostitution would risk deportation there might still be a dangerous black market, but the marketing advantages held by the licensed workers might overwhelm that problem.

Posted by Galen | March 12, 2008 3:23 PM

Yeah, but there is an audience that isn't capable of paying market rates but who still want to have access to prostitutes - I'd guess that these consumers are actually the majority or close to it. As a result, there is still a market for a black-market prostitution service that would operate outside of the scope of the legal services and would be almost entirely 'staffed' by slaves, children, etc.

I defy you to show an example of another illegal market that remains so active in the face of legal competition.

And how would we know what market rates would be until there is the legal market? (Oddly, it would take the prices inflated by illegality to justify the very risky and very nasty business of dealing with children and coercion.)

Posted by Brad L | March 12, 2008 3:28 PM

Well this is one of the things we have states for, and why its a good thing that some of them are more liberal than others. It would be good to see different states experiment with different forms of legalization or decriminalization, while others maintain existing laws. The legal regimes which are proven to produce the best overall results in practice might then be copied by other states.

However, I think Howley likely overestimates the role of attitudes regarding the preservation of female "purity" in the rationale for traditional prostitution laws. Other factors seem equally or more significant:

1. As with gambling, there is the belief that whoring is a potentially compulsive and frequently expensive behavior, and that paternalistic laws are needed to keep a man from dissipating his own, and his family's financial resources on prostitutes. (See Spitzer: $80,000 of transactions hidden from his wife.)

2. Sexism plays a role here. But it is not the patriarchal sexism that is concerned to preserve the purity of the potentially wayward woman, but instead the more frankly misogynistic form of sexism that views the the prostitute as an economic predator and parasite: a scam artist who uses her seductive magic to force nice young men to part with the contents of their purses. This is why prostitution law enforcement traditionally focused on the prosititutes rather than the Johns. Concerns about the exploitation of women by men are fairly modern. The more traditional view saw the man as the victim.

3. Concerns about the rapid spread of venereal disease.

4. Concerns about the bearing of bastard children, the burdens they place on societies and families, the legal wrangles over paternity and paternal obligation, and the social costs of delinquency and criminality to which illegitimate children were, often superstitiously, thought to be particularly susceptible. (See King Lear, Gloucester and Edmund: "the whoreson must be acknowledged".)

5. Concerns about the impact of prostitution on marriage and social order. If uncommitted sex is widely and cheaply available, it might be thought that fewer men will undertake the obligations of marriage in order to obtain it, leaving many unmarried daughters dependent on their parents for support, and with the latter then being forced to offer exorbitant dowries to relieve themselves of their financial obligation.

6. Along these same lines, concerns from women about the loss of what little social power they already possessed in traditional societies. This line of thinking is at least as old as Lyistrata. Sex is a source of female power, including economic power, and is particularly important in a traditional society where women are economically dependent on men. Women who give it away are seen by their peers as something like scab workers, betraying the sisterhood by lowering the demand and price for marriageable women. People impressed with this line of thinking might believe that society should structure its laws so to preserve a seller's market in female sexual favors. And that requires outlawing, or at least heavily regulating, prostitution. From this point of view, sexual wantonness is even worse than prostitution, since the latter at least charges a price.

7. Worries about class inequality, as women in the lower orders might be turned by prostitution into an army of harlots serving the wealthy, the well-born and the soldiers from occupying armies, leaving lower-class men without wives. Defenders of the poor, including in the clergy, might have been moved to support strict social and legal sanctions on prostitution to protect the poor from this kind of encroachment.

8. Even the concern with "purity" should not necessarily by viewed as an obsession with moral and religious feelings and taboos pertaining to the woman herself, but as a reflection of underlying anxieties about the mysteries of paternity. Kingdoms could be toppled, inheritances forfeited and fortunes lost through an unwelcome suit of paternity. The patriarchal urge to control female sexual behavior has more to do with the control of wealth and resources than superstitions about some sort of carnal "stain".

Howley says:

Even decriminalization, which treats Johns as outlaws and sex workers as victims, assumes that all sex workers are damaged, that no woman would ever love sex enough to make a career out of it.

That is probably true. But I suspect that the proportion of prostitutes who simply "love sex enough to make a career out of it" is quite small, just as is the proportion of steelworkers who love smelting enough to make a career out of it. Prostitution is a demanding job, no less onerous, boring and tiring than most jobs. The main motive for decriminalizing prostitution should not be far-fetched fantasies about allowing large numbers of women to achieve some sort of career fulfillment, but only the more practical goal of allowing them to pursue a difficult but timeless line of work in safety, with less exploitation than occurs in the illegal market, and with legal respect and legally enforceable protection of their interests.

Posted by Dan Kervick | March 12, 2008 3:38 PM

"I mean, wouldn't it kind of depressing to live in a world in which the word "slut" is not sexually arousing?"

??? I do live in that world. I don't find the word "slut" at all sexually arousing. And I'm not depressed.

Posted by Lynn Gazis-Sax | March 12, 2008 3:39 PM

"As a result, there is still a market for a black-market prostitution service that would operate outside of the scope of the legal services and would be almost entirely 'staffed' by slaves, children, etc."

Even if this business model would allow for the black-market outfits to offer cheaper pricing, the fact that potential customers would know that unlicensed brothels were "almost entirely staffed by slaves, children, etc." would keep a lot of customers away. I suspect most customers who buy services from slaves believe that the women are not slaves and would be horrified to find out otherwise. I would like to see legality and illegality alligned with whether or not people are doing bad stuff--currently there's a segment of the market that is illegal but not doing anything wrong, and so illegality means only "this is illegal" rather than "bad stuff is happening here."

And at this point do we even know what the market rates under legalization would be? How do rates in Nevada and Canada and the Netherlands compare to the rates in the US? There must be data on this.

Posted by Galen | March 12, 2008 3:44 PM

Prostitution is one of the single most victimizing industries - if women aren't being raped, they're being coerced into dangerous unwanted sex, physically abused by guys who "like it rough," and put at high risk of being murdered.

This is true. But these risks are reduced substantially where prostitution is legal and regulated. Where it is illegal, it never disappears, but the prostitute has no legal recourse against this sort of ill treatment. She may even be paying the policeman illegally for protection, with the latter then raping, exploiting or blackmailing her.

Posted by Dan Kervick | March 12, 2008 3:44 PM

I defy you to show an example of another illegal market that remains so active in the face of legal competition.

Guns, cigarettes, moonshine, prescription drugs. Pirated software, books, movies. Farm labor (slavery still exists). Gambling (you can play the state lottery but sports books are usually illegal).

That's just off the top of my head.

Posted by BFR | March 12, 2008 3:44 PM

Yeah, but there is an audience that isn't capable of paying market rates but who still want to have access to prostitutes - I'd guess that these consumers are actually the majority or close to it. As a result, there is still a market for a black-market prostitution service that would operate outside of the scope of the legal services and would be almost entirely 'staffed' by slaves, children, etc.

As far as Black Markets competing against legal Businesses in the offering of the same product or service, I have serious doubts that that could be the case. The cost of doing Black Market business, both legally and financially are just too, too high (vs. the costs of doing the same thing legally), to justify any benefits. Though, if Black Market prostitutes are selling their services for a lower price, there are no benefits to speak of in the first place (with a possible exception being the existence of an entity taxing legal prostitution to the point that it becomes severely unprofitable compared to illegal prostitution, but that's an anti-tax argument, not an anti-legal-prostitution argument).

Now, regarding the first point of demand without affordability, it's likely that lower-class citizens seeking prostitutes will have to settle for less-expensive prostitutes that, for whatever reason, don't appeal to more affluent/spendwilling Johns and have, therefore, had to cut rates.

Posted by Shinyk | March 12, 2008 3:47 PM

"There's the sex work theory . . . and then there's the reality, in which most sex workers are not doing it because they like having sex enough to make it a career."

That's the nature of labor in a capitalist economy - most *workers* are not doing their jobs because they like them enough to make it a career.

There's an attractive intelligent woman who is the assistant manager of a Starbucks-clone store next to my office building. She speaks three languages and has an advanced degree.

It is plain that she does not like her job enough to make it a career. Yet she does it anyway, for the money. I guess we could call her a wage slut.

That kind of alienation from your job is par for the course for a capitalist economy.

I suspect a lot of sex workers do their jobs for the exact same reason people work at Starbucks, because it's tolerable and it pays the bills.

Posted by Greg Abbott | March 12, 2008 3:51 PM

There must be data on this.

http://www.exile.ru/articles/detail.php?ARTICLE_ID=7936&IBLOCK_ID=35

Posted by blah | March 12, 2008 3:55 PM

Yeah, but there is an audience that isn't capable of paying market rates but who still want to have access to prostitutes - I'd guess that these consumers are actually the majority or close to it. As a result, there is still a market for a black-market prostitution service that would operate outside of the scope of the legal services and would be almost entirely 'staffed' by slaves, children, etc.

Agreed that there will always be some black market prostitution, even where prostitution is legal. But in places where prostitution is legal, the going market prices are substantially lower than they are in places where it is illegal.

I'm open to being shown wrong by the results of research, but my impression is that sex slavery and other kinds of coercive prostitution decline where prostitution is legal. Because most customers make use of the generally affordable legal market, the economies of scale are not present to make for a very lucrative black market in very low cost prostitution - especially if entering the black market carries substantial legal risks compared to the legal market.

Posted by Dan Kervick | March 12, 2008 3:58 PM

The cost of doing Black Market business, both legally and financially are just too, too high (vs. the costs of doing the same thing legally), to justify any benefits.

If you rely on violence and coercion, then you don't have to pay the prostitutes much money if any. Any money collected by the prostitutes is simply profit for the crime syndicates which are operating the business, therefore it would be very profitable if you scaled it out far enough.

Posted by BFR | March 12, 2008 3:58 PM

Howley assumes prostitutes have sex so much because they enjoy it...? If they did they could certainly do it all day long for free like some/most of us.
Prostitution is a very different thing than promiscuity. The former is degrading and the latter isn't.

Posted by Elle Kamihira | March 12, 2008 3:59 PM

You can protect your friend's dirty secrets, but if you ask for money in exchange, that's blackmail.

Posted by DavidS | March 12, 2008 4:09 PM

Guns, cigarettes, moonshine, prescription pills

There is no Black Market of any significant size for cigarettes and moonshine. Moonshiners make moonshine for reasons having more to do with tradition than profitability. A Black Market for cigarettes could develop if the price keeps being artificially inflated by taxes, but, if you're on the East coast, it's much easier to make an occasional, legal trip to Delaware and buy them legally for pre-tax prices.

Guns and prescription pills have a thriving Black Market because the standard market is inaccessible (i.e. illegal) for many who have demand for those products. In other words, for many, guns and oxycontin are still illegal, hence the Black Market.

Pirated software, books, movies

Stolen merchandise is illegal, so there will always be a Black Market for it. But stolen merchandise doesn't apply to a service such as prostitution, since you can't very well steal and resell a single trick.

Farm labor...Gambling

Gambling only applies as a situation in which a Black Market thrives in the face of a normal market if Black Market gambling thrives in Vegas, which it doesn't.

I'm unaware of slave labor in farming.

Posted by Shinyk | March 12, 2008 4:18 PM

I'm unaware of slave labor in farming.

It pops up periodically in the ag regions in border states.

Guns and prescription pills have a thriving Black Market because the standard market is inaccessible (i.e. illegal) for many who have demand for those products. In other words, for many, guns and oxycontin are still illegal, hence the Black Market.

Inaccessible due to regulation v. inaccessible due to market cost. I think this is a distinction without a meaningful difference.

Stolen merchandise is illegal, so there will always be a Black Market for it. But stolen merchandise doesn't apply to a service such as prostitution, since you can't very well steal and resell a single trick.

Pimps are able to 'resell' sexual services to customers who are unwilling to pay market rates. Again, I don't think there's a meaningful distinction here.

Posted by BFR | March 12, 2008 4:26 PM

If you rely on violence and coercion, then you don't have to pay the prostitutes much money if any. Any money collected by the prostitutes is simply profit for the crime syndicates which are operating the business, therefore it would be very profitable if you scaled it out far enough.

But that's exactly why Black Markets don't survive in the face of normal markets offering the same thing. Even if you can make slightly more money, you don't have access to courts, so you have to worry about violent retribution not only from agents of the state, but also from customers/business associates due to monetary disputes.

The pittance in extra money just isn't worth the risk of being killed or sent to prison.

Posted by Shinyk | March 12, 2008 4:27 PM

Guns, cigarettes, moonshine, prescription drugs. Pirated software, books, movies. Farm labor (slavery still exists). Gambling (you can play the state lottery but sports books are usually illegal).

I was gonna write a rebuttal to this, but Shinyk pretty much nails it.

Posted by Brad L | March 12, 2008 4:39 PM

Inaccessible due to regulation v. inaccessible due to market cost. I think this is a distinction without a meaningful difference.

Black Markets spring up when supply exists, demand exists, but the transaction is prevented by something done by the state.

Inaccessible due to regulation/illegality results in Black Markets. Inaccessible due to market cost results in non-buys or an inferior or knockoff product/service to cater to less affluent customers.

Put bluntly, if someone poor wants a prostitute and doesn't want to pay high class escort rates, it's only a matter of time before a discount vendor begins legally providing less-desirable prostitutes at a lower rate.

Pimps are able to 'resell' sexual services to customers who are unwilling to pay market rates. Again, I don't think there's a meaningful distinction here.

But not able to steal sexual service in a way that is profitable when considering the now-unnecessary risk. That's the distinction.

Posted by Shinyk | March 12, 2008 4:40 PM

One of the assumptions (repeated by many above, and one I'd agree with) is that legalized prostitution would have to be regulated (mandatory STD tests at a minimum), zoned, and taxed. All of these create new costs which must be passed on to the customer, as well as barriers which will keep the most vulnerable current prostitutes (the drug-addicted and underaged) out of the legal market.

So we have a client base which is priced out (relative to current costs), plus a worker base which is regulated out of the legal market, yet remains desperate due to lack of other options. It seems inevitable that some remaining black market will persist under these conditions; the critical question is, how much? If 90% of current prostitutes would fail the mandatory STD test, then all you're doing by legalizing it is bringing new women into the industry. The ones currently hooking illegally will most likely keep at it at whatever price the remaining black market will bear, because if they had better options, they'd be pursuing those already. If, on the other hand, a significant number of current prostitutes could move into a legal, aboveboard status, along with their clients, then legalization is an overall benefit. I'd agree with those who say that the current regime clearly isn't working, so it's worth finding out; however, I'd also have a short hook on the experiment if it turns out to just expand the overall incidence of prostitution without helping those at the bottom of the heap.

Posted by five toed sloth | March 12, 2008 4:41 PM

The pittance in extra money just isn't worth the risk of being killed or sent to prison.

It's only a pittance if you're small scale. Besides, to your point about 'normal markets' - there are restrictions on virtually every market. If there demand exceeds the market supply as dictated by the restrictions, then a black market will develop.

Seems pretty obvious to me that a black market would still exist with legalized prostitution because there just aren't going to be enough women willing to participate and the restrictions society places on them will drive costs up even farther. The desire to visit prostitutes isn't limited to the wealthy, so middle and lower class men will still look for alternatives. The lack of a viable market in their price range will deter some for sure, but not all.

I'm pretty sure that black markets exist in Holland and other legal countries, and I haven't spent any time studying the effects but I'm also pretty confident that the black market hookers in those countries still have generally horrible living conditions.

Posted by BFR | March 12, 2008 4:41 PM

Well, call me a prude, but I think a man who sleeps around (Bill Clinton, Spitzer, or even your average college football player) is "degrading" himself just as much as a slutty woman. I've lost respect for any male friend who behaves like that.

I'm a heterosexual man btw.

Posted by nbt | March 12, 2008 4:48 PM

But not able to steal sexual service in a way that is profitable when considering the now-unnecessary risk. That's the distinction.

I disagree with how you are defining unecessary. If your business is organized crime, then the need is to find holes in the market that can be exploited for profit.

If you legalize prostitution and regulate/price a number of men out of the market, then you are creating an opportunity for individuals who are already willing to rely on high risk violent behavior to make a profit - which they could because they could reduce their supply costs to near zero through exploitation and abuse.

I'm not talking about 'legitimate' service providers expanding into high risk segments, I'm talking about people who look for high risk/high reward opportunities.

Posted by BFR | March 12, 2008 4:50 PM

Its legal to donate a kidney, but not legal to donate a kidney for $$$

Posted by Alan | March 12, 2008 4:50 PM

BFR,

If there demand exceeds the market supply as dictated by the restrictions, then a black market will develop.

But that's an argument against economically restrictive regulation (i.e. taxation), not against legal markets.

The desire to visit prostitutes isn't limited to the wealthy, so middle and lower class men will still look for alternatives. The lack of a viable market in their price range will deter some for sure, but not all.

Which, as I've said, will result in either non-buys or vendors offering legal, unattractive prostitutes at lower rates.

Maybe some Black Market would still exist, but I don't think it would be significant unless regulation forced it to be so, or unless lots of Johns tend to have a high demand for some sex act that will always just be completely illegal for reasons unrelated to moral concerns. Even if that were the case, I'd still think a smaller Black Market is preferable, if possible.

Five toed Sloth,

One of the assumptions (repeated by many above, and one I'd agree with) is that legalized prostitution would have to be regulated (mandatory STD tests at a minimum), zoned, and taxed.

I don't know that zoning restrictions would decrease profitability, but I find the rest of your points and concerns pretty valid.

Posted by Shinyk | March 12, 2008 5:02 PM

My original point was that if there's a genuine supply/demand imbalance, then this seems like an area where legalization might just make things worse. There isn't enough supply right now without having to use force to create more supply.

Legalization may create a scenario where demand increases (because it's legitimized for men) but supply isn't increased as much. Coercion results from need to increase supply to meet.

Posted by BFR | March 12, 2008 5:03 PM

If your business is organized crime, then the need is to find holes in the market that can be exploited for profit.

Agreed, but that's easier and more lucrative in an illegal market.

Consider the two cases where an organized crime cash-cow was legalized, Vegas gambling and Alcohol. With gambling in Vegas, organized crime simply went legit. With Alcohol, organized crime's profit margin was erased by State stores and distributorships.

On a side note, I'd just like to note that it's nice to have a civil discussion in the comments section of a blog.

Posted by Shinyk | March 12, 2008 5:15 PM

Coercion results from need to increase supply to meet.

Usually price inflation results from that scenario, not coercion.

Still, it might be, as five toed sloth and you have suggested, that there is something about prostitution that lends itself to more problems when legalized (though I don't share that opinion). Even so, the current strategy isn't very good and legalization is at least worth giving a chance.

Posted by Shinyk | March 12, 2008 5:19 PM

Even so, the current strategy isn't very good and legalization is at least worth giving a chance.

I think the current strategy not working is more a function of it being an inherently unpleasant market more than anything else.

I'm in favor of legalizing soft drugs because I don't see an inherent risk in the activity, but opposed to legalization of say, heroin because use is demonstrably debilitating (and likely in a permanant way).

I personally think that prostitution is in the heroin class as opposed to the marijuana class because I don't think there's a way to reconcile supply and demand and coercion is always going to be a big component. Legalizing it (and increasing demand) is potentially pretty risky.

Posted by BFR | March 12, 2008 5:26 PM

Usually price inflation results from that scenario, not coercion.

I'd also point another context - Walmart is pretty widely perceived as using a different kind of coercion to maintain low prices.

They jawbone suppliers to maximize efficiency, thus boosting inventory without having to raise prices - this allows them to continue to serve a market of people who would otherwise not be able to afford certain goods were it not for Walmart.

Posted by BFR | March 12, 2008 5:31 PM

"But in places where prostitution is legal, the going market prices are substantially lower than they are in places where it is illegal."

Oddly, this seems to not be true. If craigslist is an accurate gauge, prices for full service escorts in Las Vegas and Reno are as high as or higher than prices in the San Francisco Bay Area. I can't speak for how comparable the services actually are.

Posted by ? | March 12, 2008 5:47 PM

Can you post the results of that little craigslist researchproject? Data from a few more cities would be great too if somebody wants to do it. I'm on a work computer and so obviously I won't be doing the research myself. . .

Also, it may be relevant that prostitution is illegal in Las Vegas proper, but legal out in the surrounding areas, so if you want a call girl to visit your hotel on the strip I think it's illegal. I've also heard that the licensing process in the places where it's legal are excessively restrictive--maybe a cap on the number of people who can be licensed, or something like that. I don't recall. So it's possible that the craigslist prices reflect the black market rates in a city that goes out of its way to attract tourists with money to burn and who are looking to cut loose. So demand is probably abnormally high there, although supply is probably higher too.

Posted by Galem | March 12, 2008 6:22 PM

what Dan Kervick said

Posted by Amaretti Biscuits | March 12, 2008 6:40 PM

"Well, call me a prude, but I think a man who sleeps around (Bill Clinton, Spitzer, or even your average college football player) is "degrading" himself just as much as a slutty woman. I've lost respect for any male friend who behaves like that.

I'm a heterosexual man btw."

Oh just admit it. Your jealous as hell of these guys 'cause you're not getting as much.

Posted by kafka | March 12, 2008 7:16 PM

@Shinyk

"Maybe some Black Market would still exist, but I don't think it would be significant unless regulation forced it to be so, or unless lots of Johns tend to have a high demand for some sex act that will always just be completely illegal for reasons unrelated to moral concerns. Even if that were the case, I'd still think a smaller Black Market is preferable, if possible."

Sadly , a considerable part of the market for prostitution is the market for underage girls. THAT won't change under any legalization scheme

@BFR:

"My original point was that if there's a genuine supply/demand imbalance, then this seems like an area where legalization might just make things worse. There isn't enough supply right now without having to use force to create more supply."

Why wouldn't a lot of women just move into the business? I would think that illegality its whats keeping a lot of women from entering the prostitution labor market. Frankly, I think that supply will expand if prostitution is legalized.

Posted by stonetools | March 12, 2008 8:40 PM

Hello Liberal Friends:

And yes, I'm a liberal.

I also work with HIV+ inmates in a big city jail.

The question of prostitution as a victim-less crime works great if conducted in a vacuum, with say a a pair of upper-middle class women who've decided to chose "sex work" as their calling. Here, one will note, consent is not an issue. We could even call it informed consent.

In the real world, it doesn't work that way. Even for the high end "call girls."

I also work with the pimps. Legalize it, and these same scumbags change their recruitment tactics.

Think about it. Stop trying to show how sex positive you are, and think about it.

And yes, I really am a hard core, social worker, dyed in the wool liberal.

But this Shite makes me sick.

Posted by Amur | March 12, 2008 11:40 PM

Where all these discussion come a cropper is where you change one social element, but don't change the other elements involved.

You legalize prostitution, but you don't change the wage or educational or other social status of ghetto blacks, for example.

So the end result is some improvement, but a lot of the negative elements remain - because they were never altered by the alteration in one social element.

In other words, without widespread social change of many elements - a near impossibility given human history - you're not going to significantly change things.

Human behavior changes under only two conditions:

1) New technology that makes a behavioral change possible and profitable.

2) A boot up their ass or a gun in their face.

Prostitution, drug use and much else will never be made legal in this country because there's a class of people who have built careers around it not being legal. The "law enforcement complex" is as corrupt and damaging to this country as the military-industrial complex, if not as damaging to the rest of the world.

Posted by Richard Steven Hack | March 13, 2008 12:59 AM

A society that does nothing to discourage promiscuity, whether through legal or purely normative means, is going to get more promiscuity. That alters the meaning and significance of sex, and for people who wish to live monogomous lives in committed relationships, that is a threat. That may explain part of the impulse to criminalize.

Now you may dismiss those concerns as puritanical. But it is not abhorrence of sex and a sanctimonious desire to judge others that motivates opponents of promiscuity. Rather, we are insisting on enough space for our kind of sexual relationships, which at some point become incompatible with a society that encourages promiscuity and ridicules monogamy. And when you approach the boundaries of pluralism, there's no way to solve that conflict except through politics.

To me, the existence of a contested public morality must be acknowledged. What resources do you have, for instance, to insist that gay marriage should be legal, if you don't think that public recognition of the goodness of a homosexual relationship has any significance for homosexual couples who wish they could marry? The meaning of marriage, like the meaning of sex, is highly contested and publicly defined, and you've got to fight to make space for your particular relationship to exist with dignity and security.

That is not to say I am convinced that we should continue to criminalize prostitution. That would turn on the question of exploitation, for me, and that is highly sensitive to considerations of inequality, racism, and sexism. For instance, if the only question is whether or not there should be highly paid sex workers with high levels of autonomy and bargaining power with low potential for abuse, I'd say let them be in the name of pluralism. On the other hand, I have huge problems with international sex tourism and entire economic development strategies that rely on them (see e.g. Thailand). Without fighting over the aesthetics, I tend to think that the whole enterprise is so rife with the potential for exploitation and inhumanity that blanket criminalization on both ends of the transaction is advisable.

At some point you need to stop copping out with "consent" and recognize the potentially problematic nature of the choices you are structuring before those choices are even made. And that's why the flat libertarian approach to decriminalization of prostitution just doesn't cut it for me because it avoids the potentially zero-sum political nature of these contested concepts of sex, relationships, and marriage.

Posted by Woody | March 13, 2008 1:51 AM

despite that fact that prostitution is legal in the netherlands there is significant human trafficking and sex servitude. I myself favor decriminalizing prostitution, but let's do so with our eyes open. the illegal status is not the thing keeping most women from becoming prostitutes, and wherever demand exists for legal services demand will also exist for (cheaper) women who have been lied to, beaten, and had their passports taken away so the have to work in a brothel rather than as a waitress or whatever (which they were promised and which they would prefer.) this "no one would run the risk of breaking the law when there are legal brothels" thing is moronic. consider ho much the profit margin changes when you don't pay the girls anything, for example. finally, the idea that most consumers of paid sex would be horrified to know the women were unwilling slaves is super-extra-strength bullshit. it hardly takes a gimlet feminist eye to see that that's part of the fucking appeal.

Posted by belle waring | March 13, 2008 4:46 AM

If this is the oldest profession in the world, it must also be the profession which we have the most regulatory experience with. If we still don't know what to do, it can only be because nothing works.

Legalization? Sounds fine when you consider the Spitzer case, two adults exchanging services and money on an agreed basis. But the social ramifications are enormous, and not just in abuse cases. Do I want my daughter to grow up in a society where prostitution is a legal job like any other, only easier and much better paid? No, I do not.

Criminalization? Drives it underground where women are even less protected.

So the deal just about the entire world has hit upon is to call it illegal (allowing intervention in abuse cases while discouraging young women from getting into it) while tolerating it in all but the worst cases (a bit like marijuana use). Not perfect but in 10,000 years we haven't found anything better.

Of course the above presumes that law enforcement is not carried out by zealots or by the politically motivated.

Posted by Hans B | March 13, 2008 5:44 AM

Spitzer = Clinton

Clinton = Spitzer

Posted by wilson | March 13, 2008 9:56 AM

Thank God some sane people showed up at the end of this discussion. Amur, Woody, and Belle, thank you. Yes, I posted above that otherwise-sensible liberals are rushing to show how much they disagree with conservative ideas about sex by expressing their belief that prostitution be legalized. Although I didn't write it, shinyk, it is unfair to say that the current solution which criminalized prostitutes and ignores johns is my "preferred" solution.

Of course I would vastly prefer to see pimps in jail and johns with hefty fines, and the current solution (like the city of Saint Paul, which posts shaming pictures of prostitutes and johns alike) is unfair to women. That doesn't mean prostitution should be given legal imprimatur.

Look, most of us here are liberals. Big time liberals. What is one of our biggest concerns? Labor conditions. Yes, the labor conditions of illegal prostitutes suck. It does not follow that legalizing prostitution is the best way to improve labor conditions. Shinyk and Dan Kervick seem to be looking at the theoretical legalized future of prostitution with rose-colored glasses: Prostitutes will have recourse with police and judges! Regulation will prevent abuse! Give me a break.

Police will still abuse prostitutes just the same as they did before. Just because your job is legal does not mean the legal profession will respect you or pay attention to you. Women will still be lured in from foreign countries with promises of real jobs. And dangerous coerced sex is not going away. "The customer is always right." That won't go away in a legalized world.

What you will get instead is a still-dangerous world where a black market will still exist outside of red-light districts (that prostitution is legal in Nevada has not diminished the black market in off-limits Vegas or Reno), women will still be subject to dangerous working conditions, and police will essentially ignore prostitution (because it's legal now). Maybe this is an overly pessimistic prediction, but I would sure rather be overly pessimistic than think that The Regulated Market Will Solve Everything.

Posted by Aaron | March 13, 2008 9:59 AM

Belle,

this "no one would run the risk of breaking the law when there are legal brothels" thing is moronic. consider ho much the profit margin changes when you don't pay the girls anything

But the profit margin increases less than the increase in cost, manifesting as personal, life-and-death danger to the profiteer, which is why Black Markets don't exist in any real way when there's a competitive legal market. You no longer see large, underground bookmaking operations in Vegas, and you no longer see large numbers of people buying Jack Daniels' from the local mobster.

will also exist for (cheaper) women who have been lied to, beaten, and had their passports taken away so the have to work in a brothel rather than as a waitress or whatever

I imagine that kind of thing would still be illegal under any legalized prostitution plan. Can it be stamped out completely? Maybe not. Still, I think you'll see less of that when the women victimized in such a way can file a police report without being arrested and, maybe more importantly, when those who would victimize these women in such a way know that these women can file a police report without being arrested.

Aaron,

Yes, I posted above that otherwise-sensible liberals are rushing to show how much they disagree with conservative ideas about sex by expressing their belief that prostitution be legalized.

I'm only liberal in the classical sense, not in the Wilsonion "I'm an elite progressive protecting the idiot-(wo)manchildren from their worst instincts" sense. I've been a registered Republican for about ten years.

That doesn't mean prostitution should be given legal imprimatur.

Whether we, as a society, approve of prostitution is, in my view, the wrong question. The proper questions, as I see them, are:

1) Is prostitution such a threat that the state should use violent (or the threat of violent) sanction to enforce laws against anyone participating in it? I say when children (who are a protected class, unlike adult citizens) are prostituting or being prostituted, the answer is yes. If not, no (though the enforcement of other alleged biproducts, such as slavery, which are illegal irrespective of the legality of prostitution, is still perfectly valid).

2) Prostitution is a pretty ugly business, as are most Black Market enterprises. Would the gutting of that Black Market reduce overall violence, exploitation, improve working conditions, etc. for the individuals involved in this profession? Every time in the history of this country a Black Market was legalized, it did, (though "five toed sloth" had a thoughtful theory that the economics of legalized prostitution are unique and wouldn't work very well).

Shinyk and Dan Kervick seem to be looking at the theoretical legalized future of prostitution with rose-colored glasses: Prostitutes will have recourse with police and judges! Regulation will prevent abuse!

Not perfectly, but, by and large, yes. I have no illusion that your average legal brothel would be any "cleaner" and "honest" in business practice than your average legal strip club, probably less so. Even still, that's a big, big step up.

Hans,

If this is the oldest profession in the world, it must also be the profession which we have the most regulatory experience with. If we still don't know what to do, it can only be because nothing works.

There are very few instances in history in which prostitution was legal, therefore the only real regulatory experience human societies have with prostitution is in making it illegal, which hasn't done much good.

Of course the above presumes that law enforcement is not carried out by zealots or by the politically motivated.

Which, I suspect, is a fairly unlikely presumption.

Woody,

Rather, we are insisting on enough space for our kind of sexual relationships, which at some point become incompatible with a society that encourages promiscuity and ridicules monogamy.

I don't personally believe there is any situation in which Person A has the right to imprison Person B because they don't like how the symbolism of Person B's profession/private activities interfere with Person A's idealized dream about the meaning of his or her own marriage.

Social conservatives make this same argument in preventing the recognition of gay marriages. The logic is not made any more valid by progressives appropriating it.

Posted by Shinyk | March 13, 2008 3:13 PM

Shinyk,

There are very few instances in history in which prostitution was legal...

The opposite is true; it is criminalization which is the exception.

Posted by Hans B | March 13, 2008 6:07 PM

Not sure how many commenters are males, presumably most. Because this conversation seems to be slanting towards SOME way to make prostitution reasonable and legal, I'm just curious as to what you think certain kinds of sex are actually worth. And also, despite what you think it's worth, how much would you actually pay for it? It is my guess, and only a guess, that women have no idea, and I mean absolutely none, what to charge. It is my guess, and again, only a guess, that if the minimum were $100 (for anything) even poor guys would find $100 (instead of the $5 I occassionally hear about). It is my guess that the possibility Lysistrada is more fact than fiction, and that if women ever really really really knew what heaven was between their legs (quite a bit beyond gold and platinum - again in my personal opinion, and that goes for "skanks" too) this would be a whole different planet, and one I'd like to see. So, if you dare - what's that little bit of heaven worth to you, especially since it's sex only - the woman has to/gets to leave.

Posted by bridget | March 13, 2008 6:19 PM

It's hard to think of many other widely engaged in activities where the activity itself (sex) is legal, but charging money for it is illegal.

Organ donation and giving birth readily come to mind.

Posted by Amanda Marcotte | March 13, 2008 6:24 PM