The Perils of Criminalization

Nicholas Kristof warns us not to assume that prostitution is mostly done voluntarily:

But whatever one thinks of legalizing prostitution, let’s face reality: The big problem out there is the teenage girls who are battered by their pimps, who will have to meet their quotas tonight and every night, who are locked in car trunks or in basements, who have guns shoved in their mouths if they hint of quitting. If the Spitzer affair causes us to lose sight of that, then the biggest loser will be those innumerable girls, far more typical than “Kristen,” for whom selling sex isn’t a choice but a nightmare.

I don't really think you can preface this insight with a "whatever one thinks of legalizing prostitution." After all, you have to ask yourself why coerced labor and the other ills associated with pimping and trafficking are so prevalent in this particular line of work. It seems like part of the answer has to be that a prostitute, as a criminal, has no real legal recourse against maltreatment. As with the drug trade, markets in illegal goods wind up characterized by more violence and threats of violence than you see in a legal market. That's not to say we should welcome a totally free market in hookers, but you also can't just sweep policy questions aside in a fit of indignation -- indignation is good, but you need to look for practical solutions.

Comments

Can't we outlaw slavery, pimping, and the like, and yet not outlaw prostitution? It would seem that the prostitutes who aren't doing their work out of free will are being victimized by other crimes. So why not enforce those laws and let consenting adults do what they like?

Posted by Just the Facts | March 16, 2008 2:18 PM

You're right, of course, and so is Kristof. I get really aggravated with "feminist" arguments that prostitution is just another job choice and that women "who really like sex" should be allowed to choose it. In reality, it's rarely a choice: an appallingly high percentage of prostitutes are girls who ran away from abusive home environments, and started prostituting themselves to survive. These kinds of arguments give feminism a bad name, and obtusely ignore the actual conditions of these girls and women.

Posted by beckya57 | March 16, 2008 2:20 PM

Prostitution is going to go on whether the law prohibits it or not. What Kristof describes is the result of an underground/black market in flesh. Obviously there will be misery in prostitution, just like there is misery in many jobs. The question is whether there is a net social benefit in decriminalization and regulation over the system we have now.

Posted by Helter | March 17, 2008 9:29 AM

"Can't we outlaw slavery, pimping, and the like, and yet not outlaw prostitution? It would seem that the prostitutes who aren't doing their work out of free will are being victimized by other crimes. So why not enforce those laws and let consenting adults do what they like?"

Ummm...

So if we "let consenting adults do what they like", how is prostitution still outlawed?

-----

Matthew's post is correct, obviously.

Posted by Petey | March 17, 2008 9:29 AM

Of course, if they are kidnapped, abused and imprisoned to work in an Asian garment factory, well that's just free trade and is hunky-dory.

Posted by justawriter | March 17, 2008 9:30 AM

Making prostitution illegal creates more problems than it solves. If you make something illegal, you just attract criminals and lowlifes to that activity. Nevada has some legal prostitution that reduces the pimping and abuse problems greatly (in those brothels). It's time to try the Nevada model on a larger scale to see if it works. However, the anti-sex crowd will block any meaningful reform now and for the foreseeable future.

Posted by Marvyt | March 17, 2008 9:31 AM

Apologies to Just the Facts. I misread his/her comment.

Posted by Petey | March 17, 2008 9:35 AM

Can't we outlaw slavery, pimping, and the like, and yet not outlaw prostitution?

A quick thought experiment. Slavery, I get. But if you outlaw "pimping," what precisely is it you're outlawing? Does this mean no third party can be part of the transaction? Were the operators of the Emperor's Club pimps in this way of looking at it? Let's assume for the sake of discussion that all of the women working with the EC did so voluntarily, none were coerced or enslaved. Would the EC institutionally be outlawed under the legal regime you suggest?

Really not trying to make an argument here. I'm ambivalent to agnostic about legalizing prostitution; more inclined to favor than oppose, but not absolutely sure it will do what we'd hope it will do.

Posted by DairyStateDad | March 17, 2008 9:59 AM

justawriter:
Bingo!! And yet not many people seem to have a problem with that. Especially the elites.

Posted by Joe Klein's conscience | March 17, 2008 10:07 AM

If Kristof is really concerned about the social phenomena he so sensitively describes, phenomena that have been with us for ages, he should ask himself what can be done to really clean it up. Clearly, the standard approaches are having only a marginal effect. A legal and well-regulated prostitution market would do much to drive out much of the really nasty stuff. It would offer meaningful labor protections, meaningful health and safety protection, and drive out many of the bunko artists, the price-gouging middle men, the slave traders and the drug addicts.

Posted by Dan Kervick | March 17, 2008 10:10 AM

In reality, it's rarely a choice...

In reality, this is almost certainly false. Data on the subject notoriously is weak, & many of the most widely cited statistics are methodologically unsupportable products of activist pseudo-scholars (e.g., the egregious Melissa Farley, on whom Kristof foolishly relies). In fact, the best evidence suggests that, whatever else might be said, only a small minority of sex workers are coerced into it. Which isn't to say that conditions for some prostitutes, esp. the minority who work the streets, aren't terrible. But false ideas about how they got there don't help us concert policies to help the people who need it.

See the series of papers on the subject by Ronald Weitzer of George Washington University. (URLs won't get through here, but are easy to Google):

"Flawed Theory and Method in Studies of Prostitution." Violence Against Women 11 (Jul. 2005): 934-949.

"New Directions in Research on Prostitution." Crime, Law & Social Change 43 (2005): 211-235.

"Moral Crusade against Prostitution." Society 43 (Mar.-Apr. 2006).

"Prostitution Panic." American Sexuality 3, no. 4 (2006)

"The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade." Politics & Society 35 (Sep. 2007): 447-475.

"Prostitution as a Form of Work." Sociology Compass 1 (Oct. 2007): 143-155.

Posted by KH | March 17, 2008 10:12 AM

Don't forget about all the drug addicts. I'd a large number of the most vulnerable, abused prostitutes are junkies / methheads / what have you.

It's pretty much axiomatic that long-term female drug addicts will turn to prostitution.

Posted by Taisa | March 17, 2008 10:27 AM

The weird thing is, in his immediately previous column, Kristof said this:

Sweden experimented in 1999 with a radically different approach that many now regard as much more successful: it decriminalized the sale of sex but made it a crime to buy sex. In effect, the policy was to arrest customers, but not the prostitutes.

Some Swedish prostitutes have complained that the policy reduced demand and thus lowered prices, while forcing sex work underground. But the evidence is strong that the new approach reduced trafficking in Sweden, and opinion polls show that Swedes regard the experiment as a considerable success. And the bottom line is that if you want to rape a 13-year-old girl imported from Eastern Europe, you’ll have a much easier time in Amsterdam than in Stockholm.

A growing number of other countries are pursuing the Swedish model. South Korea had a vast trafficking industry in the 1990s, but a crackdown has led Korean gangs to traffic girls to California instead — because pimping teenagers there is seen as safer and more profitable than at home.

No approach is going to work perfectly. But the Swedish model seems to have worked better than any other.

The Swedish approach looks pretty good to me. As I said over at Cogitamus the other day, I'm leery of full legalization, due to the possibility of shifting from a world where crime lords control the business, to one where corporate overlords do. The corporate bottom-line types excel at treating human beings as if they were pieces of machinery, using them until they break down or wear out, and then toss them out. The risks of applying that approach to prostitution are obvious.

To organize prostitution in a way that crime lords couldn't do much with it, and the corporations couldn't touch it at all, sounds like the best possible outcome we'd be likely to come up with.

Posted by low-tech cyclist | March 17, 2008 10:35 AM

I used to think that legalizing prostitution might be a good idea.

The Netherlands legalized prostitution and I assume they thought legalization would end many of the problems of prostitution. It did not and it is "backtracking on its legalization model".
Kristof, NYT, March 13

In the same op-ed he pointed out that the average age of death for a prostitute is 34. Lot more info in that op-ed.

Legalizing it won't stop one of the major markets in the sex trade -- the trafficking of underage girls and boys. In fact, the Netherlands found that legalization encouraged more criminal gangs in the sex trade and child prostitution. "flourished".

Not going to try to post all of the facts about prostitutes, but I think that most people who look into it will see that it is not a victimless crime.

We never completely wipe out any particular behavior by outlawing it, but that is not a good reason to legalize something. That logic would say we should legalize any and all behavior.

Again from Kristof, Sweden made it illegal to buy sex but NOT illegal to sell sex. This they found to make a big difference and reduced trafficking. "And the bottom line is that if you want to rape a 13-year-old girl imported from Eastern Europe, you’ll have a much easier time in Amsterdam than in Stockholm."

And those brothels in Nevada? Not so great for prostitutes. Here are just two of the reasons why:
"... the large power difference between brothel owner and prostitute gives prostitutes very little influence over their working conditions;
while prostitutes undergo legal and health background checks, their customers do not; the regulations are thus designed to protect customers, not prostitutes."

Posted by eve | March 17, 2008 10:42 AM

If you coerce someone into having sex--whether the motive is profit or not--isn't that rape? Shouldn't rape laws be enforced against pimps who use violence or other means of coercion?

Posted by Jim Naureckas | March 17, 2008 10:43 AM

Opponents of legalisation point to the problems in some areas that have experimented with legalisation, including ongoing violence against women. I think this is misguided. If your policy is shaped by an attempt to minimize trafficking and violence against women, then you won't achieve it. Our current policy certainly isn't, and it's very likely that a well-regulated legal regime would be far better. There is also the Swede system. How effective is the system at reducing violence against women? I can imagine it suppresses the demand, but would that be enough? I'm not convinced that it's the best solution available.

Posted by mpowell | March 17, 2008 10:48 AM

I really don't understand what substantive benefits the Swedish system is supposed by its supporters to offer as a potential reform of the US system. It is already illegal in the US to purchase sex. It is also illegal to sell sex. And yet the US has a huge prostitution industry with all of the horrors that Kristof cites. Exactly how is it that keeping the purchase of sex illegal, while making the sale of sex legal could be expected to contract the US sex trade?

People seem to be measuring the Swedish reform by its apparent success in reducing the number of prostitutes and Johns in Sweden. But Sweden moved to its current system from a system in which prostitution was legal. So, obviously, criminalizing some activity that was previously legal is likely to reduce the prevalence of that activity. But there isn't the slightest reason to think that adopting the Swedish system in America would reduce the levels of prostitution in America, or have any impact on the social ills Kristof describes, since adopting the Swedish system here would be a move in the direction of partial decriminalization, without creating the infrastructure of social and labor support that would be needed to well regulate the industry.

Posted by Dan Kervick | March 17, 2008 11:17 AM

Obviously there will be misery in prostitution, just like there is misery in many jobs.

Yeah, right, prostitution is just like The Office or Dilbert - idiot.

Posted by novakant | March 17, 2008 11:21 AM

As Matt previously noted, why are we looking for data in Sweden and the Netherlands when we could find far more interesting, meaningful data in Nevada?

I want to know if "it's rarely a choice" for Nevada prostitutes. I have no idea if that's the case. But I am certain that is where the best data is.

Posted by owenz | March 17, 2008 11:32 AM

Pimps exist for a reason; they are middlemen, like headhunters, real estate brokers and literary agents. Its just that job hunting, house selling and book writing aren't illegal, so there are all sorts of protections for the principals. The legality of the underlying transaction, and not its level of coercion is what the situation is all about.

Posted by Peter Driscoll | March 17, 2008 11:40 AM

If you're going to make an argument against someone else's position, you have a responsibility to both cite it correctly, and to deal with their response to your argument, if they have already offered one. In case Kristof has.

In his NYT column, he said that the Netherlands did not see a reduction in trafficking or coercion under a legal prostitution regime, and he claimed that Sweden has had success with illegalizing the purchase, but not the sale of sex service, arresting the Johns, and not the hookers.

I don't find these arguments all that persuasive, but you do have a responsibility to respond to them.

Posted by jayackroyd | March 17, 2008 11:48 AM

I could support legalization if the social safety net was there to ensure that prostitutes were making a willing choice. Just because a woman is in poverty, is dealing with a broken home as a teenager or is addicted to drugs should not force her to seek work as a prostitute. I have a hard time believing that there are that many women who given a choice would become prostitutes. Even bad jobs don't involve something as seemingly horrible as forced sex with strangers. I suspect any data gathered has a bias in it as women are making the choice based on conditions as they are not as they should be.

Posted by David Parrett | March 17, 2008 2:24 PM

"In reality, it's rarely a choice"

Explain C.O.Y.O.T.E.

http://en.wikipedia.org/wiki/COYOTE

Posted by Richard Steven Hack | March 17, 2008 6:51 PM

Despite ostensibly (almost ostentatious) good intentions, Kristof has been really, really bad on this topic.

Indeed, his last two columns have been indignant, but incredibly sloppy. Among other amorphous feelings and thoughts floating round his cluttered impassioned mind, there's clearly one idea he desperately wants to believe: if we just go after the johns everything will be okay. But his reasoning is dreadful.

His use of the worst examples from Russia and Eastern Europe is at best really dubious, at worst ugly and misleading. He actually had a bit one column back along the lines of "If you want to rape thirteen-year-old girls you'll favor legalization along the lines of the Western European country that does." An obscene image in the service of spurious argument.

Pretty much everyone agrees that steps should be taken to address international sex trafficking. Beyond that things get complicated.

As with the drug war verse legalization there probably is no good answer.

Now in his latest column he addresses street prostitutes in the U.S.

But Kristof keeps looking for a reassuring liberal talking-point or cliche to fall back on. Something he understands that will get him through all the ugliness of thinking about rape and pimps and exploitation. One column back it was "Go after the men." This time it's "The media makes a big deal out of middle-class white girls who are abducted or missing, but what about all the poor black girls?"

The first point simply isn't valid. The police do go after johns. Ask Hugh Grant. In Chicago they even post their pics on the internet. (Kristof should read his own newspaper, which has covered this.) In addition many European sex workers have evidently said that simply making the act of buying their favors illegal actually makes for a more dangerous climate.

His second/latest point is valid, but doesn't really get us anywhere.

Hey, I'm a liberal too. But as much as I'd like to fall back on a rote point about gender (go after the guys) or race (the media only cares about missing blondes) it's of little use here.

Good guy. Good intentions. But two horrendous columns.

Matt says Kristof should "look for practical solutions." I would disagree.

Even if there are practical solutions (I have real doubts about the word "solutions" here, but, okay, I'm willing to accept it as subsitute for "the best possible answers") to be found, Kristof has shown he's not going to be of any help in finding them.

That said, if Kristof can't get any further than the obvious point that sex trafficking is an evil horror . . . well, then he should just focus on that horrific issue and the agencies and international organizations that struggle to address it. He'd be quite good on that. And he'd be doing a real service as an advocate. Right now -- on this issue at least -- he's worthless as a thinker. I doubt that's going to change.

Posted by James Worthy | March 18, 2008 3:02 AM