Keeping prostitution illegal

In Reason Magazine, Cathy Young wrote a very good post, libertarian in tone, challenging the US’s continued commitment to keeping prostitution illegal. She points out that the US is one of the last Western nations to keep prostitution completely illegal (ignoring Nevada and Rhode Island), and that there are a lot of good reasons to legalize it. First, it is (or, at least, it can be) a marketplace transaction like any other, with a willing buyer and a willing seller. The only difference is that the service sold is sex, as opposed to, say, legal services or plumbing:

Yet prostitution is perhaps the ultimate victimless crime: a consensual transaction in which both parties are supposedly committing a crime, and the person most likely to be charged—the one selling sex—is also the one most likely to be viewed as the victim. (A bizarre inversion of this situation occurs in Sweden, where, as a result of feminist pressure to treat prostitutes as victims, it is now a crime to pay for sex but not to offer it for sale.) It is sometimes claimed that the true victims of prostitution are the johns’ wives. But surely women whose husbands are involved in noncommercial—and sometimes quite expensive—extramarital affairs are no less victimized.

Also, if you’re looking at downsides to keeping commercial sex illegal, there’s no doubt but that legalized prostitution results in a vastly lower rate of sexually transmitted diseases, as well as the potential for less corrupt law enforcement:

As with other victimless crimes, the criminalization of prostitution creates a vast breeding ground for corruption, hypocrisy, and morally dubious law enforcement tactics. Thus, open advertisement of escort services is widely tolerated under the flimsy pretext that clients are paying for companionship, “modeling,” “role play” and other non-sexual activities, and that when sex occurs it’s by mutual choice unrelated to any fees. Selective enforcement is the norm, as is entrapment. Anti-prostitution campaigns are also frequently accompanied by the Big Brother-ish practice of state-sponsored public shaming. Not to mention how black market constitution makes it more difficult to police the sex slave trade, where the prostitutes really are victims.

Good points all, and an honorable libertarian such as the Captain (whose post made me aware of Young’s article), doesn’t disagree with them on libertarian terms. However, as he explains in a post addressing Young’s argument, he is bothered by the notion of legalizing prostitution based on the notion the commercializing sex trivializes the sacred character of the human body:

If we don’t structure our society to protect the essential value of human beings, then what do we value? Everyone becomes a commodity in some form or another, if we participate in the selling of women for prostitution, even if the women themselves do the selling. If we accept that, then we accept the idea that humans have no more value than cattle and pork bellies. Perhaps even worse, we construct classes of people whose value comes from selling their bodies for the gratification of others, while other classes of people are so valuable on the basis of their lineage that we wouldn’t dare think of them in that manner. That eventually takes us back to the feudal system, where the serfs and the slaves got bought and sold for the pleasure and profit of their masters.

I admire the Captain’s spirit, but I think there’s another argument, less fragile and spiritual than one pinned to the human spirit, that justifies keeping prostitution illegal. Both Young and the Captain are doing little checks and balances: market versus individuality; disease versus exploitation, etc. I would propose a larger societal concern that outweighs all of these: America is a country that is still committed to the notion of marriage as an essential societal good. Legalizing prostitution devalues and, potentially, destroys that institution.

In many ways, the arch feminists have been right all along when they complain that marriage is merely legalized prostitution. Certainly, as marriage developed in times when women had limited earning power, one of the main things they brought to the wedding was the man’s right to unlimited sexual access to their bodies. In exchange, the man promised to provide these women with economic support and to acknowledge as his (with the hope that he did so truthfully) any children born from the woman’s body.

In other words, if one looks at it from the man’s point of view, marriage has long been a contract, similar to that with a prostitute, where she promises sex and he promises money. The difference is that, in marriage, it’s a lifetime commitment, not one for hours or minutes. That sounds pretty crude, and it is. In America, we’re blessed by the fact that we grace marriage with the invaluable intangibles of love, affection and loyalty. However, strip away these often Victorian constructs and you see that marriage developed as a commercial transaction, with the lucky woman bringing to the marriage marketplace parental funds, thereby sometimes enhancing her marital choices, and the unlucky woman bringing no more than her body.

In places that legalize prostitution, the market savvy man has infinitely less interest in the long-term contract that underlies every marriage. Thing of it from his point of view: In marriage, ongoing access to sex theoretically requires lifelong monogamy and monetary commitments; and in dating, ongoing access to sex requires, at minimum, a short term commitment to monogamy, as well as expenditures ranging from food and entertainment to housing. Purchased sex, however, is a remarkably simple transaction: give money, get sex.

And think how much better this whole short term commercialized transaction is if it takes place in an environment where you don’t have to worry about disease, arrests or social stigma. For many men, and I say this with no disrespect, it’s an ideal situation where they can have sex with a minimal economic outlay, and no long term commitments. If these same men eventually meet a woman with whom they wish to be monogamous for life, they still can, but marriage is no longer the only ticket to disease-free, stigma-free, guilt-free sex.

Ultimately, then, legalized prostitution discourages marriage. The US, though, still thinks marriage is a good thing and by keeping prostitution illegal makes sex within marriage, despite all the demands on him, a desirable commodity for the average man. This may be naive and Pollyanna-ish (I’m sure the Europeans think it is), but despite the upheavals of the past forty years, we still enshrine marriage as an important societal principle.

There’s no doubt, of course, that there are downsides to giving primacy to a principle. When the principle is marriage, elevating it by making prostitution illegal instantly creates all the problems that come when anything is illegal: people break laws, governments and police become corrupt as people try to circumvent the consequences of breaking these laws and, in the case of illegal sex, disease can be a problem.

The fact is, though, that all principles, once put into effect, carry downsides with them. There is no societal initiative that I can think of that doesn’t leave victims in its wake. In this regard, remember that in Germany, which has legalized prostitution, the down side to the legalizing principle is that the government can force women into the sex trade, something Germans last did during World War II.

At the end of the day, I don’t think I’m going too far afield in drawing a connection between legalized prostitution and a society’s diminished capacity for traditional marriage. Those same countries that have legalized prostitution have also seen significantly lowered marriage rates. It’s no secret that, in Europe, people are getting married with less and less frequency. Australia, which has legalized prostitution, has also seen significantly lower marriage rates.

I understand, of course, that it’s not just legalized prostitution alone that has chipped away at marriage. These same countries have packages of initiatives that seek to destroy the family as the primary unit and to replace it with the government. Just as men no longer need wives for sex, women no longer need men to help them shoulder the burden of parenting. The social welfare system in these states has ensured that men are redundant. The gay marriage kerfuffle (should they or shouldn’t they?) is only the most visible attack on traditional marriage. The real challenges occur when governments act so that no benefit accrues to people who are thinking about committing to marriage.

And so I would say the prostitution argument can be lifted up from minutiae about disease and crime and the human spirit and can be phrased thusly: If, as a society, we believe marriage is a paramount good that creates strong family units and prevents total dependence on government, prostitution should be illegal, despite the ills that flow from it. Alternatively, if we believe that marriage is an antiquated construct and that it is good and reasonable for the state to provide those benefits, both physical and economic, that once flowed from marriage and tight family units then, by all means, let’s make prostitution legal.

UPDATE: Over at CDR Salamander, Phibian notes another subtle weapon that’s being used in the war against traditional marriage. I’ll repeat here what I said in a comment to his post: “As it is, I believe marriage is a good thing for a healthy society and a good thing for individuals. Otherwise, there’s nothing but the State, and I think statism is a bad thing. All things that prevent the development of the nuclear family, whether giving men an incentive to avoid marriage, or giving women a reason either to avoid having children or avoid having a man attached to those children, are therefore, in my mind, bad things. ” In case you missed it, here’s the reason I fear statism.

UPDATE II:  A reader was kind enough to bring to my attention the fact that the German report story about the woman given the choice of prostitution or giving up unemployment benefits probably isn’t a story at all.  Instead, it’s a hypothetical.  That is, a couple of years ago, a German publication hypothesized that current laws could lead to such a result.  The fact that they could is significant, but so is the fact that, so far, they haven’t.