Prostitution, victimization, immorality, and the law

Interestingly, there doesn’t seem to me to be much of a substantive difference between the argument for criminalizing prostitution that Ross Douthat develops here and the position that Melissa Farley and Victor Malarek espouse in the NY Times op-ed that he’s criticizing. Here’s the passage that Ross jumps on:

… most women in prostitution, including those working for escort services, have been sexually abused as children, studies show. Incest sets young women up for prostitution — by letting them know what they’re worth and what’s expected of them. Other forces that channel women into escort prostitution are economic hardship and racism.

He then responds:

All true – but the obvious pro-legalization rejoinder is that being sexually abused as a child, or being born poor and black in inner-city Baltimore, pushes people toward all kinds of life choices that we don’t choose to regulate. We don’t forbid women who were molested by their fathers from dating older men who treat them unkindly and use them for sex, and we don’t make it illegal for poor women to work unpleasant jobs cleaning houses or serving food at McDonalds. It only makes sense to ban prostitution if it’s in the same moral/legal category as incest itself, rather than being akin to the kind of run-of-the-mill exploitative relationship that incest might incline a woman (or man) toward later in life. Which is to say, laws against prostitution ultimately depend on the assumption that the state has an interest in preventing serious forms of self-abuse, and that renting out your body to satisfy another person’s sexual needs is a form of self-inflicted violence serious enough to merit legal sanction irrespective of why and how you decided to become a prostitute in the first place.

This seems to me to be true enough, but note the similarity between that last sentence and these ones, which conclude the Farley/Malarek piece:

Whether the woman is in a hotel room or on a side street in someone’s car, whether she’s trafficked from New York to Washington or from Mexico to Florida or from the city to the suburbs, the experience of being prostituted causes her immense psychological and physical harm [emphasis mine - JLS]. And it all starts with the buyer.

It’s not, in other words, just the circumstances that lead to prostitution that make it worth criminalizing, but the nature of the “profession” itself: it’s because of the “immense psychological and physical harm” to which prostitution gives rise that it deserves to be frowned upon, and perhaps even criminalized. This doesn’t seem to me to be all that different from saying, as Ross does, that the grounds for its illegality lie in the fact that prostitution is a kind of “self-abuse” or “self-inflicted violence”.

Noah Millman points out, though, that this too doesn’t seem to be a good enough reason to make it illegal, at least not on its own:

… there are lots of ways to abuse yourself, right? A steady diet of Krispy Kremes would do some serious abuse to your body (or, I should say, the body that is you – in this scheme, the body is not an owned thing that is yours). Not serious enough to warrant legal sanction? Well, gluttony is one of the seven deadlies, right up there with lust. And the medievals did have all sorts of laws regulating consumption. Are we going there? Or pick some other sex examples: I don’t believe Ross approves of legislation against sodomy, masturbation or adultery. But those are all behaviors that are traditionally understood to be “self-abusive” (indeed, what does “self-abuse” traditionally mean?), and the last of them (adultery) isn’t even arguably victimless. Why not ban them?

This seems fine so far as it goes. But it also seems to me that Ross really wasn’t making his point as strongly as he could have: it’s not the fact that prostitution is “a serious form of self-abuse” that gives us grounds for outlawing it, but the fact that it’s an especially serious form of, well, sin (or “immorality” or “wrongness”, if you like). And if you think, as I take it Ross does, that the straightforward seriousness of a sin can give us a reason, modulo a huge host of other considerations, to make it illegal, then this ought to be the kind of argument that rings true with you.

Let me make it clear: I am emphatically not saying that any behavior we deem to be immoral, whether seriously so or otherwise, ought to be criminalized. This was the point of my mentioning the “huge host of other considerations” that must come into play in such an inquiry. And it seems quite reasonable to claim, with Millman, that such things as the “power relations that predominate in the transaction in question” are going to be relevant to determining whether prostitution should or should not be illegal. But – and I think that this is the point Ross was after – these latter sorts of considerations aren’t going to be enough on their own to answer this question: for it doesn’t seem that they are sufficient to make out the difference between, say, paying a desperate homeless person to engorge himself with Krispy Kremes (or a desperate documentary filmmaker to eat nothing but McDonald’s for a month), and paying such an individual for a kidney or a blowjob. This latter distinction is the one Ross was trying to articulate in saying that prostitution is a “serious form of self-abuse” as opposed to an instance of a “run-of-the-mill exploitative relationship”; the trouble, though, is that (unless one intends it in something like this sense) the notion of doing harm to oneself doesn’t have sufficient moral “thickness” to do the trick.

Filed under: government/law, morality