Legalization of prostitution

by on March 13, 2008 at 2:12 pm in Law | Permalink

Nicholas Kristof writes:

I changed my mind [on legalization] after looking at the experiences of other countries. The Netherlands formally adopted the legalization model in 2000, and there were modest public health benefits for the licensed prostitutes. But legalization nurtured a large sex industry and criminal gangs that trafficked underage girls, and so trafficking, violence and child prostitution flourished rather than dying out.

As a result, the Netherlands is now backtracking on its legalization model by closing some brothels, and other countries, like Bulgaria, are backing away from that approach.

A few points in response: first, "backtracking" could and should have been written as "still maintained as mostly legal throughout the country."  Second, Germany offers perhaps the best model for legalized prostitution; by the way, here is one odd description of the German practice in Cologne.  It’s not so offputting to make me favor a ban.  Third, we should institute drastically higher penalties and enforcement for traffickers in children and their customers.  Don’t blame adult transactions for that problem or think that is the best resource investment to stop it.  Fourth, legalized prostitution may not be "popular" because it doesn’t appeal to the median voter, least of all to the median female voter.  So the mere popularity of Swedish policy doesn’t make it a success; there is less consensual sex going on! 

We all debate the topic without bringing up the delicate question of the benefits (or lack thereof?) to the customers.  No one wants to say "I think guys should be able to [fill in the blank] more often and more easily," but that’s what at least half the story boils down to.  (The other half is the possibility of female empowerment, etc.)  Such a framing maybe sounds bad to you, but that’s a feeling we need to come to terms with and indeed question. 

I see the costs and benefits of legalization as murky.  Should government attempt to steer women away from the psychological tendencies implanted in them by child abuse?  Indeed, should such steering stop at their choices to become prostitutes?  When doing our cost-benefit analysis, should we count the preferences of the man sitting quietly at home or the preferences of the man as he approaches the end of the act?  How should we count the preferences — if at all — of the bluenoses who don’t like the whole idea of legalization?  After all, there are lots of them and they just don’t want legal prostitution.  These are difficult questions.

When push comes to shove it is fundamentally a moral question and that for me means legalization or at least decriminalization.  Ultimately you are threatening to jail or even shoot someone (should he or she try to leave the jail) because of a particular interpretation you have placed on their consensual sexual acts.  I have to say "no way" to that one.  Is barter a problem too?  Andrew Sullivan pointed out that it is legal to pay two people to have sex and film them and sell the film; it just isn’t legal to pay two people to have sex and simply watch them.  That’s what I call absurd.

pawnking March 13, 2008 at 2:52 pm

Topics like these are why conservatives are not libertarians. As for your arguements, you can always find one extreme (in this case, pornography which is barely legal) to justify another (prostitution) which is not legal. Hard cases make for bad law.

Neil Parker March 13, 2008 at 2:59 pm

That anonymous blogger was Andrew Sullivan.

(sorry if I’m not supposed to link), but here’s the follow-up to that point you raised
http://andrewsullivan.theatlantic.com/the_daily_dish/2008/03/a-question-ab-1.html

He had a follow-up on his blog from a lawyer that the reason one is legal and the other is is because those getting paid and filmed are working and theoretically not doing so exclusively for joy or sexual gratification, nor is the person paying them.

Of course the omnipresent “POV” series seems to destroy this argument.

holmegm March 13, 2008 at 3:01 pm

It’s not so offputting to make me favor a ban. Third, we should institute drastically higher penalties and enforcement for traffickers in children and their customers. Don’t blame adult transactions for that problem or think that is the best resource investment to stop it.

Well, that was the theory, wasn’t it – that it could be all clean and nice once it was legalized? It seems kind of simplistic to just repeat it when we see that it hasn’t worked out that way.

We all debate the topic without bringing up the delicate question of the benefits (or lack thereof?) to the customers. No one wants to say “I think guys should be able to [fill in the blank] more often and more easily,” but that’s what at least half the story boils down to.

Yes, clearly recent social history shows that what we need is more impersonalization of sex and less monogamy ;)

Ultimately you are threatening to jail or even shoot someone (should he or she try to leave the jail) because of a particular interpretation you have placed on their consensual sexual acts.

But we do do this, and we will continue to do so, no matter who wins these debates.

The obvious example is a legally established age of consent. But it you are going to regulate sex at all – like, say, by regulating prostitution – then you are stating your willingness to jail and if need be shoot someone based on your interpretation of their sexual acts. That’s how law works.

AS March 13, 2008 at 3:37 pm

>>LOL, I wonder if “performance boxes” is as hilarious in the original German.<<
They are dubbed “Verrichtungsboxen”, which translates more closely as “carrying out” or “execution” boxes if you ask me. The dictionary gives “performance” though.
No less clumsy though as an attempt to give it an innocuous name.

michael e sullivan March 13, 2008 at 4:02 pm

I favor legalization. The only victims of prostitution (unless you count nuisance issues which should be handled by zoning ordinances or property claims) are the prostitutes themselves. Yes most of them are or were sexually abused, and yes, huge numbers of them are abused/coerced by pimps and traffickers into doing what they do.

But the primary reason that coercion *works* is that it has the force of law behind it. If the plain act of paying for sex were not illegal and treated like any other business transaction, then prostitutes who were beaten by pimps or coerced into acts not of their choosing by johns or pimps would have the very same legal recourse that I would have if my employer or a client locked me in a room with a gun to my head and forced me to color separate images against my will.

But if I were to work for a pimp, or an illegal gambling operation or a drug dealer, then my ability to get justice would be severely curtailed by the fact that the second I go to the police, it’s *my* butt that will land in jail.

If you want to stop people from turning underage abused women and boys into slave labor, legalize the consensual activity and crack down on the slavers. Stop being the pimps’ enforcement army. This is what we’re doing by criminalizing prostitution (and drug use and every other victimless crime): turning our police forces into thugs.

Robert Scarth March 13, 2008 at 4:22 pm

“the reason one is legal and the other is is because those getting paid and filmed are working and theoretically not doing so exclusively for joy or sexual gratification, nor is the person paying them.”

That is Calvinism taken to its logical extreme.

holmegm – “But we do do this, and we will continue to do so, no matter who wins these debates…”

But surely what we want is for these lines to be drawn with some sort of rational basis and in a consistent manner. The laws regulating sexuality are neither rational nor consistent. Banning sex with minors is reasonable, as they are neither physically nor emotionally mature, but banning sex between consenting adults because the sex is being explicitly exchanged for money, and the sex is not being filmed for commercial sale is neither rational nor consistent. Its as if theft was considered ok if you gave the proceeds to charity, or murder was ok so long as you were filming the act with a view to selling the DVD.

Murder and theft are wrong and should remain illegal. Sex between consenting adults is not wrong and is still not wrong even if one party pays another for the sex.

Dan in EuroLand March 13, 2008 at 4:42 pm

Because of all the myriad cultural and country specific institutional forces at play, wouldn’t a more apt comparison be between Nevada and other US states? I have a hard time believing that more Bunny Ranches would increase underage trafficking, although it could introduce some price competition (for efficiency reasons of course.) This self-described “ho-fessional” (video is safe), at 26, claims to make ~500k per annum.

Alan Gunn March 13, 2008 at 5:10 pm

“Ultimately you are threatening to jail or even shoot someone (should he or she try to leave the jail) because of a particular interpretation you have placed on their consensual sexual acts.”

Mostly they just pay fines, I think. Which you economists are free to think of as a [Pigovian?] tax, perhaps.

8 March 13, 2008 at 5:22 pm

One thing to consider is the type of people involved. Notice that in many cases of legalization, it’s moved to the fringes of society. Even if they don’t want to jail potheads, hookers and johns, many people still prefer not to have them in their neighborhood. They might be there hiding in their homes today, but that’s the point. The behavior is removed from sight.

IIRC, one of the reasons the prostitution and drug legalization lost supporters in Amsterdam was because of the kind of people it brought to the city.

Orly Lobel March 13, 2008 at 5:55 pm

i posted about some of this a couple of days ago. i think it is clear that more empirics and getting the facts right is required. but the idea of brining in bigger guns for some violations, like underage prostitutes and trafficking, after legalizing the parts that we think are not more problematic than many other forms of human labor, is a sound one from a regulatory perspective:
http://prawfsblawg.blogs.com/prawfsblawg/2008/03/legalizing-pros.html#trackback

Vorpal Blade March 13, 2008 at 6:49 pm

Kristof isn’t so smart. He lauds Spitzer for fomenting a revision to New York law (based, according to Kristof on a similar revision to Swedish law) that makes it criminal to buy sex but lawful to sell it. Among other bad features of the new law, it encourages blackmail. Anyone willing to confess him- or herself a prostitute (facing only social stigma, not legal jeopardy) may accuse someone else (truthfully or otherwise) of paying him/her for sex and get him (rarely her) prosecuted. Even if the accusation is false, if the circumstances make it halfway plausible (e.g., alleged customer actually had non-commercial sexual encounter with accuser, or even just rode up an elevator with him/her) the accused john will be in deep falafel.

L2P March 13, 2008 at 6:59 pm

“Even if the accusation is false, if the circumstances make it halfway plausible (e.g., alleged customer actually had non-commercial sexual encounter with accuser, or even just rode up an elevator with him/her) the accused john will be in deep falafel.”

I could do that now. I could accuse you, right now, of offering me $100 to give you a blow job. I haven’t committed a crime – you have.

Vorpal Blade March 13, 2008 at 7:15 pm

L2P, you are quite right. I somehow left out the key point: if there really is an act of prostitution, the prostitute may extort extra payment from the john by threatening to turn him in. That threat would be idle now, because the prostitute would have to turn herself in as well.*

*Of course, when johns assault prostitutes, even under the standard legal regime prostitutes who report such assaults are usually safe from prosecution on sex charges– police and prosecutors typically feel injured prostitutes have “suffered enough.”

John Thacker March 13, 2008 at 7:51 pm

Is barter a problem too?

Actually, there are other examples of items which may be traded but not sold. Take for example votes. No one doubts that a legislator may trade a vote on one bill for a vote on another, but actually paying for a vote directly is technically illegal. At the same time, there are all sorts of ways to try to get around that by “building a relationship” with the legislator.

It should come as no surprise that politicking and prostitution are similar, though.

Andrew March 13, 2008 at 10:30 pm

You can never argue that it is a matter of an interpretation of morals. You will never find a society where adultery is considered benign (If you do, let me know). It is more of a debate of how far the government should go in implementing morality in the law.

josh March 14, 2008 at 7:50 am

Why isn’t Nevada the model? I don’t remember hearing about child-slave prostitutes in Nevada.

deu March 14, 2008 at 11:03 am

Dating is prostitution. Instead of the direct transaction of money, men barter. Dinner equals soft kissing. Dinner and flowers equals rubbing. Dinner and drinks equals sex. Unless you’re married and then sex is all about the direct transaction of money.

sm March 14, 2008 at 11:19 am

and where do male prostitutes go to for help? what pyschological explanations, laws, legalisation, performances houses, empowerment schemes does the sundry hold out for them

Rex Rhino March 14, 2008 at 2:24 pm

Current legalization of prostitution doesn’t eliminate the black market, because with all the restrictions put on legal prostitution (it can only be done in certain areas, at certain times, and there are a limited number of licences, huge taxes and regulatory costs, etc.), there isn’t a large enough supply of legal prostitution to meet demand.

Perhaps we need to ask who benefits from the regulation. Prior to legalisation in Australia I think the police were probably the main beneficiaries.

Those who favor authoritarianism (either the religious or the social democratic kind) see social controls like these as an end to themselves. Banning prostitution isn’t a way to lower crime, or protect women, or whatever – Banning prostitution is designed to *BAN PROSTITUTION*! Stop thinking like an economist on this issue, and start thinking like an anthropologist.

nikki May 9, 2008 at 2:55 pm

im doing a debate project on the legalization of prostitution and im for it what do u think will help me get a good grade?

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kyle May 14, 2009 at 8:53 pm

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