Pride-Swallowing Spitzer Stumbles On The Case for Legalizing Prostitution

Eliot Spitzer built his political career as a moral scold, parleying self-righteous prosecutions of financial malfeasance and prostitution into the governorship of New York. Now his career is over, thanks to a double-whammy of acquiring the services of prostitutes and paying for them with campaign funds (thereby extending the meaning of 'double-entry book-keeping' into unplowed fields).

So some good has already come of Spitzer's spectacular wipeout, what you might call poetic justice as fairness. More good may still come if we take the opportunity Spitzer has provided to rethink the moral and legal rationales underlying the criminalization of a widespread, victimless consensual behavior among adults.

There is a kind of first-principles argument for keeping prostitution illegal, which, like a common argument for banning pornography, manages to unite a certain brand of feminism with conservative religious prudery. The idea is that the exchange of sex for money is degrading to women, and that any kind of government sanctioning of that exchange would amount to an endorsement of the degradation of women. The difference between the prohibitionist feminist view and the religious conservative view is that the former locates the cause of degradation in the power structures surrounding prostitution, while the latter locates it in the act of sex, but in the end, the two views come out the same for practical purposes.

It's not common to hear this position enunciated publicly (though Ross Douthat gives it a sporting try) since we generally shy away from notions of intrinsic right and wrong in public policy debates. But since the utilitarian case for prohibiting prostitution is so weak, there must be some kernel of the first-principles argument standing in the way of public acceptance of legalization. In any event, the case for keeping prostitution illegal because of its inherent harmfulness or immorality is blatantly question-begging, since the inherent wrong of exchanging sex for money is precisely what's at issue. As Will Wilkinson puts it, there is "no interesting intrinsic moral distinction between brick- and other forms of laying."

In feminist terms, the 'intrinsic harm' case for criminalizing sex work looks even worse, since the linchpin of that argument is that various social structures — particularly the differential ways in which society evaluates sexual experimentation among men and women — ensure that female sex workers are deprived of their self-worth and autonomy. But there is no more effective means of reinforcing such inequalities than telling men who sell their bodies to lay bricks that what they do is a productive trade, while telling women who sell their bodies to lay men that they deserve to be in prison.

Alternatively, there is a utilitarian case for prohibiting prostitution, resting on allegedly telling facts such as the American Journal of Epidemiology's finding that "Women engaged in prostitution face the most dangerous occupational environment in the United States." Which isn't all that surprising, given that sex workers are forced onto the black market, where they are at the mercy of pimps and mobsters, and even have a disincentive against seeking protection from law enforcement, since, e.g., filing a rape allegation would be tantamount to turning oneself in.

Both arguments for keeping prostitution illegal fail on their own merits. The first-principles argument fails because it's not an argument, but an assertion, and an unpersuasive one. The utilitarian argument fails because the facts don't support it, and because, in any case, there are precious few people who truly oppose legalizing prostitution on utilitarian grounds. (For those who claim otherwise, try this thought experiment: The facts on the ground have shifted to the point at which there is clearly no utilitarian calculus that justifies keeping prostitution illegal. Would you support legalization then?)

Why then is prostitution still illegal? Because the two arguments operate in a tangled tandem. Put pressure on one, and the prohibitionist will leap to the other. Put pressure on the other, and she'll leap back, repeating the process as necessary. Legalization won't come until we get past the unstated, unargued assumption that prostitution is for some reason icky, which rests on the idea that sex itself is icky, which, in turn, rests on ages of cultural discomfort with female sexuality.

Nonetheless, there is no good reason anyone should go to jail for paying for something totally natural and healthy, that would be perfectly legal to give away for free. Except, that is, for politicians like Spitzer, who have the power to change the law but instead allow their fellow citizens to rot away in prison for non-offenses that they themselves engage in. Spitzer deserves the maximum penalty.