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Legalization of prostitution
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.
Posted by Tyler Cowen on March 13, 2008 at 02:12 PM in Law | Permalink
Comments
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.
Posted by: pawnking at Mar 13, 2008 2:52:36 PM
From the Cologne story:
Now an area of Longerich about the size of a football field has been fenced off for the purposes of prostitution. A gate allows clients in, and there are security cameras on site for the protection of the women working in the area. Customers can drive onto the site where the prostitutes are housed in small huts known as 'performance boxes.'
LOL, I wonder if "performance boxes" is as hilarious in the original German.
Posted by: Mitch at Mar 13, 2008 2:58:44 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.
Posted by: Neil Parker at Mar 13, 2008 2:59:07 PM
I don't understand how legalization could lead to an increase in sex-related crime, such as trafficking of underage girls? If anything, one would think it would lead to a decrease in demand for those services, due to legal alternatives. I would think it would also bring out more of the industry into the light, where truly immoral practices would be easier to spot and prosecute. Then there is how many law enforcement personnel would be freed up to go after real crimes.
The funniest part of that article is how Kristof thinks that countries are shying away from legalization because of concrete facts, and not because of cultural taboos or political wedging.
One thing Tyler touches on that I don't see mentioned often enough is that we can't say anything about how to react to externalities without some sort of ethical framework. To me, its not clear that the disgust prohibitionists have for prostitution should be valued any higher than the disgust that a racist has for his off-white neighbor.
Posted by: Grant at Mar 13, 2008 3:00:23 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.
Posted by: holmegm at Mar 13, 2008 3:01:45 PM
Hamsterdam for Prostitution. I thank Bunny Colvin.
Posted by: Joel W at Mar 13, 2008 3:03:33 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.
Posted by: AS at Mar 13, 2008 3:37:29 PM
Aside from the moral and policy questions, prostitution is often illegal as part of a market demand for regulation to benefit the rich and powerful john. A rich and powerful man seeking extramarital sex needs a partner with a strong incentive to keep the affair private. Prostitutes have a marginal incentive to stay quiet in jurisdictions where prostitution is illegal. Married politicians who frequent prostitutes are unlikely to give up that regulatory advantage.
An substitute to prostitutes is to find a married woman with a lot to lose with exposure of the affair. Maybe, that is not the most liquid market.
Posted by: Anon at Mar 13, 2008 3:59:48 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.
Posted by: michael e sullivan at Mar 13, 2008 4:02:26 PM
The downright, unequivocal evil is the forcing of women and children (and possibly some men) into prostitution. It seems to me that whatever different countries do to legalise or criminalise prostitution, they should all enact simple laws which entitle anyone coerced into prostitution to very substantial damages under civil law; damages which can be collected from anyone (e.g. the property owner of a brothel) who has aided or abetted the coerced prostitution. Lawyers on contingecy fees would do more to kill the trade in trafficking in people for prostitution than any array of official agencies has yet managed.
Posted by: David Heigham at Mar 13, 2008 4:13:04 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.
Posted by: Robert Scarth at Mar 13, 2008 4:22:40 PM
Over the millennia, religious institutions have infected people's minds with their so-called morals, which have resulted in little more than the degradation of women and thier rights. Herr Cowen correctly points out the absurdities in our current legal system. The progessive stance of some states gives us hope that we can evolve out of this culture of denial and fear of reality.
Posted by: Chairman Mao at Mar 13, 2008 4:28:58 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.
Posted by: Dan in EuroLand at Mar 13, 2008 4:42:22 PM
Posted by: Anon at Mar 13, 2008 3:59:48 PM
Interesting theory.
Also, michael e sullivan makes a very good point that as long as its illegal the prostitutes (who are certainly the ones being hurt most in the transaction, with the sometimes exception of the externalities on a wife but that is not the fault of transaction but of the cheating husband) are made powerless and lose all property and human rights.
There are 1000 reasons why decriminalization of sex and drugs (thankfully we have rock n roll) is beneficial.
Posted by: liberty at Mar 13, 2008 4:54:52 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.
Posted by: Alan Gunn at Mar 13, 2008 5:10:42 PM
It's worth reading a recent interview with the British criminologist Roger Matthews in The Guardian on this ('It's abuse and it's a life of hell'). [URL http://lifeandhealth.guardian.co.uk/women/story/0,,2260967,00.html].
He concludes - against his initial instincts - that the working conditions of prostitutes, including the levels of violence they are subjected to, are socially unacceptable (to society as a whole).
Posted by: Andrew Curry at Mar 13, 2008 5:11:50 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.
Posted by: 8 at Mar 13, 2008 5:22:11 PM
"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."
It's not really so absurd in context. It' a very limited exception allowed only on First Amendment grounds. The First Amendment right to provide pornography (when it has some artistic value etc., etc.) would be meaningless if the acts themselves were illegal. There's lots of otherwise illegal acts that are privileged because otherwise a First Amendment right would be implicated.
Keep in mind, however, that the First Amendment only protects sexual conduct if it has artistic merit and doesn't offend community standards (loosely stating the standard). If the sexual conduct and the filming was solely prurient (i.e., the filming was simply a facade to allow prostitution), arguably the First Amendment would not protect the conduct and the paid solication of sexual activity would simply be unprivileged prostitution. That case has never been addressed simply because there's no reason for anybody to bother with it; if you're willing to put that much effort into paying for sex, you're highly unlikely to get caught.
As somebody wading into this mess daily, I don't think decriminalization models that work in largely egalitarian societies are going to transfer well to the US. A highly regulated, legalization model may work, but there's no way on God's green earth that gets passed.
Posted by: L2P at Mar 13, 2008 5:48:02 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
Posted by: Orly Lobel at Mar 13, 2008 5:55:07 PM
Someone took the porn industry to court on prostitution charges; the reasoning which allowed porn is somewhat convoluted, as one would expect for a judge trying to save a multi-billion-dollar industry without striking down the threatening law completely. (Sorry, I'm too lazy to look it up right now.)
As with so many things, the devil is in the details - legalization can have a wide variety of effects depending on how it is regulated once legalized. It should be relatively easy to write a law which allowed police to remove streetwalkers completely, for example.
Legalization will lower the price at the low end, and probably decrease the violence; it may also decrease the incidence of STDs, even without mandatory medical checks, but it may not, depending if the price falls enough that prostitutes feel they have to perform unsafe sex to make "enough" money. Hopefully removing pimp's rakeoffs will mean that lower-end prostitutes will not lose income after the price falls, but it's hard to count on that unless prostitutes can trust the police to bust their pimps and keep them locked up.
Posted by: Anthony at Mar 13, 2008 6:37:39 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.
Posted by: Vorpal Blade at Mar 13, 2008 6:49:21 PM
"It should be relatively easy to write a law which allowed police to remove streetwalkers completely, for example."
Easy to write, impossible to enforce. Take Cal Penal Code 653.22. For only 4 hours of police work by two officers, you can get one conviction for loitering for prostitution. We can scoop up 4 for 647(b) in that much time.
And you drastically underestimate the loyalty prostitutes feel for their pimps. Unless you know what a bottom bitch is, you really shouldn't be talking about legalizing prostitution.
Posted by: L2P at Mar 13, 2008 6:55:24 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.
Posted by: L2P at Mar 13, 2008 6:59:46 PM
I'm wondering about the tax issues and how they've played into enforcement of prostitution laws. It seems to me that this is just big brother trying to get his share. What was enforcement like before income tax laws? I remember my grandmother (who was born ~ 1890) telling me about prostitutes and drug addicts in the big town of Superior WI -- seems that at that time ~ 1915, they just segregated them and let them be.
The law says cash is no good as payment for sexual favors, but it seems that payment-in-kind is OK as long as there's no contract (i.e., dating). Maybe the solution is for prostitutes to post their needs on a bulletin board ...
For a good time, pay my rent.
For a good time, dinner at the Palace Hotel.
For a good time, take me grocery shopping.
For a good time, a shopping spree at ...
It's all so silly. Once the government has eliminated cash and knows our every move, perhaps everyone who is the beneficiary of a seemingly harmless arrangement will have account for their "income". Might make a good story ...
Posted by: SheetWise at Mar 13, 2008 7:13:31 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."
Posted by: Vorpal Blade at Mar 13, 2008 7:15:57 PM
Screw all of you, and double-f**k those of you knashing your teeth over the plight of the prostitute. As a single man sitting here in the Philippines, enjoying the tropics, packing a lunch for a day at the beach, the LAST thing on my mind is "prostitution."
Why?
Because I can get laid as easily (and at the same price) as buying a pizza 24/7. My god-given birthright to scratch my ass OR have sex with a stranger for money is a given. Yet families thrive here. Women don't have the victim crap shoved down their throats. They don't develop an entitlement mentality because of their vaginas. You wonder why muslims hate us so much?
My sympathies to the MEN (only) who have had their lives ruined by your silly hypocritcal laws.
Posted by: Joe Penny at Mar 13, 2008 7:45:01 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.
Posted by: John Thacker at Mar 13, 2008 7:51:05 PM
I wonder what those who favour prohibition of prostitution are seeking to achieve. If they are seeking to prevent strict reciprocity being applied to sexual transactions, bans on prostitution certainly don't achieve that. As SheetWise suggests the prohibition of cash transactions does nothing to prevent barter. If they are seeking to prevent promiscuity, bans on prostitution certainly don't prevent that. The activities of enthusiastic amateurs remain legal. If they are seeking to reduce negative externalities associated with street prostitution that may be fair enough, but it does not require prohibition.
Perhaps we need to ask who benefits from the regulation. Prior to legalisation in Australia I think the police were probably the main beneficiaries.
Posted by: Winton Bates at Mar 13, 2008 8:13:07 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.
Posted by: Andrew at Mar 13, 2008 10:30:37 PM
Prostitution is legal throughout Europe. My impression is that the difference in the Netherlands is sex tourism (cf 8, above). This may be due to less regulation (esp zoning), but I think it more likely marketing or to complement drug tourism.
Posted by: Douglas Knight at Mar 13, 2008 10:36:51 PM
Why isn't Nevada the model? I don't remember hearing about child-slave prostitutes in Nevada.
Posted by: josh at Mar 14, 2008 7:50:33 AM
if legal, prostitution could help some women avoid poverty.
armed security/bouncers at the brothel.
Posted by: elbita at Mar 14, 2008 9:35:03 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.
Posted by: deu at Mar 14, 2008 11:03:17 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
Posted by: sm at Mar 14, 2008 11:18:42 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
Posted by: sm at Mar 14, 2008 11:19:33 AM
Most likely, sex trafficking in the Netherlands has nothing to do with legalized prostitution and everything to do with "progressive"
Dutch justice.
Posted by: Snorri Godhi at Mar 14, 2008 1:27:31 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.
Posted by: Rex Rhino at Mar 14, 2008 2:24:15 PM
Given the most recent numbers for both church attendance and (non-victimless) crime, I can't buy the theory that any significant number of people really oppose legalized prostitution because they fear God.
Most of the real opposition comes from two groups: women who want to keep the price of sex high so they can continue to command a life-changing price for it through marriage (in other words, they are a cartel), and men who are already married and don't want to be confronted with the fact that they made a major mistake.
Some writers cloak the cartel members' argument by saying that sex "should not be commodified". The plain fact is that it IS not only a commodity but a fungible. Analyze the argument that sex is not a commodity and you'll discover that it has already been well and truly disproven -- because it is identical, and so logically equivalent, to Karl Marx's argument that labor is not a commodity, which Mises refuted 50 years ago.
Posted by: John David Galt at Mar 20, 2008 12:44:41 AM
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?
Posted by: nikki at May 9, 2008 2:55:34 PM
