The Volokh Conspiracy

The respondents should have asked Justice Clinton to recuse.

This is just the case to herald a revival of the contracts clause.

Bad,

If that's supposed to be a reference to Justice Scalia in Hudson v. Michigan, isn't it based on a misreading of his opinion? I realize that comical misreadings of Justice Scalia's opinions are de rigeur, but I'm curious if this is what you had in mind, and if so why.

And the government could tax it.

The government does tax it. It's just that individual income taxation is largely on a self-reporting basis, with imperfect enforcement mechanisms.

theobromophile: that's probably the best answer to my question that could be given. However, I think a lot of it relies on confusing cause and effect. Screwed up young women become prostitutes, rather than prostitution screws up young women.

Women who go into prostitution believe that it is their only option for escaping abusive home lives, or see it as the only means by which they can make money.

Many of them are, unfortunately, probably correct. They can't escape abusive homelives making $2/hr plus tips working as a waitress, but they can if they are able to make $100,000 a year as a prostitute. For many poor, uneducated young women, their bodies are the only assets they have. Sad, unfortunate, but true. If the choice comes down to forcing them to stay in abusive homes or letting them escape by earning a good living through prostitution, the prostitution may as well be legalized. Otherwise the women are put in an even more dangerous, harmful situation.

Would it not be far better to remove children from abusive homes and to educate young women, rather than allow them to sell their bodies (and their souls) for money?

That sounds good, but how? Keep in mind we're talking about young women who are at least the age of consent, typically 17 or 18, so we're not talking about calling in social workers and child protective services. Just to be clear, I'm certainly against child sex trafficking and any form of child abuse.

Most of the prostitutes on that HBO show about the bunny ranch in Nevada (forget the name of it) seem pretty happy and stable, though once there was a young woman who did it for a day and quit, feeling absolutely violated. It's certainly unfortunate if that girl were trapped in a horrible situation and had no choice but to feel violated every day in order to make ends meet. That being said, not everybody loves their job. Back in junior high school, when I sacked groceries over the summer, I felt violated every now and then when some old geezer would bitch at me for putting his box of cereal in the same bag as his box of laundry detergent, accusing me of trying to poison him. No, no, no, I'm not equating that experience with taking it up the ass by a 300 pound smelly, hairy pervert. Just saying, if jobs were fun and enjoyable, you'd pay to do them, not get paid to do them.

Your arguments are basically the same ones used in support of banning boxing. Poor kids have no choice but to be trapped in the poor inner city and remain poor and in drug-infested, crime-ridden neighborhoods their entire lives, or become boxers and get their heads pounded until they inevitably get brain damage - all for our primal entertainment. Most boxers come from bad homes and have mental issues (i.e. Mike Tyson). Still, boxing is legal though regulated.

"It would be a lot safer for everyone involved if it were were done legally, out in the open, as in some counties in Nevada."

Nick Kristof had a column on this point this week, in which he initially agreed with this statement, then rethought it in the light of empirical evidence from other countries.

http://www.nytimes.com/2008/03/13/opinion/13kristof.html

Food for thought. I have strong libertarian views as well, but this kind of thing really gives me pause. Like the very realistic "Hamsterdam" season of The Wire, in which there's an effective legalization of drugs. It does solve some problems, but basically creates a junkie ghetto zone . . . not pretty.

Could someone who believes (or understands &is sympathetic to the logic) that "moralistic" reasons have no place in law please clarify for me what makes a reason moralistic? Do you (for legal purposes) make a distinction between moralism and morality? Are laws supposed to be entirely non-normative supports of the principle of liberty (and if so, is it okay to justify liberty with moral reasoning)? Or is moralism nothing more than the fallacy that a thing’s being immortal is sufficient justification for its being illegal?

...but it's too bad for Spitzer that his convictions for embezzlement of campaign funds and money laundering were affirmed.

My quickie back-of-envelope run of the Sentencing Guidelines suggests he could go away for 27-33 months even without the Mann Act (assuming the accuracy of public reports that he siphoned off upwards of $80K for his hyjinks over time), so I guess it's fortunate for Spitzer that his cellmate "Spike" won't be charging him quite as much per hour as "Kristen" did. <8~O

I suppose if the woman could do it for a couple of years, making $200,000 per year, save most of her earnings, then get out of it, use the savings to get a good college education and launch herself into a "normal" life there's a lot to be said for that course of action if the alternative is remaining in an abusive environment. But if the woman had the mental discipline and sophistication for that approach, she probably would have other means for getting out of her situation as well. A very young, uneducated woman from a poor, abusive background just isn't in a position to see the choices and the consequences of those choices that a woman raised in an affluent, educated family can see.

and many women who go into prostitution had horrible childhoods, were sexually abused, and use it as a means to escape bad situations.

So its better to take away their means to escape such bad situations?

KeithK: Freedom means that by default, the right to do a specific thing is presumed. Only when society agrees that the exercise of a specific right (such as the right to kill people or the right to steal or the right to use drugs or the right to be/hire a prostitute or the right to free speech) would cause the collapse of ordered civilization or the violation of rights of others do we ban or curtail the exercise of that right (e.g. limit the right to kill to self-defense, limit the right to free speech by not allowing fraudulent commercial speech). "Life, Liberty and the Pursuit of Happiness" includes, by default, the right to prostitution. There is a presumption that prostitution is legal. There should have to be a compelling interest in order to rebut that presumption and thus ban or curtail it. Anything less is illegitimate government action... at least under the "BruceM Theory of Law and Presumption of Legality."

Thales: Thanks for the cite to Kristof's article. He makes an interesting argument, but I think a lot of the issues he discusses ultimately stem from the stigma of prostitution due to its illegality (even in places where it's quasi-legal).

Melissa Farley, a psychologist who has written extensively about the subject, says that girls typically become prostitutes at age 13 or 14.

Assuming that's true, then we're dealing with child rape, not prostitution. Is Farley talking world-wide (she must be)?

The mortality data for prostitutes is staggering. The American Journal of Epidemiology published a meticulous study finding that the “workplace homicide rate for prostitutes” is 51 times that of the next most dangerous occupation for women, working in a liquor store. The average age of death of the prostitutes in the study was 34.

“Women engaged in prostitution face the most dangerous occupational environment in the United States,” The Journal concluded.

But those data are concerning all prostitutes, the vast majority of which are operating under unlawful, "in the dark" circumstances. The average age of death of legal prostitutes in Nevada is most certainly NOT 34. Of course the homicide rate is high for prostitutes - it's high for anyone whose job is illegal The average age of death of drug dealers is pretty short, too. It's not fair to compare the lives of prostitutes in inner-city detroit with prostitutes operating legally in a controlled environment at the Bunny Ranch in Nevada. It's comparing rotten apples to fresh apples. Using the status quo of an illegal situation as evidence of the status quo of that situation when legalized is circular logic, boiling down to "it's bad because it's illegal and it's illegal because it's bad."

Morevover, however bad the human sex-slave trade is with legalized prostitution, it is most certainly worse when prostitution is illegal because it's more lucrative. The trade in human beings exists separately from, not as a result of, legalized prostitution.

At the end of the day, even if it's somehow true that a large percentage of legal prostitutes have horrible lives and live in horrible situations under miserable conditions, I do not believe that alone is valid justification for banning it. It all goes back to Lochner v. New York. Needless to say, I'm one who believes that Lochner was correctly decided, pithy Holmesian dissents notwithstanding.

I never use the word "sex work" because those words imply that it is legitimate work...

Dumb question of the day. What's wrong with that? The term "sex work," if I understand it correctly, was employed to de-stigmitise words like "whore" and "prostitute," in order to not make the woman look like a horrible person. It may also remove the moral overtones from the work, but the stigma and moral overtones are completely separate issues from the psychological dangers inherent in the work. In fact, I think that the transition from "prostitution" to "sex work" to "something besides sex work" is a very logical progression, from condemning the woman, to seeing her as a not-immoral person, to wanting to improve her situation.

Does anyone know the average take-home pay of prostitutes in Nevada? Last time I was in Vegas, I saw a lot of cards and ads for prostitutes, in the range of $40/hour. Quick back-of-the-envelope calculations get you from there to about $30k or $40k/year, depending on how much the brothel takes, whether or not she has to pay for her own health insurance (or can even get it, in that line of work), and how often she works (IIRC, prostitutes can only work 3 of every 4 weeks). From a totally pragmatic perspective, you can talk about this as a way for a woman to make a lot of money, or for her to get out of an abusive environment, but, for that salary, why not bag groceries or waitress? At least you won't want to kill yourself (literally) at the end of those jobs, and there's the possibility of moving up the food chain, albeit slowly.

I don't buy the argument that we ought to allow/encourage young women in abusive homes to escape the situation by selling their bodies. That's just sick. As if they haven't been abused and/or exploited enough, let's pile it on some more. Again, what's wrong with waiting tables? Ringing up groceries? Walking into a temp agency and doing data entry?

gattsuru, are you saying that sexual intercourse with a properly used condom can still result in the transference of HIV? By mentioning "industrial use" you are implying that the prostitute would use the same condom for each client. Condoms go through no more abuse during sex with a prostite than sex between two married, heterosexual Christians. Insofar as sex with a prostitute typically has a time limit (like a Spitzer $3000 per hour prostitute), while nonprostitutional sex does not, an argument can be made that condoms are less abused/roughened up during sex with a prostitute.


I don't buy the argument that we ought to allow/encourage young women in abusive homes to escape the situation by selling their bodies.

theobromophile, society not banning certain behavior is not the same as society encouraging said behavior. I don't understand why so few people are capable of understanding this. Legalizing ("no longer banning" is the way I'd prefer to say it) prostitution is not the same as encouraging people to be prostitutes.

Why does nobody give a rat's ass about the poor male prostitutes? What about the sad, abused gigolo? I see a huge double standard here.

Legalization of prostitution... Talk about a tough topic to figure out how I feel. There's days where I think the Swedish approach is clearly the way to go, there's days where I think it should be flat-out legal. There's days where I believe the token payment involved as making hiring a prostitute as being little less immoral than raping her. And there's days where I'm absolutely certain that if I lived in Nevada, or if the state I live in became like Nevada with regards to prostitution, I would be a regular at my nearest brothel.

Can't think of a harder issue to figure out what I believe about it.

heobromophile wrote at 3.14.2008 8:42pm:

[quoting Melissa Farley] I never use the word "sex work" because those words imply that it is legitimate work...

Dumb question of the day. What's wrong with that?

Because Farley claims to be objectively gathering and analyzing data about women who work as prostitutes, strippers, porn actresses and the like. Her allegedly scientific research always manages to conclude that prostitution, even when legal, is somehow not "legitimate". Therefore her statement presumes her conclusions. Even more particularly, it demonstrates the intensity of the prejudice with which she approaches her research.

She, and any other researcher, is entitled to her opinions, but not her own facts.

She also has zero credibility among women who have actually engaged in sex work, such as Carol Leigh (who coined the term), Norma Jean Almodovar, Margo St. James, and Annie Sprinkle (caution: link Not Work Safe), to name a few of the more outspoken.

Steve2, the way I see it, prostitution is like gambling. It's unlawful for no valid reason. Some religious people declared it to be immoral a long time ago, cited a few cases of irresonsible people who harmed themselves as a result of their behavior, and then bitched, whined, and threatened everyone else until they got a law passed criminalizing the behavior they didn't like for moral reasons.

Sure, some people can be compulsive gamblers, but can anyone really say legalized gambling has not been a net benefit for Nevada?

gattsuru, are you saying that sexual intercourse with a properly used condom can still result in the transference of HIV? By mentioning "industrial use" you are implying that the prostitute would use the same condom for each client. Condoms go through no more abuse during sex with a prostite than sex between two married, heterosexual Christians.

Yes, sexual intercourse with a properly used condom can still result in the transference of HIV.

For the love of scientific discourse, only a portion of each batch of the damn things are only air burst (EU) and water burst (US) tested with an acceptable batch having up to 0.5% failures, and they rather obviously don't cover all of the genitals. You expect them to do miracles?

I'm not claiming that there's a difference in level of stress a condom faces -- I really don't want to pretend the information out there is complete enough to model that particular concern -- but I doubt the risks are just that of stress (especially since both sex workers and normal couplings are supposed to replace the condom after each 'event') when you take a known failure rate and add in the long wait before the relevant testing will show up a positive, you've got the chance to expose a hell of a lot more people than any single monogamous couple, and even a good portion of highly open couples aren't going to match up to the number of exposed partners that an infected sex worker could 'cook up'.

gattsuru: all that "condoms don't work" crap is just Christian anti-sex propaganda, particularly if it was promulgated by the Bush administration.

Even if condoms don't work, clearly people assume the risk of STDs when they engage in illegal prostitution. Prostitutes assume the risk of STDs as an on the job injury, but the best they can do is wear the proper safety gear - condoms. And as far as safety gear goes for on-the-job safety, condoms are as reliable as it gets. Much moreso than hardhats or lanyards.

I have strong libertarian views as well, but this kind of thing really gives me pause.

No, if you had strong libertarian views, you would know instantly that the government has no role in saving people from the consequences of their own decisions.

Take the extreme example: suicide. You think being a prostitute is dangerous? Try jumping off a building. But anyone with strong libertarian views supports the right of the individual to jump off a building (with the consent of the building owner, of course).

The research cited is all likelihood arrant crap, but crap or gospel-truth, is utterly irrelevant.

I cant understand this for the life of me. Prostitution and suicide? I have a difficult time thinking of two things my libertarian views provide stronger support for. I greatly believe in the right to use drugs (yes, KeithK, the right, and Im not looking to the Constitution for what fundamental rights should be), but I have much greater pause over legalizing drugs.

all that "condoms don't work" crap is just Christian anti-sex propaganda, particularly if it was promulgated by the Bush administration.

Even if condoms don't work,

Please re-read what I posted. I've NEVER claimed condoms don't work. I've specifically posted the exact opposite : they've shown themselves to reduce rates of pregnancy and HIV transmission by at least 80%, if not 90%.

I'll ignore the idiocy of calling a peer-reviewed, uncontested study that you've never bothered to read or pay attention to false simply because it might have been a few degrees of separation from someone you don't like.

Gr... hit the post button too soon.

While an individual coupling is very unlikely to result in seroconversion, prostitution's very nature makes it rather difficult to really check things as individual couplings. Using the Nevada standard of an HIV test a month could result in periods between three weeks (lowest end on generating the antibodies necessary for HIV testing) to seven weeks to three months (99% accurate testing) to seven months (accuracy at that of the relevant tests).

A given genital-genital sex act with proper condom use would only have a chance of infection on the order of 0.001%~0.0005% for the male involved, as opposed to the unprotected 0.005%. That sounds remarkably safe...

But we're talking individuals who are paying the bills by have penetrative sex with other people. While the risks for each of the johns aren't major compared to walking across the street, the odds of someone getting infected is not as minor. Even if we're lucky on getting those tests done quickly and the individual produces antibodies relatively fast, three weeks is enough time for a lot of individual sex acts.

The chances of an infection are still going to be less than unprotected sex, especially if we're assuming that all unlawful prostitution is going to be unwrapped and all lawful prostitution would be. Maybe it still will be when you adjust for increased use of prostitutes. But that the public health viewpoint isn't cut and dry : you actually do have to look at the math and the messy parts and figure out how many fewer cases of STI transmission legal and regulated prostitution will result in, while paying attention to the increased number of sexual acts due to legalization.

"While the risks for each of the johns aren't major compared to walking across the street, the odds of someone getting infected is not as minor."

While the risks for any particular person who crosses the street aren't major, the odds of someone getting hit by a car is not as minor?

What's the take away message here?

strategichamlet
It's well-recognized that the government defends against different threats at significantly different levels of acceptable risk. I hate to state the obvious, but abstaining from the use of prostitutes is not going to cause the same level of issues as abstaining from the use of streets.

BruceM

How about if we make the brothel or solo prostitution practitioner liable for infecting customers with STDs. Have an unwaivable implied warranty of cleanliness with respect to all prostitutes. Prostitutes should have to have licenses to practice prostitution, and a licensing requirement is that the prostitute carries liability insurance for infecting others with STDs.

Well, for starters, you'd probably kill the 'interest' of nearly every male libertarian that followed the subject.

I don't think insurance would really have a significant and meaningful result from a public health standpoint. It'd be a good idea, since the alternative would probably result in a brothel being torn to ribbons and every item of value within the business given to the first individual who was infected, so I'm not sure a statutory requirement is really that important.

That individual remains infected either way, though, and that's what the public health viewpoint focuses on.

From a libertarian viewpoint, this doesn't really matter. Everyone involved knew (or should have known) the risks and thought they were worthwhile. But the question wasn't to come up with a libertarian reason for the laws, only a reason that wasn't moralistic.

If I were an attractive young woman given the choice of making $40 a day waiting tables or $3000+ a night being a prostitute, I'd proudly choose the latter.

Of course, I do have to note that if prostitution were widely legalized, the illegality premium would vanish and competition would increase, forcing prices down. But prices would not drop too considerably, certainly nowhere near as much as drug prices would drop if drugs were legalized. A beautiful 20 year old woman will always be able to ask for a lot of money to have sex with her, legal or not.

gattsuru: do you mean it's always anti-libertarian to license/regulate an industry? If so, i'm not sure I entirely agree. I guess at a very base level I do, but being pragmatic about prostitution, licensing would probably have to happen as a precondition of wide legalization.

Can anyone give me a non-moralistic reason for prohibiting prostitution in the first place?

I don't want to be one.

And I don't want that to be my only alternative, because I lose my unemployment benefits for turning down a reasonable offer of employment.

(And men, don't assume that you can't lose them too.)

For many poor, uneducated young women, their bodies are the only assets they have. Sad, unfortunate, but true.

So let's make them put them to use.

Do you have sympathy for people to claim that a job scrubbing toilets is beneath their dignity? Me, I wonder what their home bathrooms are like.

There's an urban legend about German women who lost their unemployment benefits for refusing to be whores. I'd like it to stay an urban legend.