The Volokh Conspiracy - Right to Sexual Autonomy and Prostitution:

A question to those readers who (1) support, as a constitutional matter, the recognition of a right to sexual autonomy -- because they think the federal constitution protects it (see Lawrence v. Texas), because they think some state constitutions that expressly mention a right of privacy (Alaska, California, Florida, Hawaii, Montana) protect it, or because they think the constitution should be changed to protect it, but (2) don't believe this right should extend to a right to patronize prostitutes: Why do you think so?

I can think of some possible answers. For instance, (A) perhaps you might think that the right to sexual autonomy is inherently limited in scope to those behaviors that seem likely to lead to an emotional relationship, prostitution is quite unlikely to do so, and while casual noncommercial sex is often unlikely to do so, the law protects such sex because of the difficulty of distinguishing it from emotionally significant noncommercial sex. (I think that's probably the best reading of Lawrence.)

Or (B) you might think that the right to sexual autonomy presumptively covers all sexual conduct, including prostitution, but this presumption is rebutted (perhaps under some "restriction narrowly tailored to a compelling interest" analysis) by the government interest in preventing the harmful consequences of prostitution, such as preventing the spread of sexually transmitted diseases, or preventing various harms to the prostitutes themselves. (Though, if you think this, do you think the government should have to show, in proving such narrow tailoring, that banning prostitution actually fights sexually transmitted disease and harm to the prostitutes better than allowing prostitution and regulating it would?)

Or (C) you might think that rights are generally limited only to noncommercial behavior. But, if that's so, do you likewise think that it would be constitutional for the government to bar payments of money to authors, publishers, criminal lawyers, private school teachers, abortion providers, contraceptive vendors, and the like?

In any case, please let me know your views, whether they fall in these categories, or whether they're something else altogether. I'm not asking this to try to disprove the propriety of the sexual autonomy right, or to try to prove that it indeed includes the right to engage in prostitution. As I mentioned, I think Lawrence may plausibly read as distinguishing the two for constitutional purposes; I even so note, tangentially, in an article I'm writing (an article that's not primarily about sexual autonomy or prostitution). But I'd like to hear what others think.

	[Eugene Volokh, October 26, 2006 at 2:08pm] Trackbacks Right to Sexual Autonomy and Prostitution: A question to those readers who (1) support, as a constitutional matter, the recognition of a right to sexual autonomy -- because they think the federal constitution protects it (see Lawrence v. Texas), because they think some state constitutions that expressly mention a right of privacy (Alaska, California, Florida, Hawaii, Montana) protect it, or because they think the constitution should be changed to protect it, but (2) don't believe this right should extend to a right to patronize prostitutes: Why do you think so? I can think of some possible answers. For instance, (A) perhaps you might think that the right to sexual autonomy is inherently limited in scope to those behaviors that seem likely to lead to an emotional relationship, prostitution is quite unlikely to do so, and while casual noncommercial sex is often unlikely to do so, the law protects such sex because of the difficulty of distinguishing it from emotionally significant noncommercial sex. (I think that's probably the best reading of Lawrence.) Or (B) you might think that the right to sexual autonomy presumptively covers all sexual conduct, including prostitution, but this presumption is rebutted (perhaps under some "restriction narrowly tailored to a compelling interest" analysis) by the government interest in preventing the harmful consequences of prostitution, such as preventing the spread of sexually transmitted diseases, or preventing various harms to the prostitutes themselves. (Though, if you think this, do you think the government should have to show, in proving such narrow tailoring, that banning prostitution actually fights sexually transmitted disease and harm to the prostitutes better than allowing prostitution and regulating it would?) Or (C) you might think that rights are generally limited only to noncommercial behavior. But, if that's so, do you likewise think that it would be constitutional for the government to bar payments of money to authors, publishers, criminal lawyers, private school teachers, abortion providers, contraceptive vendors, and the like? In any case, please let me know your views, whether they fall in these categories, or whether they're something else altogether. I'm not asking this to try to disprove the propriety of the sexual autonomy right, or to try to prove that it indeed includes the right to engage in prostitution. As I mentioned, I think Lawrence may plausibly read as distinguishing the two for constitutional purposes; I even so note, tangentially, in an article I'm writing (an article that's not primarily about sexual autonomy or prostitution). But I'd like to hear what others think.