For Their Own Good: Friday The Thirteenth Reflections On Society's Treatment of Sex Workers

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124 Responses

  1. Lizard says:

    So, how much do I have to pay you to write something I can sincerely disagree with, at least in part, so I don't feel like one of those people in the audience of daytime talk shows going "Whoop whoop! You tell 'em! Yeah!" every time you post something? I may need to just read Clark's blogs from now on so I can feel less sycophantic.

  2. Chris says:

    I agree completely. A good discussion does need to fit, at the very minimum the broad scopes you've covered here.

    Also, you're missing some bolding for point three.

  3. Ken White says:

    In retrospect, in seeing how an allusion crept unconsciously into the last sentence, I must emphasize that this discussion should not involve beheading anybody.

  4. A Mark says:

    I'm no prostitution expert, but aren't "customers" and "johns" the same thing?

  5. Francis says:

    10% customers, 1% johns? Last I checked, customers and johns were synonymous. Maybe it should be 1% pimps?

    As the husband of a LA County public defender, I could not agree more strongly. Good post. Thanks.

  6. Ken White says:

    Yes, that was supposed to be pimps. Thanks.

  7. pillsy says:

    I generally weakly favor some sort of decriminalization or legalization of prostitution, because while the outcomes for sex workers in places with anti-prostitution laws are bad, my (limited) understanding is that experiments where it's been decriminalized haven't really led to improvement in the lives of actual sex workers, and have even made some things worse. I'd love to learn differently, because my general knee jerk reaction is that selling sex is something people should be allowed to do.

    That being said, I don't really think it's a simple matter of dictating what people do with their bodies–it's a restriction on what people can sell. I'm generally more comfortable with restrictions on commerce than on personal decisions about sex, though I'm not arbitrarily comfortable with them, and it's not necessarily something where you can draw a bright line separating one from the other.

    I see good arguments for it, but not slam-dunk ones. I do generally think that it's a reasonable trade-off to prohibit certain kinds of transactions or relationships because they're particularly likely to be abusive even though they aren't always abusive, but that's not a great justification if the prohibition doesn't actually curp abuse, or makes it worse.

    It's not a situation where I see a clear slam-dunk case one way or another.

  8. Mitch says:

    Ken,

    As I think you acknowledge (but I want to reinforce), there really are evil sex traffickers out there. Here is a link to a NY Daily News story about an organization in San Miguel de Tenancingo, Mexico that I prosecuted in 2003, but has continued to thrive to today. http://www.nydailynews.com/new-york/small-town-tenancingo-mexico-city-source-new-york-sex-slaves-article-1.1088866

    Three things about this group create problems for the points that you raise:

    1. They frequently prey upon children (12 -15 years old). In the US, we have determined that there is such a thing as "too young" to give consent for any sexual act. Are you questioning that there is such a thing as too young to give consent for paid sex work? Moreover, in my experience, virtually all of these children are fooled into believing that they are coming to the US to either (1) be domestic workers or (2) be engaged — and then brutalized, raped and demeaned into sex work.

    2. For those of the age to consent, they too often are fooled into believing that they are coming to the US to be domestic workers or wives, and then brutalized, raped and demeaned into sex work. Many of these women are incredibly poor and illiterate. They do not have work visas to be in the US and often have their passports and/or birth certificates confiscated by the traffickers. Do you believe that consent can be authentically obtained in such situations?

    3. The Tenancingo traffickers clearly have dominated the town for at least fifteen years. They have carte blanche from local law enforcement and control the economy. The prostituted women (and children) are often told that their families will suffer death or economic ostracism if they complain or escape. Once again, I believe that these circumstances make authentic consent impossible, even if a woman initially voluntarily entered the US to do sex work. Do you agree?

    So, my bottom line is that there are circumstances created by sex traffickers that make paternalism not only appropriate, but morally necessary.

  9. That Anonymous Coward says:

    The human mind falls into little traps, one of the horrible ones is assuming that everyone else's experience is the same as yours.

    Your 'nice' people feel that the only way they would be a sex worker is if someone forced them to, so this is true for everyone.
    While there are people forced into sex work, there are many more who freely make that decision.
    We don't like these shades of gray in the story, it is black and white.
    If your a sex worker, you were forced to do it.
    So we pass a law, and mission accomplished.
    When we discover its not working, we ratchet things up more and more in an endless fight to stomp it out.

    We've spent billions on a war on drugs, and have little to show for it except better cheaper highs with more dangers.
    We've not helped stop the spread of AIDS and other STD's because our morals made it illegal to educate sex workers and give them condoms.
    If the person isn't being forced to do the acts, who are they harming?
    If we could stifle those moral loudmouths, who often are caught being well short of moral privately themselves, and be honest it would get better.
    Moving sex work out of the shadows would improve things all around.
    Mandatory education and testing for STDs, its a public health issue.
    No secretive pimps, taking huge cuts when they can hang their shingle out openly.

    If someone wants to be a sex worker, it doesn't effect you if your not using the service… why do you feel you get a say about their choice?

    If 2 consenting adults agree to have sex for cash, I don't see a problem. The problems we see repeated in the media, seem to be the direct result trying to crush out sex work when its clear some people want it.

  10. Shane says:

    @Ken

    I'm not writing a post arguing the case for the decriminalization of prostitution today. That's a complex argument beyond the modest scope of this post

    How is it beyond the scope of this post? You already quoted C.S. Lewis, I think that quote pretty much sums it up. People that want others to fit in a world that they want to believe is true, want things to be complex so that nothing can be gained or understood.

    We may have moved beyond an era in which prostitution is outlawed primarily for moral reasons …

    I disagree, for the same reason that we still fight the drug war.

  11. Ryan says:

    On the even more nutty side, you could always do what Canada does and make prostitution legal, but make everything else around it – http://laws-lois.justice.gc.ca/eng/acts/C-46/page-108.html#h-70 s. 210-213 – illegal. Because that makes wonderful sense.

    Actually, there is a case winding its way to our Supreme Court that a number of prostitutes in Ontario mounted challenging those laws on Charter grounds that the current laws actually deprive sex workers of the rights by making their jobs inherently more dangerous than they otherwise would be.

    I hope they win.

  12. Shane says:

    @Ken

    I'm not writing a post arguing the case for the decriminalization of prostitution today. That's a complex argument beyond the modest scope of this post

    How is it beyond the scope of this post? You already quoted C.S. Lewis, I think that quote pretty much sums it up. People that want others to fit in a world that they want to believe is true, want things to be complex so that nothing can be gained or understood.

    We may have moved beyond an era in which prostitution is outlawed primarily for moral reasons …

    I disagree, for the same reason that we still fight the drug war.

  13. Shane says:

    @pillsy

    That being said, I don't really think it's a simple matter of dictating what people do with their bodies–it's a restriction on what people can sell

    So why is some selling better than others? People don't seem to be up in arms about football players "plying their trade".

    I'm generally more comfortable with restrictions on commerce than on personal decisions about sex,

    How are those two things unrelated?

    I see good arguments for it, but not slam-dunk ones.

    Laissez-nous faire.

  14. James Pollock says:

    "Yet they don't explain how that should deprive them of choice"
    Here's AN explanation, although I don't claim that anyone, including me, actually supports it.
    People who are drug addicts have impaired decision-making capabilities, as do some mental illnesses. It is occasionally deemed necessary that the the state should substitute the judgment of mentally-ill persons, to protect them from their own impaired judgment. Why is it not also allowable, then, for the state to substitute its decision-making for the addict's, to protect them from the effects of impaired judgment? (Note the utter lack of discussion of "when" or "for how long" topics, merely the binary choice of whether it is EVER appropriate for the state to substitute its decision-making for a citizen's.)

    "In what other circumstances — other than, say, the War on Drugs — will we tell someone that for their own good we will not let them do something with their bodies because we disapprove of it?"
    1. You can't get behind the wheel because you've been drinking.
    2. You can't have an abortion on demand post-viability.
    3. Siblings can't marry.
    4. Bestiality.
    5. Abuse of a corpse. (I'm thinking of the guy whose will specified that his skin be used to cover a book of poetry, and generalizing from there.)

    I think you missed a choice line of argument: Many of the complaints made about prostitution can be applied to marriage. Often, women are forced by circumstance to marry; a large number of women face violence if they engage in marriage; marriage limits the economic opportunities available to women, etc.

  15. pillsy says:

    Also, I agree with most of Ken's points, but I think the caution against using the bad results–like human trafficking–as justification for arbitrary state power is a little misaimed. I think there's a ton of room between banning prostitution and going into the full-on craziness that characterizes the War on Drugs of the War on Terror, and it doesn't seem to me that existing laws against prostitution have metastasized into the self-perpetuating and seemingly endless assault on civil liberties that have characterized those "Wars".

    I'm ambivalent about laws against prostitution, but I really would object strongly to taking an approach to enforcing anti-prostitution laws similar to the approach we've taken with the War on Drugs, where stopping the drug trade is a societal goal that's supposed to trump any other concerns.

  16. James Pollock says:

    "So, my bottom line is that there are circumstances created by sex traffickers that make paternalism not only appropriate, but morally necessary."
    Even if it's not working? Part of the reason human traffickers are able to do what they do is that the whole thing is underground. As long as the policy is to arrest prostitutes, you will find prostitutes unwilling to go to police to report, rape, brutalization, and assault. Where you have victims unwilling or unable to seek help for rape, brutalization, and assault, you will find plenty of rape, brutalization, and assault.

  17. Ken White says:

    Mitch:

    Are you questioning that there is such a thing as too young to give consent for paid sex work?

    No. Many things have age limits, so this element of criminalization does not represent sex workers being singled out.

    Once again, I believe that these circumstances make authentic consent impossible, even if a woman initially voluntarily entered the US to do sex work. Do you agree?

    But this is part of my point. On what basis do we disregard all statements of consent, because we can point to some circumstances for some people in which consent appears to be coerced?

  18. NI says:

    Mitch, what you are describing is kidnapping, rape, extortion, and other things that are, should be, and will continue to be crimes even if laws against prostitution are repealed.

    Here's my take on it: Once upon a time I was a 15 year old sex worker because it was the best option open to me at the time. It was a miserable existence but it was better than anything else I could realistically do at the time. Once I was able to put together better options for myself, I did, and left the business.

    The problem with policy being set by middle and upper class people is that sometimes they forget that there are large numbers of people out there for whom life is a bowl of shit, and not everyone has the same advantages they do. Like democracy, sometimes sex work is the worst possible alternative except for everything else. Yes, there are problems with it; several of the people I knew from the street ended up dead, badly hurt, or addicted to drugs. Sometimes life is rough and passing laws won't help.

  19. Shane says:

    @Mitch

    I agree bad people exist. More laws don't help. Smart people do help.

    all of these children are fooled into believing that they are coming to the US to either (1) be domestic workers or (2) be engaged — and then brutalized, raped and demeaned into sex work.

    This is fraud. We locked up Berny Madoff for this. This is in addition to the age of consent argument that you brought up earlier in the paragraph.

    2. For those of the age to consent, …

    See my previous comment.

    The prostituted women (and children) are often told that their families will suffer death or economic ostracism if they complain or escape.

    Blackmail is prosecutable.

    So, my bottom line is that there are circumstances created by sex traffickers that make paternalism not only appropriate, but morally necessary.

    But I believe their are laws that are already in place that can protect these women, without laws specifically targeting prostitution and implementation of Paternalism that will eventually spiral out of control into a police state.

    As a side note a more liberal immigration policy might work to help these people come here and stay permanently, thereby helping to break the criminals hold. What say you?

  20. pillsy says:

    @Shane:

    So why is some selling better than others?

    In this case, it's the danger that the transactions are likely to be coercive and exploitative. Like Ken says upthread, some former (and even current) sex workers will say that they're forced into it, while others say they don't.

    People don't seem to be up in arms about football players "plying their trade".

    To the extent that there are issues with exploitation and worker protection, people do worry about it. You don't have to go far to find people express such worries in the context of the brain injuries or the way the NCAA deals with student athletes.

  21. Shane says:

    And be protected by our laws.

  22. James Pollock says:

    "and it doesn't seem to me that existing laws against prostitution have metastasized into the self-perpetuating and seemingly endless assault on civil liberties that have characterized those "Wars"."

    I some ways, the war on prostitution is worse. For example, Portland, OR had "prostitution free zones" wherein a person who was arrested for prostitution could be given an exclusion order forbidding them to be in the "prostitution-free zone"… basically, all the public areas of a multi-block radius… for 90 days. If they had a job in the zone, or, heaven help them, LIVED in the zone, well… it was either 90 days' house arrest, or risk arrest for criminal trespassing in the zone whether caught doing anything prostitution-related or not.
    On second thought, that isn't worse, just "the same as" what we do in the war on drugs (we had drug exclusion zones, too) and the war on terror (the "no fly" list).

  23. Mitch says:

    @Ken

    On what basis do we disregard all statements of consent, because we can point to some circumstances for some people in which consent appears to be coerced?

    I did not express myself clearly. What I meant to say is that for people who have been coerced, or come from circumstances that give strong indicia of coercion (such as prostitutes who are working for pimps from Tenancingo), we should ignore outward manifestations of consent because they are so likely to be coerced.

    @Shane – While you are correct that fraud, blackmail and rape are crimes, part of effective law enforcement is looking for victims in the places that they are likely to be. In my experience, women who are brought to the US to work as prostitutes from Tenancingo (and some other notorious locations) are extremely likely to be victims of those crimes.

  24. Kara K says:

    A problem with specifically child trafficking is that not every child is the model we see presented as the typical trafficking victim: from a usually lower-middle class family, relatively "untroubled", and white. Many children come from poor, rundown areas, in homes that often include physical abuse and drug use. A pimp can offer such a child at least as bad as, sometimes, sadly, even a slightly better life than she (or he) already has. That, along with psychological abuse and hooking the child on drugs, ensures that the child stays a prostitute. So, we may "rescue" a child victim of trafficking, only to have that child reenter prostitution. Unless society can begin to target some of the underlying factors aiding these children's victimization, we're merely applying cosmetic fixes. Unfortunately, the underlying problems are not popular ones to target.

  25. Mitch says:

    I also clearly do no understand how to do blockquotes on this cite. I apologize.

  26. SIV says:

    How is "decriminalizing prostitution" a complex argument? Either you believe in liberty and autonomy or you don't.

  27. Shane says:

    @pillsy

    In this case, it's the danger that the transactions are likely to be coercive and exploitative.

    And who will determine if the transaction is coercive? When a person feels that transaction is coercive or exploitative then there are remedies in civil court as a dispute between two parties. If one party commits fraud or blackmail then the criminal process can step in and prosecute a crime.

    To the extent that there are issues with exploitation and worker protection, people do worry about it.

    Of course they do, people are human and for the most part they care that others are not being hurt if for nothing else their own fear that it might be them, but making laws to cover giant swaths of human activity because it MIGHT be bad is a poor way for a society to address bad things. Also stepping in when you are not asked to, is a lesson in humility, ask any cop about their experience in domestic abuse calls.

  28. rmv says:

    @pillsy

    Speak with real sex workers or read what they have to say. They've answered/rebutted many of your questions and concerns. One does not need to continue speculating about "prostituted women"

  29. pillsy says:

    @James Pollack:

    Huh. I knew about those kinds of exclusion zones in general, but some googling suggests the one in Portland was handled in a really terrible way. The other examples I'm aware of have a lot more due process protections (being conditions added to probation), and make exceptions for people who live in the zone.

  30. rmv says:

    @Everyone

    Speak with real sex workers or read what they have to say. They've answered/rebutted many of your questions and concerns. One does not need to continue speculating about "prostituted women"

  31. Erwin says:

    My understanding of the primary issue with reasonably well-done legalization is a sharp fall in prices with increased competition. That's understandable and expected. As, about half of the population is qualified, all else being equal – expecting to be paid much more than minimum wage is problematic.

    OTOH, if prostitution is decriminalized, I prefer outcomes in which it is significantly regulated – rather like the food or medical industry. So, yes, frequent testing, condoms, security guards, emergency call buttons, id to verify age, drug testing??, working hours, et cetera. I hope this does not qualify as trolling a libertarian blog. But, this is an area of industry where some regulation may be appropriate.

    Albeit, most of the 'good' would tend to flow to customers (easier access, fewer risks, reduction of government power), while the outcomes for prostitutes would be more mixed (less violence, but…
    …the internal debates moves from…'doing this to keep my family afloat'…to 'couldn't get a job at McDonalds, so I had to settle…kids are still starving'…or overwork to maintain comparable wages.)

    …from my perspective…I have little interest in creating violence-prone monopolies through legal prohibitions, so, yep, I'd favor decriminalization. However, I favor decriminalization in spite of the fact that I suspect it would, on average, negatively impact prostitutes. It is a greater good argument, not one made on behalf of sex workers.

    –Erwin

  32. Shane says:

    @Mitch

    … part of effective law enforcement is looking for victims in the places that they are likely to be.

    This frightens me beyond all measure. This opens the door to all kinds of prosecutorial, police abuse. This is the very thing that is what causes the your well meaning laws to absolutely blow up in everyone's faces. I will requote C.S. Lewis:

    “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”

    In my experience, women who are brought to the US to work as prostitutes from Tenancingo (and some other notorious locations) are extremely likely to be victims of those crimes.

    So please hammer the shit out of the fuck bags at Tenancingo using blackmail, fraud, rape laws, instead of being intellectually lazy (not directed at you personally) and creating a bunch of laws that will bear VERY large unintended consequences and absolutely thrash the liberty of everyone else.

  33. pillsy says:

    @rmv:

    Well, yes and no. There's a difference between saying, "I'm engaging in sex work by choice, not through coercion," and, "No one (or very few people) engages in sex work for any reason but choice."

  34. CJK Fossman says:

    @lizard

    I may need to just read Clark's blogs from now on so I can feel less sycophantic.

    +1

  35. James Pollock says:

    "expecting to be paid much more than minimum wage is problematic."

    But removing the pimp's 100% cut means that minimum wage is a raise.

  36. Irk says:

    There is an overlying assumption in several comments here that all prostitutes are women. This is just my gentle reminder that such is not the case.

    Ken, thanks for this post. I'd like to note that not all sex work is prostitution in the sense the media tends to sensationalize – for instance, phone sex workers are also sex workers.

  37. Erwin says:

    Heh. Now that I think about it… Longer-term, decriminalization will probably increase the opportunities for government busybodies.

    Once prostitutes are documented…just imagine requirements for further education…et cetera. (Which people will likely be willing to accept, once they realize they're working for 5 USD an hour.)

    –Erwin

  38. rmv says:

    @pillsy

    This is exactly what I'm talking about. You can either

    A) Interact with the Laura Agustíns, Maggie McNeils, Brooke Magnantis, Melissa Gira Grants, Tracy Quans, Norma Jean Almodovars, SWOPs, and NSWPs of the world

    or

    B) Let your feelz dominate the discussion.

  39. pillsy says:

    @Shane:

    And who will determine if the transaction is coercive? When a person feels that transaction is coercive or exploitative then there are remedies in civil court as a dispute between two parties. If one party commits fraud or blackmail then the criminal process can step in and prosecute a crime.

    People aren't always in a great position to make use of those legal protections, which is why–in general–I think it's appropriate to ban some kinds of transactions or relationships as being too likely to be exploitative. See prohibitions on teachers sleeping with students, or COs with inmates, or therapists with patients as common examples.

    It's not just limited to sex; there are, AIUI, legal prohibitions against indentured servitude.

    In the particular case of prostitution, it's not clear to me where the balance lies, but as a general principle I'm fine with it.

  40. Shane says:

    @Erwin

    We are on the same side of this issue, but their are some fundemental disagreements that I have with your approach.

    …. reasonably well-done legalization is a sharp fall in prices with increased competition

    This cost drop will keep many out that don't belong. Just like in the drug war if you take the risk percent out of the price things change quickly.

    I prefer outcomes in which it is significantly regulated – rather like the food or medical industry.

    Adding back in more regulations makes things more dangerous and corrupts the agents sent to regulate. This on food./ Regulations never stop and eventually drive legal activities into the black market, the place we are trying to avoid. A reputation based system fairs much better to weed out bad practices and people. Just ask Charles.

    However, I favor decriminalization in spite of the fact that I suspect it would, on average, negatively impact prostitutes.

    I disagree with this statement. Sweat shops may be seen as a bane for some, but the reason that they exist and thrive is because people are making value choices on personal issues. A simple this is better than that, is all that is necessary for someone to choose. And it doesn't have to be "rational" for someone to do it. I think it is wrong for others to dictate how you want to live your life, in as much as you are not "hurting" others.

  41. Steven H. says:

    @Mitch:

    "In my experience, women who are brought to the US to work as prostitutes from Tenancingo (and some other notorious locations) are extremely likely to be victims of those crimes."

    In which case, we should be looking to prosecute the people doing unto the "victims of those crimes", and NOT further victimizing those "victims" – arresting a woman for prostitution that she's been forced into is NOT justice, and won't improve her situation.

  42. James Pollock says:

    "A reputation based system fairs much better to weed out bad practices and people."
    A reputation-based system fares better ONLY if information systems are up to the task of getting information to the people who need it, when they need it, and if people are actually able to act on the information when they get it.
    Prostitutes have shared info about "bad johns" between themselves for, at best guess, ever… but don't currently have any way to effectively share information because they cannot do so openly. To a limited extent, johns cannot give reviews on prostitutes' performance, either. (I look forward to the newspapers' prostitution review columns.)
    Reputation-based regulation is best a corollary rather than a primary regulation mechanism, because reputation cannot set a hard minimum and you are prone to get a race-to-the-bottom.

  43. Shane says:

    @pillsy

    I think it's appropriate to ban some kinds of transactions or relationships as being too likely to be exploitative.

    Who will determine what is "too" exploitative. This is a dangerous place. Especially when a victim can easily ask for help. This is the wedge argument that allows intervention into other areas because they have become "too" exploitative.

    And honestly using this reasoning we shouldn't allow transactions in the stock market because that area is heavily exploitative. I can name many more along these same lines.

    In the particular case of prostitution, it's not clear to me where the balance lies, but as a general principle I'm fine with it.

    Cool let's get the laws repealed and haggle about the details after the fact :)

  44. rmv says:

    @James Pollock

    Actually, clients do post reviews on certain sites.

  45. James Pollock says:

    "Sweat shops may be seen as a bane for some, but the reason that they exist and thrive is because people are making value choices on personal issues."
    When the choices are not entirely free, they shouldn't be compared to choices that are. People "choose" sweatshop labor only when they have no other choice. The solution to sweatshop labor is to A) mandate sufficient safety, and B) provide meaningful choices. When enough workers have meaningful choices, the employers option changes.
    Sweatshops exist where the sweatshop owners have a monopoly power… they have the only jobs, therefore, they are able to extract more from the market than they would if the market were a free one.

  46. pillsy says:

    @Shane:

    Who will determine what is "too" exploitative.

    The same people who decide that fraud and blackmail aren't allowed in the first place, I'd say.

    Especially when a victim can easily ask for help. This is the wedge argument that allows intervention into other areas because they have become "too" exploitative.

    And honestly using this reasoning we shouldn't allow transactions in the stock market because that area is heavily exploitative.

    It's not like the stock market is entirely unregulated. There are already all sorts of prohibitions of what kinds of trades you can make. AIUI, one of the major rationales for prohibiting insider trading is that such trades are particularly likely to be fraudulent.

  47. James Pollock says:

    "Who will determine what is "too" exploitative. This is a dangerous place."
    We already have, and have always had, exclusion of some transactions as being too exploitative in common law. Some are proscriptive (the voidability of contracts with minors), while others are less universal and more case-by-case (voidability of contracts for unconscionability).
    It's not a matter of IF the line should be drawn, but WHERE it should be drawn.

  48. Shakerag says:

    Somewhat tangentially related, I found this column about an "escort" in Toronto to be an interesting read.

    http://www.mcsweeneys.net/columns/bianca-the-covert-toronto-escort-with-a-day-job

  49. rmv says:

    <blockquote cite="EVERY OTHER BIT OF SPECULATION AND GUESSING ABOUT WHAT A SOCIETY WITH DECRIMINALIZED SEX WORK WOULD BE LIKE">

    There are functional western democracies (Australia and New Zealand as just two examples) that have decriminalized sex work. In fact, the US is one of the few western democracies where the actual act of prostitution is criminalized. Looking at these as examples of what could happen is a lot better than just guessing.

  50. Mitch says:

    @Steven H:

    "In which case, we should be looking to prosecute the people doing unto the "victims of those crimes", and NOT further victimizing those "victims" – arresting a woman for prostitution that she's been forced into is NOT justice, and won't improve her situation."

    Agreed! This is why the USAO's have instituted policies of treating prostitutes in trafficking cases as victims, not criminals. It is also why there are "T Visas" for people (often, but not always, women and girls) who have been the victims of trafficking.

    My point – which I am trying to make clear – is my answer to @Ken's question "In what other circumstances — other than, say, the War on Drugs — will we tell someone that for their own good we will not let them do something with their bodies because we disapprove of it?" My experience has taught me that there are some circumstances that are so likely the product of coercion that society should not tolerate them.

  51. James Pollock says:

    The basic rule of stock market regulation is disclosure; for the vast majority of trades, the regulator's answer is "you can do that, but you have to tell the truth about what you're doing". In other words, people are free to choose to make what appear to be stupid trades, but only if they have access to the information that makes the trade look stupid.
    The reason insider trading is forbidden is because there is unequal information between buyers, sellers, and other potential buyers and sellers.
    In other words, you ARE allowed to take advantage of unequal analysis skills, but you are NOT allowed to take advantage of unequal information. Imagine a poker game where one player knows what cards the others hold. Wouldn't be fair, would it?

  52. rmv says:

    @James
    "In other words, you ARE allowed to take advantage of unequal analysis skills, but you are NOT allowed to take advantage of unequal information. Imagine a poker game where one player knows what cards the others hold. Wouldn't be fair, would it?"

    What you are doing is inflating the knowledge premium of less scrupulous traders, however.

  53. Shane says:

    @pillsy

    The same people who decide that fraud and blackmail aren't allowed in the first place, I'd say.

    Fraud and blackmail have pretty precise definitions and clear conditions, "too exploitative" not so much.

    It's not like the stock market is entirely unregulated. There are already all sorts of prohibitions of what kinds of trades you can make.

    I think it's appropriate to ban some kinds of transactions or relationships

    Ban is not regulated. Also behind the veil of the Oz the Great Market, those transactions happen anyway. A smart person takes this into account when they engage in these transactions. And if a "dumb" person engages in those transactions then they get what they deserve.

    AIUI, one of the major rationales for prohibiting insider trading is that such trades are particularly likely to be fraudulent.

    And yet they still happen. If it can be proven that the trade was fraudulent then prosecute a way, but that is not they way it happens now. Fraud can and should be prosecuted, but "insider trading" minus fraud is a ridiculous restriction. And all of this leads to political intervention that has no other purpose than to appease the political masters and create more new bureaucracies and intervention a positively reinforced spiral.

  54. James Pollock says:

    "What you are doing is inflating the knowledge premium of less scrupulous traders, however."
    Sure. And what happens when it is discovered, mid-game, that a player has had access to "inside information" about the other players' cards?
    Cheating is risk. You can adjust the risk somewhat, but controlling what is considered "cheating", and by instituting protective measures against known forms of cheating.
    Casinos, for example, consider card-counting to be cheating at blackjack. (I do not, as it is an example of superior analysis skills of information that is available to every player, including the house). They'll kick you out if they think you're card-counting. But they ALSO put in some anti-card-counting measures, such as multi-deck boots.

  55. James Pollock says:

    Also, of course, you can play poker with all the cards face up. Isn't as much fun, though.

  56. CJK Fossman says:

    @Mitch

    As some here have already said, not a few sex workers say they took up the trade as a choice. Thus I am not so sure your "some transactions …" argument holds water.

    And even if there is coercion, statistics cited here show that law enforcement does a piss poor job of going after the coercers and does a great job of making life miserable for the coerced, your praiseworthy prosecution of the Mexican cartel notwithstanding.

  57. R R Clark says:

    Ken, great post. As someone with a law enforcement background (that has never engaged a prostitute for services), I agree that prostitution should be decriminalized. I have two very strong reasons for this.

    The first is human trafficking, which is the dirty secret that underpins much of the reasoning for making prostitution an illicit enterprise. In one of the oldest and most laughably expectable bits of irony in the universe, this very resolution to render the trade illicit increases the incentive for and incidence of human trafficking in the business.

    The second is the inherent danger to even the non-trafficked sex workers that operating in the shadows generates. Making them more readily available prey for the truly deviant parts of our society is incredibly negligent of us and feeds into the human trafficking aspect.

    There are several good documentary producers chronicling the changes in the sex trade since the advent of the internet, but I'm sure if you asked any of them whether we should move to legalize the practice they would say yes and be able to point to the same two reasons.

  58. pillsy says:

    @Shane:

    Fraud and blackmail have pretty precise definitions and clear conditions, "too exploitative" not so much.

    Just so. Which is why the prohibitions are, in general, on specific sorts of transactions, instead of being written to encompass all transactions are "too exploitative". People then can argue whether the transactions in question really [b]are[/b] frequently exploitative, whether prohibiting them is likely to improve anything, whether the costs of enforcing prohibition are worth it, and whether the ban will also affect too many transactions or relationships which are harmless.

    But that's also true of blackmail–there was ultimately a social decision that blackmail needed to be prohibited.

    And yet they still happen.

    In and of itself, that's not much of an argument. Sure, insider trading still happens, but so does outright fraud and theft.

  59. stillnotking says:

    Same arguments apply as in the War on Drugs, only even more clearly. Unlike with drugs, all the negative externalities of prostitution are the result of the black market, not of prostitution itself. If prostitutes could legally advertise and conduct business in safe locations of their own choosing, hiring a prostitute would be no more remarkable or dangerous than hiring someone to do your taxes. Human trafficking would not exist if prostitution didn't have to take place in shady "massage parlors" or warehouses along the border. As for the argument that women are forced into prostitution by financial need — well, by that standard we're all victims of exploitation, aren't we? Would anyone here keep going to work if the paychecks stopped? It's telling that people assume sex work is so uniquely awful that no one would do it if they had any other option, even though the evidence against that assumption is as strong as it could possibly be. They don't call it the world's oldest profession for nothing.

    In fact, I have to assume anyone who opposes decriminalization is ultimately motivated by a visceral dislike of the very idea of paying for sex. Hey, fair enough. Most of the world's religions are strongly against it, and no one's forcing you to do it. But that's not a good reason to prevent other people from doing it, and it certainly isn't a good reason to expose prostitutes and their clients to severe physical and legal risk. It's time for us to get over the ick factor and just do the right thing.

  60. Xenocles says:

    "Yet criminalization "protects" prostitutes by repeatedly arresting and jailing them and by leaving them with precisely the sort of criminal record that makes it crushingly difficult to secure a job of which our society approves."

    I agree with this. You cannot expect the law to protect people who are outside the law.

    On that general theme I am really annoyed by the use in the media of the word "prostitute" to describe what are in fact sex slaves. I think separating these conceptual groups could go a long way to bringing the intentions of the laws back in line with the results.

  61. Mitch says:

    @CJK Fossman "As some here have already said, not a few sex workers say they took up the trade as a choice. Thus I am not so sure your "some transactions …" argument holds water."

    I know that there are some sex workers by choice. And I do not pretend to know the proportion. AND I am not saying that all sex work, or even all prostitution, is so horrible that it consent is unlikely to be authentic.

    What I am saying is that people who service upwards of 20 johns per day (for little to no pay) in brothels that are hermetically-sealed from the outside work and who have been denied their travel papers are so likely to be coerced that I would not readily accept their proclamations that they were working willingly. My strong expectation is that such a person had been coerced, and I would spend law enforcement resources to determine whether a case of coercion should be pursued.

  62. CJK Fossman says:

    @pillsy

    The l337 posters and cool kids use angle brackets, aka less than and greater than, for html tags, not square brackets.

    Those are the capitalized comma and period keys. Not being a wise ass here, it's just I'm not sure I can trick this blog software's input sanitizer into displaying them. Since there's no preview I'll have to show my ignorance in public, not for the first time.

    Here is one try.
    Left angle bracket:

    Or here's another try: < and >

    Or here's the left angle bracket: <

  63. Mitch says:

    @stillnotking – There is empirical evidence that refutes your thesis that trafficking would not exist in a country that has legalized prostitution. For example, Germany has a long history of legalized red-light districts AND sex slavery. http://ec.europa.eu/anti-trafficking/showNIPsection.action?country=Germany

    @Xenocles – I agree with you 100% that there is an important distinction between sexual slavery and prostitution. There is a problem, however, making the dividing line between the two turn on what words are spoken by the sex worker. Coerced affirmations of consent are real.

  64. R R Clark says:

    @stillnotking

    Your presumption that human trafficking would not exist if prostitution alone did not reside within the illicit realm is a flawed one. Decriminalization of prostitution would merely result in a reduction of the activity as the incentive and profit diminish.

    Human trafficking is a complex and multi-faceted problem that includes migrant workers, indentured servants (actually Ken may be able to speak to the legality of this, but every opinion I've heard heretofore is that, as a contract, it's a legal practice), children (for adoption), and so forth.

    Any decriminalization would require a pivot of law enforcement and resources to protect what will be the new primary victims. Incidentally, child adoption would likely be the new focus of these human traffickers as it has the highest profitability and least recourse.

    So I would prefer we not pretend that decriminalizing prostitution will result in immediate improvements. It, frankly, will probably result in an increase in more concerning sorts of exploitative behavior.

    While you are correct that there are parallels in the War on Drugs, I feel I should remind you that without it there would be several million Americans out of work. So again, actually moving to make these major policy changes requires a lot of time to pivot successfully. Which is why Holder's "we're going to leave drug enforcement to the states unless they request federal assistance" decision was an important one. It means that states and the federal agents can pivot to enforcing other drug prohibitions and identifying other illicit goods networks to pursue.

  65. Steven H. says:

    @R R Clark:

    "The first is human trafficking"

    Someday, we'll ditch this particular euphemism and start calling it what it really is – SLAVERY.

  66. CJK Fossman says:

    @Mitch

    No disagreement.

    Please tell me I'm mistaken in my belief that a lot of law enforcement authorities would also, or only, arrest and prosecute the unwilling workers.

  67. Xenocles says:

    @Mitch-

    They could at least start with the obvious ones, like the women and children clearly trafficked through fraud and coercion. I saw the right word used in the headline of that NYT article you linked but it seems to be in NPR's style guide to call a prostitute any person who takes money from a client in exchange for sex, regardless of the circumstances.

  68. stillnotking says:

    @Mitch – New Zealand, which has sane laws governing prostitution (i.e. effectively no laws governing it), has never prosecuted a single instance of sex trafficking. Germany may have legalized prostitution, but it also has a comparatively restrictive regulatory framework and a bunch of neighbors that still outlaw the practice. That's a recipe for illegal immigration, at least — and a prostitute who is also an illegal immigrant is likely to claim she's a victim of trafficking, to obtain better treatment from the authorities.

    I wouldn't expect decriminalization to eliminate all trafficking overnight, but it would be a clear step in the right direction.

  69. pillsy says:

    @CJK Fossman:

    Argh. It's basically muscle memory at this point; I do most of my posting on a board where they use [square] brackets instead of <angle> brackets.

    (Now watch me screw up the angle brackets in this post and compound my humiliation!)

  70. CJK Fossman says:

    @pillsy

    Yeh, I know about muscle memory. When I first started hand hacking html I started hitting the left angle bracket every time I wanted a left parend.

    Retraining took forever.

  71. rmv says:

    @Mitch

    "What I am saying is that people who service upwards of 20 johns per day (for little to no pay) in brothels that are hermetically-sealed from the outside work and who have been denied their travel papers are so likely to be coerced that I would not readily accept their proclamations that they were working willingly."

    Do you have any, ANY evidence on how prevalent this type of sex work is?

    @ R R Clark

    "So I would prefer we not pretend that decriminalizing prostitution will result in immediate improvements. It, frankly, will probably result in an increase in more concerning sorts of exploitative behavior."

    You do realize countries have decriminalized prostitution, right? With limited negative consequences?

  72. Mitch says:

    @CJK Fossman "Please tell me I'm mistaken in my belief that a lot of law enforcement authorities would also, or only, arrest and prosecute the unwilling workers."

    I wish that I could, but sadly you are correct. OTOH, the proportion of law enforcement officers who have learned to recognize the hallmarks of sexual slavery has grown over the last decade. There has been a LOT of outreach from the US DOJ Civil Rights Division and NGOs like Polaris to increase understanding. For example, I attended annual conferences in New Jersey that drew attendance from virtually every city police force and county sheriff's office. As a result, we saw prosecutions referred from local arrests.

  73. Mitch says:

    @RMV ""What I am saying is that people who service upwards of 20 johns per day (for little to no pay) in brothels that are hermetically-sealed from the outside work and who have been denied their travel papers are so likely to be coerced that I would not readily accept their proclamations that they were working willingly."

    Do you have any, ANY evidence on how prevalent this type of sex work is?"

    Yes. In every one of the prosecutions that I brought for sex trafficking, those were the conditions imposed on the women. I know that those were the conditions in the other cases brought by the US Attorney's Office in New Jersey from 2002 through 2006. I know that those were the conditions in many of the cases brought by the US Attorney's Offices in New York.

    I certainly hope that the vast majority of prostitution in the United States is not a product of sexual slavery, but I do not know of a good source of statistics on that proportion. It may be out there, but I am not aware of it.

  74. hanmeng says:

    "laws…must be judged by their outcomes, not their intentions"

    Now that's just crazy talk.

  75. rmv says:

    @Mitch
    "I certainly hope that the vast majority of prostitution in the United States is not a product of sexual slavery, but I do not know of a good source of statistics on that proportion. It may be out there, but I am not aware of it."

    So, no, you don't.

  76. En Passant says:

    Mitch wrote Sep 13, 2013 @11:56 am:

    @stillnotking – There is empirical evidence that refutes your thesis that trafficking would not exist in a country that has legalized prostitution. For example, Germany has a long history of legalized red-light districts AND sex slavery. http://ec.europa.eu/anti-trafficking/showNIPsection.action?country=Germany

    From which article I note:

    In 2009 ( the year with the latest data), within 534 concluded police investigations 710 victims of trafficking for sexual exploitation were identified.

    The number of trafficking victims identified in Germany in 2009 appears comparable to the the number of homicides in Germany in 2012, about 690 according to United Nations Office on Drugs and Crime cited by Wikipedia. Unless either those numbers vary wildly from year to year, and if one trusts the sources as accurate, I think they show that actual trafficking rates for Germany are about the same as homicide rates. That is, both are relatively rare events.

  77. Mitch says:

    @RMV. You ignored the first part of my answer. Sexual slavery is prevalent enough that prosecuting it was full-time work for me and several of my colleagues in New Jersey and for similar groups in the SDNY and EDNY.

    So, I went and looked for some statistics. Here is a link to the most recent data set for T Visa (trafficking victims) and U Visa (victims of crime – which may include trafficking victims) from the DOJ in pdf form. For the first 3 quarters of 2012, at least 684 individuals (plus family members) were granted T Visas. That means at least 684 individuals suffered from trafficking. Is that enough suffering for you to care about it?

    http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Victims/I914t-I918u-visastatistics-2012-qtr4.pdf

  78. Anonymous says:

    @SIV

    How is "decriminalizing prostitution" a complex argument? Either you believe in liberty and autonomy or you don't.

    I think prostitution should be legalized but I can recognize a sloppy argument when I see one, even if it is made by somebody in my camp.

  79. If prostitution were legal, it would be much less likely for its workers to be the product of any sort of extortion or slavery. If crunching numbers (the sort of work I do) were illegal, it would be much more likely for its workers to be the product of some sort of extortion or slavery. In either case, let's please apply the Golden Rule: if consenting adults want to do it, whether or not cash is exchanged, let them be. As our late Canadian Prime Minister Pierre Elliott Trudeau said, "there's no place for the state in the bedrooms of the nation."

    That said, I favour regulation for prostitutes, just as I do for doctors, engineers and lawyers (among others). Bad reputations do not precede bad actors nearly quickly enough; regulations aren't perfect either but in moderation they help. And in the case of prostitution I think "good" regulations could help them as much as they might help their customers.

  80. Mitch says:

    @en passant wrote "The number of trafficking victims identified in Germany in 2009 appears comparable to the the number of homicides in Germany in 2012, about 690 according to United Nations Office on Drugs and Crime cited by Wikipedia. Unless either those numbers vary wildly from year to year, and if one trusts the sources as accurate, I think they show that actual trafficking rates for Germany are about the same as homicide rates. That is, both are relatively rare events."

    I do not think that is a valid conclusion to be drawn from the data. Murder is one of the most well-reported crimes. Virtually all murders are reported to the police in the developed world. So, I take the fact that Germany reported around 600 murders in 2012 as strong evidence that there were approximately that number of murders in Germany during that year.

    Sex trafficking, on the other hand, is not a well-reported crime. The victims are unlikely to be reported as missing by friends or family. Cases are almost always opened based upon law enforcement work, not a spontaneous civilian (or victim) report. So I do not know whether the fact that there were only approximately 600 prosecutions for trafficking in Germany means that the trafficking rate is roughly equal to the murder rate.

    And – getting back to my main theme – this is in a country were prostitution is legal and regulated. My understanding is that public health officials regularly interact with those who work in German red-light districts. Even under those circumstances, real investigation is needed to determine whether ostensible consent = actual consent.

  81. En Passant says:

    Hmm. I missed the ec.europa.eu figures above for trafficking in 2011:

    in 2011 640 victims were identified (an increase of 5%).

    I didn't find the numbers for 2010, so I'll take their word for the increase from 2010. But the number of 640 identified victims is even lower the 2012 number of homicides (690) than the 2009 figures.

    So, to reiterate my point — Trafficking does exist in Germany where prostitution is legal but subject to various legal restrictions. So does homicide. Both are relatively rare.

    If the claims of American prohibitionists were true, that legal prostitution encourages or increases trafficking, the occurrence of trafficking in Germany should be much higher than it actually is.

  82. Mitch says:

    @En Passant – There are people in the anti-trafficking movement who are for legalized prostitution and there are also people in the anti-trafficking movement who are against legalized prostitution. And, for the reasons I set forth above, I do not think that the similar levels of reporting of murder and trafficking in Germany should lead to the conclusion that the murder rate and trafficking rate in Germany are the same.

    What is your response to the fundamental question that @Ken raised? Are there circumstances where society may (and should) criminalize behavior to which the actors consent. @Ken explicitly agreed that age-based restrictions are appropriate. And I believe that @Ken agrees that coerced consent should be prosecuted, but he fears that claims of trafficking have become an "air horn" that crowds out reasonable discussion of legalized prostitution. I do not share that fear, but I understand the basis for his concern.

  83. Shane says:

    @Mitch

    I certainly hope that the vast majority of prostitution in the United States is not a product of sexual slavery,

    Since prostitution is essential illegal in most of the U.S. you really have nothing to compare to. As other posters have suggested use countries that have legalized it to compare with.

    @Mitch you have the experience to back up what you see under the CURRENT set of rules. The hard part is to look into the unknowable future and make predictions based on changed circumstances. I really don't think that anyone is disputing what is currently happening. I think what people want to dispute is that given a change in the law(s) how would things look.

  84. Shane says:

    @Mitch

    That means at least 684 individuals suffered from trafficking. Is that enough suffering for you to care about it?

    Why argue in terms of suffering, because this statistic is only one side of the equation, how many people suffer and how much do they suffer because of the loss of liberty from the laws that protect these people.

    Another way to look at it, how many people are saved from unscrupulous drug companies because the FDA regulates how drugs are brought to market? This is the only point of view than people are willing to consider. Do you know that there is another point of view with a set of consequences too? Be careful following a utilitarian path you might be in for a surprise.

  85. Shane says:

    @Jonathan Gladstone

    That said, I favour regulation for prostitutes, just as I do for doctors, engineers and lawyers (among others).

    Isn't criminalization of an activity the ultimate regulation? How can you favor decriminalizing prostitution and then turn around and selectively criminalize certain aspects that you feel are bad?

  86. En Passant says:

    Mitch wrote Sep 13, 2013 @12:57 pm:

    I do not think that is a valid conclusion to be drawn from the data. Murder is one of the most well-reported crimes. Virtually all murders are reported to the police in the developed world. So, I take the fact that Germany reported around 600 murders in 2012 as strong evidence that there were approximately that number of murders in Germany during that year.

    Sex trafficking, on the other hand, is not a well-reported crime. The victims are unlikely to be reported as missing by friends or family. Cases are almost always opened based upon law enforcement work, not a spontaneous civilian (or victim) report. So I do not know whether the fact that there were only approximately 600 prosecutions for trafficking in Germany means that the trafficking rate is roughly equal to the murder rate.

    I don't find argument from ignorance convincing, even less so when combined with appeal to speculative probability.

    Essentially it says that because it is possible that we don't know for absolutely certain the rates of trafficking and coercion where prostitution is legal, then the rates must be much higher than those based on data we know for certain. Because people don't report when their family members are missing.

  87. SIV says:

    @Anonymous • Sep 13, 2013 @12:44 pm

    I'm not in your camp. "Sloppy" is avoiding the basic question by going off on utilitarian tangents and white slavery "human trafficking".

    There

  88. rmv says:

    @Mitch

    "Is that enough suffering for you to care about it?"

    So, those 684 are enough suffering to continue the criminalization of tens of thousands of non-coerced sex workers?

    How much of their suffering is enough for you?

  89. James Pollock says:

    "If prostitution were legal, it would be much less likely for its workers to be the product of any sort of extortion or slavery."

    I don't know that this is true. If there's money to be made in forcing a woman into sexual slavery, there are people who will do it. You'd get some reduction, because women who are forced into it will not have to fear the legal authorities. But, if you have prostitutes who are illegal immigrants, they'll STILL be afraid to go to the authorities, and they'll still be victimized. The problem is, and will remain, lack of meaningful alternatives.
    The theory that legalization of the practice of prostitution won't leave behind an unregulated market which will be filled by criminals either assumes that legalized prostitution will be entirely unregulated (unlikely) or that all the profit will be left out, moving the criminals to more productive avenues. I don't think legalization is a cure-all for the problem(s) associated with prostitution. Rather, it will address some, exacerbate others, and leave others largely untouched.

  90. @Shane, I agree with you that criminalization of an activity is the ultimate regulation. But it's not all black or white. I can easily favour decriminalizing an activity while regulating it. Your quote from my earlier post gives three examples: I think the practices of medicine, engineering and law should all be legal but regulated, as they are in most jurisdictions I know of. Many legal activities are constrained by a variety of regulations, and most of us think that's as it ought to be no matter how much we disagree on exactly how many and which regulations should apply.

    As far as prostitution is concerned, I don't think there should be any law against it at all. I do think prostitutes and the general public would be well-served by regulations not unlike those that apply to people who sell food commercially: they and their premises should be licensed, and required by law to maintain standards of health and cleanliness that protect them and their customers.

  91. James Pollock says:

    "How can you favor decriminalizing prostitution and then turn around and selectively criminalize certain aspects that you feel are bad?"

    Maybe the same way driving is legal, but certain aspects are criminalized? The way talking to other people is legal, but certain aspects are criminalized? The way owning things is legal but certain aspects are criminalized?

  92. @James, fair enough. I concede your points. But I wrote "much less likely", not "impossible" or even "unlikely"; I understand that illegal immigrants along with many other unfortunate people make good captives for all sorts of illegal servitude. I think you're clarifying more than disagreeing with me.

  93. James Pollock says:

    "the rates must be much higher than those based on data we know for certain. Because people don't report when their family members are missing."

    It seems reasonable to assume that there may be a variance between the reporting rates of various crimes, and to speculate as to the extent that a crime is underreported. For example, I'm certain, based on my experience, that jaywalking is far more common than are reported cases of jaywalking. And the logic that "almost all murders are reported" is true, and that "almost all cases of human trafficking are reported" is less true. (Although, it may be simultaneously under- AND over-reported, if there are situations where a false report is advantageous and situations where denial is advantageous.)

  94. lagaya says:

    @Erwin, Just because you believe that half the population is "qualified" to be prostitutes, doesn't mean that the pool of workers would be so large that minimum wage is all they could ask… It's like saying that anybody could be a coal miner, so they need not be paid much. The point is, who would want to? Do you think that just because it's suddenly legal, that women would start lining up for the job? Not a logical argument at all.

  95. James Pollock says:

    "As far as prostitution is concerned, I don't think there should be any law against it at all."

    I think there should be SOME laws against it. Regarding, for example, persons unable to consent by reason of minority or incapacity, or persons who participate by coercion. (Plus the regulation as to time and place, public health, and PROBABLY some limitations on ads.)

  96. Shane says:

    @Jonathan Gladstone

    As far as prostitution is concerned, I don't think there should be any law against it at all.

    But, but aren't regulations laws? And why do we regulate doctors, lawyers and engineers (this one confuses me)? So we can all feel comfy that all is well and these professions are now safe for mass consumption. The problem is that if we start criminalizing … err regulating certain aspects of a profession based on whatever grounds what will stop us from regulating other aspects of it, and most importantly where will the regulation end. Most current regulation ends when the profession can no longer function and the ethical players exit and the unethical players enter. I don't see this as a solution.

    But as I said earlier let us legalize prostitution and haggle about the details later.

    I do think prostitutes and the general public would be well-served by regulations not unlike those that apply to people who sell food commercially:

    If regulation is so good then why is this happening? The problem with the government being involved in the economy is that is size power and influence grow in on direction driving people into the black market. If a drive can be charged for manslaughter for his negligence then why can't a doctor be charged too? Trying to prevent something from happening (which is the foundation of regulation) never works and leads to more and more involvement from outside coercive forces.

  97. En Passant says:

    Mitch wrote Sep 13, 2013 @1:18 pm:

    What is your response to the fundamental question that @Ken raised? Are there circumstances where society may (and should) criminalize behavior to which the actors consent. @Ken explicitly agreed that age-based restrictions are appropriate. And I believe that @Ken agrees that coerced consent should be prosecuted, but he fears that claims of trafficking have become an "air horn" that crowds out reasonable discussion of legalized prostitution. I do not share that fear, but I understand the basis for his concern.

    By definition coerced consent is not actual consent.

    So, trafficking in persons held by coercion should be illegal. But prohibitionists have stretched the meaning of trafficking and coercion to include associations among people that are not coerced. According to prohibitionists, a woman is coerced, and therefore trafficked, if she makes a rational economic and personal decision that prostitution pays better than other employment. I think that argument is pure garbage, but I've heard it endlessly from prohibitionists.

    Age based restrictions are a based on presumed incapacity to consent due to youth and immaturity. There may be debates around the margins of the appropriate age of consent (say, 18 or 21), but most would agree that some age is appropriate. Except the prohibitionists who argue that nobody of any age could possibly actually consent to engage in prostitution, because, well just because.

    I agree with Ken that "claims of trafficking have become an 'air horn' that crowds out reasonable discussion of legalized prostitution." One need only review the claims of various anti-prostitution prohibitionists to see the phenomenon. All such advocates I've ever seen or heard conflate trafficking with prostitution in general — anyone who associates with a prostitute is a trafficker, husbands, wives, business managers, even cab drivers.

    The only other arguments against legally permitting prostitution among consenting adults that I've ever heard are variants on "it's icky". It's immoral. It undermines womens' status. It undermines families. It undermines "values". It leads to crime, et cetera.

    I think they're all balderdash.

  98. CJK Fossman says:

    @shane

    Licensing of some engineers is a public safety issue.

  99. Clark says:

    @CJK Fossman

    Licensing of some engineers is a public safety issue.

    No.

    Engineers in certaing fields doing competent work is a public safety issue.

    Licensing is one approach to dealing with that issue.

  100. En Passant says:

    Clark wrote Sep 13, 2013 @2:31 pm:

    Engineers in certaing fields doing competent work is a public safety issue.

    Licensing is one approach to dealing with that issue.

    I've never seen a good citation for it, but legend has it that Romans required the engineer to stand under the arch he designed as the scaffolding was removed.

  101. Dan Weber says:

    There is talk, now and again, of making pimps and johns the focus of criminalization

    For some reason I thought most of the arrests were against the johns; there's some news story buried in my cranium that says so. Thank you for the correction.

  102. James Pollock says:

    "If a drive can be charged for manslaughter for his negligence then why can't a doctor be charged too?"

    What is your complaint, here? A doctor can be charged for manslaughter for negligence. For example,
    http://abcnews.go.com/US/michael-jacksons-doctor-guilty/story?id=14880567

  103. George William Herbert says:

    James Pollock wrote:
    What is your complaint, here? A doctor can be charged for manslaughter for negligence.

    My understanding is that the rate of serious goof to negligent deaths per doctor is approximately 1, i.e. that over a typical career, most doctors will end up killing someone that they should have saved, in an individual sense (not a "too many people in hospitals get infections" or other systemic sense).

    The comparative rate of court cases against doctors also approximates 1, but that's 1 per year that makes the news countrywide. There are approximately 835,000 physicians in the US.

    If we assume a 40 year career after med school, that would be about 20,000 instances a year…

    I am not saying we should charge every doctor. But holding one responsible for killing Michael Jackson, and malpractice civil cases, does not a total picture make.

  104. James Pollock says:

    "I am not saying we should charge every doctor. But holding one responsible for killing Michael Jackson, and malpractice civil cases, does not a total picture make."

    Yeah. How many people are killed due to negligent operation of a motor vehicle, compared to how many are charged with manslaughter as a result?
    In either case, only the extreme cases get charged. In both cases, most of the heavy lifting is done in the civil court system, not the criminal.

  105. Erwin says:

    @lag. Minimum wage is probably an exaggeration. However, my limited reading of sex worker blogs found more concern over wage loss due to increased competition than over problems due to criminalization.
    –Erwin

  106. AlphaCentauri says:

    Just playing Devil's advocate here …

    How many of the countries where prostitution is legal have as much protection for free speech as the US?

    What I'm getting at is that people living in urban environments have to deal with a great deal of nuisance free speech. People with crazy political views, people who want money, whatever. It's protected speech.

    In countries like Germany, prostitution is limited to red light districts. In the US, if prostitution were legal, would it be legal to restrict solicitation to particular districts? Or would shopping malls be required to allow prostitutes to drum up business in the food court?

  107. James Pollock says:

    "In the US, if prostitution were legal, would it be legal to restrict solicitation to particular districts?"

    The U.S. Constitution generally permits time-place-manner restrictions on free speech. Some of the states, however (Oregon comes to mind because I'm currently standing within its borders, but possibly others) have more expansive free speech protection built into the state constitutions.
    Our current fuss is over "bikini baristas", who apparently weren't technically wearing bikinis. They can be zoned to exactly the same degree as any other business… but not specifically because of content.
    (FWIW, I think the mall should be able to eject a person attempting to drum up business on the premises, if they aren't paying rent. Petitioners have to be allowed, but can be confined to a "petitioning area" and can be ejected if disruptive. Would you put the "prostitute zone" next to the Bed Bath & Beyond, next to the Abercrombie & Fitch, or down by the candy shop?)

  108. wgering says:

    @En Passant: I've heard something similar about architects in ancient Babylon; they had to live in the houses they built for a few days in case the roof fell in or somesuch.

  109. spinetingler says:

    "To a limited extent, johns cannot give reviews on prostitutes' performance, either. "

    This will enliven Yelp.

  110. NRG says:

    DANG, where is Maggie when we need her? http://maggiemcneill.wordpress.com/2012/10/12/smoke-and-mirrors/ is a relevant link RE: "trafficking" and begins to tackle other myths concerning whoredom.

  111. Anony Mouse says:

    Hm. Legalization seems to be working okay in non-Vegas, Nevada.

    It also worked okay in Old Town, but I'm told Sin City wasn't a documentary.

  112. JR says:

    The only way I can see sex work(ers) being decriminalized is if there were some client confidentiality clause similar to those of the medical professions. Regulation is a no-brainer due to the high likelihood of contacting STDs, many of which do not show symptoms for quite long periods of time.

    Even now, when it is illegal, we are constantly discovering more people in public or influential positions are participating in the trade. Imagine the tidal wave of information if they had to sign in before being served because the government regulations required the prostitute contact all clients within a time frame upon discovery of an infection.

    I'm basing this on the number of middle- and upper-class citizens that have checked in at a hotel I work with girls I know to be in the trade while making doubly sure of our guest confidentiality rules. It's hard not to laugh at the way they act as if playing a part in a b-rated cold war flick.

    Here are some of the reasons an underground market would still exist. Many people cannot afford to patronize legitimate establishments, would be unable to acquire whatever permits/certifications of health were required to perform legally, prefer not to have their financial transactions looked at too closely because the majority of their take goes to drugs, or do not want to risk their reputations/marriages by being seen entering or leaving the establishment.

  113. piperTom says:

    Mitch has missed the point. He report that the current legal system has allowed some group to exploit children. That is hardly an argument against the points that Ken raised.

  114. Illy says:

    This one is pretty simple.

    We lose.

    Prostitution is reffered to as "the oldest profession" for a damn good reason. It's certainly not going away.

    So why are all the politicians not going: "regulate it, tax it, make sure everyone knows what they're getting before money changes hands"?

    I could regurgitate all the arguments against prohibition here, because this is essentially the same issue: People doing things that are not *inherently* harmful to themselves and others, with the consent of all involved.

  115. Rich Rostrom says:

    Point #1: When one says an artist, or a lawyer, or a writer, or an actor, or a scholar prostituted himself, it doesn't mean "did it for money". Money is the normal reward. It means degraded himself and his profession for money. Prostitution will never be respectable. It may be legal; it can never be clean. The "talent" will always be young (and therefore vulnerable); the "management" will always be those who choose to make money off this vile trade, that is, scum.

    Point #2: you ought to hear what they have to say about it

    Who are "they"? There are prostitutes who are self-managing professionals; there are prostitutes who are brutally exploited slaves; there are prostitutes who are addled dupes. There are ex-prostitutes who retired comfortably, and ex-prostitutes who "retired" by dying of drug overdoses, disease, or violence.

    ISTM that those who suffer worst from the sex trade are the least likely to be able to speak up about it. The young, dumb, uneducated, poor, mentally unstable, don't speak English, naive, shy. And those who are dead.

    I think for every "empowered sexworker" we hear from there are several dead sex slaves we can't hear from.

  116. En Passant says:

    Rich Rostrom wrote Sep 16, 2013 @1:40 pm:

    Prostitution will never be respectable. It may be legal; it can never be clean. The "talent" will always be young (and therefore vulnerable); the "management" will always be those who choose to make money off this vile trade, that is, scum.

    Citation needed.

    Categorical assertions ("can never be", "will always be") suggest self-evident metaphysical truths, although the questions which they purport to answer are simply empirical.

    Who are "they"?

    One whose name is familiar to most any Popehat readers is Maggie McNeill. Her blog The Honest Courtesan, maggiemcneill.wordpress.com, appears in the blogroll on the upper left of each Popehat page.

    ISTM that those who suffer worst from the sex trade are the least likely to be able to speak up about it. …

    I think for every "empowered sexworker" we hear from there are several dead sex slaves we can't hear from.

    At least these assertions are qualified as opinion. Perhaps there is reliable data to support them. Or perhaps not.

    From my limited experience years ago searching out government RFPs and writing proposals for a social statistics research organization, I have never seen a government RFP to fund research on positive outcomes for prostitution or drugs. But I have seen plenty to fund research and data gathering on negative outcomes. So, I tentatively conclude that the paucity of such data on positive outcomes is due to the absence of research funding, because the government bureaucracies do not want to fund research that might contradict their mission of supporting prohibition.

    If you posed your assertions as questions in Maggie McNeill's blog's forum you might find knowledgeable responses with links to reliable data on the subject.

  117. flip says:

    "In what other circumstances — other than, say, the War on Drugs — will we tell someone that for their own good we will not let them do something with their bodies because we disapprove of it?"

    6. Euthanasia

    @rmv

    Re: prostitution in Australia, this is a worthwhile read, especially for some commentary on legalisation.
    http://en.wikipedia.org/wiki/Decriminalization_of_prostitution#Australia

    Thanks for leading me to something I didn't know about my own country.

  118. flip says:

    Posted too soon… should have also added my thanks for this discussion. It's not something I've ever thought about, but it turns out I agree with legalisation with the provision that it have some regulation due to STDs.

  119. Malcolm says:

    All these points are very valid, but they are dependent on the proposition that laws against prostitution exist for the good of the women involved. The older view was that they existed for the good of society: that if you didn't keep the lid on the cesspit it would overflow. (Perhaps that is a bad simile, but you get my point.) The idea is that prostitution should be stopped because it is morally evil, and it is morally evil because of bad effects on everyone who touches it.
    When I was in my early twenties, I would not have known where to find a prostitute. Oh, no doubt I could have does so if I had really wanted to – but that is the whole point, "if I had really wanted to". It wouldn't be a case of passing a brothel, or street walkers giving me the come-on every day, and deciding to try it out. More to the point, we didn't have young women constantly exposed to what looked like a quick way to make easy money, and deciding to enter the sordid trade.
    On the grounds that hiring prostitutes (if you are male) or renting out your body (if you are female) have bad consequences, there is a prima facie case for the law trying to restrict it.
    In a like manner, I can also say that, as a young man, I would not have known where to get hard drugs – unless I really wanted them.
    None of this implies that either prostitution or drug trafficking should be illegal. It is not possible to ban every bad activity. As the author pointed out, legislation should be judged by its results, not its intentions. But let us at least be clear about our intentions. They should not only be to prevent harm to prostitutes, but to prevent a moral danger to society.

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