Thinkin 'bout prostitution

Today I play devil's advocate.

Elliot Spitzer has caused everyone on the planet to start thinking about prostitution. It seems too obvious that it is a victimless crime, and it boggles my mind why it is illegal at all. Clearly it is illegal because there is some taboo against it, and as enlightened as we are as a society, we have not overcome that.

One reason we consider it such a taboo is that prostitutes do something that no one likes, they show us the truth. We always punish those who show us the truth, because the truth is usually unpleasant. We like our illusions. We like believing that sex is romantic. It is something done by two people who are in love and want to give each other pleasure, and procreate and that sort of stuff.

But as anyone who has any familiarity with what we might call more "primitive" cultures knows, or as anyone who has ever paid for an engagement ring knows, or as any Marxist will insist: sex and marriage can usually be understood in much less romantic terms. Sex and marriage can be quite plausibly construed in financial terms.

Prostitution is in the unfortunate position of making it painfully obvious that sex is merely financial, or at least that sex can sometimes be construed as purely a financial matter, where sex is a service which is paid for as any other service would be. Keeping up the illusions of the romance of sex might be worth enforcing a ban on prostitution all by itself.

But although prostitution does not seem to harm or offend anyone, nor does it seem inherently immoral, there are still a few arguments that can be made for its banning.

Keep in mind that I do believe that it should be legalized. But for the sake of the argument I will put forth a few things to mull over. Consider the claim that prostitution, by being kept illegal, provides a benefit to third parties that outweigh the restriction to your rights to private sexual dealings between consenting adults.

I suppose that old-time conservatives might use this argument to argue that all sorts of deviant sex corrupt public morality, and as such provide a harm to third parties, but they are old-fashioned, and the burden rests on them to define public-morality in a non-question-begging way.

But here are the arguments:
First, because of the de facto nature of who and when we prosecute prostitution, society tends to prosecute (or in any case make a big deal out of prosecuting) only those people who would be seriously publicly embarrassed by such prosecution. That is a good thing, as it discourages people from becoming the kind of person who would seriously be embarrassed by such prosecution. For example, people who make themselves the targets or revenge by publicly embarrassing others with frivolous prosecutions. (i.e., if your hands are so dirty that you've screwed so many people, over little things, that they or their friends in turn are willing to prosecute you for sex, you really might deserve it.)

Second, it provides an enforcement mechanism for people who should not be frequenting prostitutes, not to frequent prostitutes. Married men, for example, are presumably contractually obligated (via their marriage contract) not to have sex with prostitutes. So the public prosecution of prostitution provides an enforcement mechanism for an otherwise unenforceable/unenforced breach of contract. That is, at least one type of infidelity becomes known to your spouse. A conviction of solicitation is not nearly as embarrassing if you are not married, and so the argument that it disproportionately punishes married people is quite the point. (Perhaps there is an argument that it should only be a crime for married people. Of course there is also an argument that married men need prostitutes the most, and there is thus a utilitarian argument for allowing them to violate their marriage contracts without repercussions.)

Thirdly, the ability to purchase sex cheaply (or for market value, anyway) makes it difficult for non-prostitute women who generally want to retain a monopoly on sex. That is, during a marriage, women can use the provision of sex, or more or less interesting sex as bargaining leverage in marital negotiations. Unmarried women want to reserve sex as an incentive for men to be in relationships with them.

The ability of non-prostitute majority to retain sex as leverage should outweigh the benefit to the few women who are attempting to put sex on the free-market. So the argument claims that it harms the set of female non-prostitutes.

Then again, one could argue that restaurants do the same thing, by making good food something that is commodified, and mothers and wives and girlfriends no longer have a monopoly. But there are too many disanalogies for this to be worth pursuing.

Again, I think that all the above arguments are not quite good, but I leave it as an exercise to the reader to find the problems.