Andy went on to state that as an adult, he had become an advocate on behalf of other sex workers who were subjected to imprisonment or other punishment for engaging in work that had basically been forced upon them. Hinojosa prompted him to say that sex work was a private "choice" and should be decriminalized on that basis (arguably the precise opposite of what he was actually saying, emphasizing as he did the element of unjust compulsion that led people into sex work). He rejected her paraphrase of his position, saying that what he meant was that criminalization was useless in itself-- that it achieved nothing beyond crowding our prisons, while it left the real sources of the problem-- poverty chief among them-- untouched.
His perspective seems either entirely correct or fatally misguided, depending on how we interpret the truncated and therefore cryptic interview. The view Andy seemed to be expressing, at least toward the end of the segment, is a much-needed one: that prosecuting sex workers is deplorable, that it punishes the victims, and that it is entirely the wrong way to combat sex trafficking. The view Hinojosa seemed to think he was saying, however, or seemed to wish he was saying, was rather different: I took it to be the view that prostitution is an economic relation like any other and should basically be left alone or even sanctioned by the state. This latter view is dangerous. To the extent that it has become a widespread one on the Left, even in my short lifetime, it constitutes a tremendous historical wrong-turn for that movement: a blind alley for the Left that will carry it very far from its own goal of social justice. If we don't distinguish very carefully between these two views-- what Andy seemed to actually say and what Hinojosa wished him to say-- we will be on a train to nowhere good, and I am going to find myself in a position that I, as a leftist, find very disagreeable-- that of standing astride the tracks, Buckley-esque, and crying "stop."
The generous reading of Andy's claims is that he was trying to say that the victims of the sex trade are primarily the women and men-- and girls and boys-- who are traded. This seems to me rather indisputable. The fact that it is still primarily sex workers who are punished by the state for prostitution is therefore an appalling instance of blaming the victims.
The practice is doubtless a holdover from the days when prostitution was ranked as a "vice," a so-called "victimless crime," and in which the chief problem with its practice was thought to be the corruption it bred among the rest of the citizenry, and not its effect on its workers. By the logic of the Victorian Double Standard, in fact, if there were any victims of prostitution, it was the men who visited brothels and not the women they bought and sold! "Boys will be boys," after all-- the task of controlling their appetites was left up to women, according to the Victorian mentality, and those women who instead profited from the male sexual urge were taking unfair advantage. Victorian prostitutes were therefore doubly victimized: first by the exploitation of their bodies, second by the moral sadism of official institutions. Few thought much of stigmatizing these women (and men, to a lesser extent) and of using them as pawns in private morality fables. The great liberal PM William Gladstone developed a chaste obsession with female prostitutes, as recorded in his diaries, and was in the habit of picking up such women on false pretenses and hectoring them about their lifestyle. (Gertrude Himmelfarb, from whom this example is drawn, thinks it is a sign of our own modern decadence that we read into such habits sexual perversity rather than moral earnestness. I will let the reader be judge).
The question of the legitimacy of "morals legislation" (laws which try to regulate behavior even in cases where no one is directly harmed, apart from the transgressor) need not detain us. Prostitution is not a "victimless crime," on a par with drug use, etc., so it must be discussed in a different manner. The fact that we still treat it under the heading of "vice" alone distorts the issue. Sex trafficking, at least, we know is more than this. It has pimps who often resort to kidnapping and physical violence to ensure the compliance of prostitutes. It has johns who give them money to continue to do so. It also has victims-- the people who are trafficked, many of them children or teenagers (perhaps 100,000 trafficked juveniles in the U.S., all told). The story Andy told is a familiar one-- alone and without options, he fell prey to adults willing to take advantage-- adults who offered him "protection" in exchange for repeatedly raping him. Why on earth should Andy be the one, in this situation, who is prosecuted?
Imagine for a minute that our society decided (plausibly) that it does not do enough to prevent rape. As a result, it decides to pursue a policy of deterrence, and henceforth makes it a crime to be raped, as well as to rape. And suppose that the vast majority of rape cases that were actually prosecuted targeted the rape victims, rather than the perpetrators. Would this not appear an insane violation of human decency and common sense?
I raise the point, however, not by way of analogy-- I bring it up because this is exactly what we now do, under our current regime of combatting sex trafficking, which often prosecutes juveniles for prostituion. Our law rightly regards any form of sexual contact with a minor as sexual violence. The trafficking of minors is therefore rape, by definition. The fact that most children and adolescents who are trafficked are also the victims of even more physical violence and coercion in the process only simplifies the matter. Yet in the United States today, minors are not exempt from anti-prostitution laws. Juvenile victims of sex trafficking are frequently prosecuted, in fact, for breaking such laws!-- which makes other victims of trafficking less likely to speak out publicly or to ever manage to break out of their situation. To repeat: we are punishing the victims of rape for the crime that was done to them.
Of course, not all sex trafficking concerns minors, after all, and proponents of decriminalization only favor making adult prostitution legal while continuing to prosecute the pimps and johns-- and not the victims themselves-- involved in trafficking children. Most would no doubt say, in fact, and with some good reason, that legalizing adult sex work would make child trafficking easier to combat, and would eliminate or reduce the role of the pimp, since sex workers would be able to pursue legal protections, rather than remaining in the shadows where extreme abuses can proliferate. The argument is that criminalizing an already widespread behavior only ends up empowering organized crime-- which preys on unprotected people, such as drug addicts, habitual gamblers, and prostitutes, who find themselves outside the law. It is a pretty sound one.
But why reduce our choices to two: either complete decriminalization or punishing the victims? Why not pursue a strategy of protecting victims and punishing perpetrators, as we try to do in the case of any other crime? Here, Sweden offers a good role model, as it usually does for those of us who would prefer to live neither in Amsterdam nor in the jail-happy US system. According to Nicholas Kristof, "The Swedish model, adopted in 1999, is to prosecute the men who purchase sex, while treating the women who sell it as victims who merit social services [...] It’s not a panacea, but cracking down on demand seems a useful way to chip away at 21st-century slavery." Apart from Kristof's apparent assumption here that it is always men who buy sex and always women who sell it, this is the best statement of what should be common sense on this issue that I've come across.
For most of my life, I supposed that this was the typical stance of people on the Left. Now that more thoroughgoing decriminalization is starting to attract vocal and powerful supporters among their ranks, however, I can no longer take this for granted. This fact is both baffling and disturbing. It reflects a deeper confusion -- a sickness in our society-- about what liberalism, human rights, and justice for women actually mean.
To put the issue in the most crudely instrumental terms available, sex work is a form of labor contract. One party agrees to perform some sexual act in exchange for money or other commodities. In the abstract, it is an exchange between equals-- between autonomous agents who both act in their self-interest and both stand to gain something from the encounter. Classical economic theory would have no basis to object to such trades, other than by invoking the idea of morals legislation, which I would like to avoid for now (not because I disagree with it in every case, but because it is not necessary to the point I'm making).
Libertarians would have especially little grounds for objecting to prostitution, as they tend both to be hostile to morals legislation and to uphold any form of labor contract, so long as it was drawn up by nominally equal, consenting parties. The truly thoroughgoing libertarian would regard it as legally permissible for people to sell themselves into bondage, for instance, or into permanent indenture (see a post by Mike Konczal for more on this point). In a debate between Freddie DeBoer and Connnor Friedersdorf on bloggingheads.tv, DeBoer asked his opponent whether, according to the lights of libertarianism, the state should recognize the validity of a labor contract which had a "Fuck me or you're fired" clause in the fine print. Friedersdorf hemmed and hawed, but his libertarianism gave him little reason to say it shouldn't.
People on the Left tend not to be convinced by such a stance toward contracts. They often point out that the legal equality of parties to a contract is not the same thing as equality of status in the wider society. The employee is almost never in the same position of power as the employer-- she or he is at the latter's mercy, to some extent-- and that extent usually depends on the amount of legal protections labor already enjoys in a given society. And these are precisely the protections libertarians are always at pains to undermine.
In an infamous 1905 decision, the Supreme Court struck down a law mandating a 10-hour work day in New York because it believed the law violated certain legal rights-- but it was not the rights of the employers the court claimed to be defending, you must understand-- it was the rights of labor-- the "right," in short, to subject oneself to an onerous labor contract that exacted 12 or 14-hour days out of oneself, if one so chose.
The law did not recognize at that time-- and to a lesser extent still fails to recognize today-- that material necessity is a form of compulsion. It can drive a person to submit to intolerable conditions of life simply because this is the only way to draw a paycheck. The notion that employer and employee enjoy real equality of status and not just equality on paper is an odious fiction. It is all the more devious and insipid in that it invokes the "autonomy" and "dignity" of workers even as it destroys the legal protections they enjoy-- and all in the name, laughably, of "equality." Anatole France has summarized this nicely, in a world-class bit of snark that was once read out from the bench of the Supreme Court in a famous affirmative action case:
"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."The reason why feminists and liberals and socialists all press for protections for workers is that labor contracts are not actually drawn up by equal partners. That's especially why feminists emphasize the importance of combatting sexual harassment in the workplace, which is recognized to be an especially degrading and humiliating expression of the power imbalance between worker and boss. That's why liberals and feminists regard it as self-evident that "Fuck me or you're fired" contracts should not be upheld as valid ones.
But-- and here's the important point-- what is prostitution if it is not a "Fuck me or you're fired" contract in its most direct and unvarnished form? Talk about sexual harassment in the workplace! Why should we object to employers extracting sexual favors from employees in other settings but not in this one?
Prostitution, perhaps more than any other form of employment, is agreed upon by partners who in almost every case are in positions of unequal power. Why on earth would liberals reject the "Fuck me or you're fired" contract in other instances, or the institution of voluntary slavery, or those notorious "billion year contracts" that the Church of Scientology makes its victims sign-- but not reject prostitution?
Martha Nussbaum argues: "When prostitution does not involve coercion or force or the use of children, the most urgent issue is the poor employment opportunities for working women and their lack of control over the conditions of their employment. The legalization of prostitution would likely make things a little better for women who have few options to begin with."
Think about how incredibly bizarre this is for a moment. Suppose Nussbaum was addressing the example of a major U.S. company which contracted out to sweatshops in the Third World-- shops where workers labored for sixteen hours a day with no medical leave or safety protections and where gross sexual harassment of employees was a daily occurrence. Would Nussbaum say something like this in response to these conditions?: "When such workers have contracted with the company in a way that does not involve coercion or force or the use of children, the most urgent issue is the poor employment opportunities these workers otherwise face [...] The legalization of such sweatshop contracts would likely make things a little better for workers who have few options to begin with."
Something tells me she wouldn't say this. Or if she would, very few liberals and leftists would proceed to follow her down that rabbit hole. Yet, are we supposed to believe that these sweatshop conditions are more degrading than the work of prostitutes?
It is worth considering, as an aside, that in the state of Nevada, where prostitution is legal, it is often the political Left which condemns it, on feminist grounds, while it is the political Right which upholds its legality. It would seem that the forces of capitalism can get along very well with prostitution. It's good for business.
To summarize: the abolition of prostitution should be our goal-- but not by criminalizing its victims, the women and men who are compelled to engage in it. We must also be careful not to stigmatize the victims in any way. One way to achieve this would be to recast the abolition of the sex trade as a movement for the protection of workers-- something akin to the campaign for the 8-hour work day, which the labor movement still recalls with pride.
Obviously, this abolition should be only one plank of a larger liberal agenda which seeks to remove the material deprivations and inequalities that make material compulsion possible in the first place. But in the meantime, continuing to make it illegal to purchase sex (to "employ" a prostitute, in other words) will provide some minimal protection for the poor from a particularly extreme form of exploitation to which they would otherwise be vulnerable. It is the same with banning sexual harassment or the twelve-hour workday. Such bans in themselves don't singlehandedly do away with the inequities which lead people to submit to such conditions. But they provide some small guarantee that workers at the bottom of the heap won't be forced to sell themselves into complete degradation. The humane approach to abolishing prostitution would achieve something similar.
This approach must of course be contrasted with our current regime, which will only continue to victimize those who are already the victims-- and which will make it impossible for them to ever escape from the "contracts" under which they now suffer.