Monday, February 17, 2014

Sex Work and the Left

Driving in the car last night I caught an episode of Latino USA on NPR which concerned (among other things) sex trafficking in the United States.  When I tuned in, the host, Maria Hinojosa, was speaking to a pseudonymous male sex worker and activist who was making a broad case for de-criminalizing the sex trade-- though decriminalizing exactly what and for whom was not entirely clear from the brief interchange.  The activist, who went by Andy, began by stating that as a teenager, he had been compelled by circumstances to seek "protective" sexual relationships with adults-- in exchange for money.  He wasn't clear about what those circumstances were, but we can imagine them -- homelessness, isolation, abusive parents-- the lack of any adult figures, in short, who are supposed to protect children in our society without demanding sex (rape, let us be clear) in exchange.

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, 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.


  1. You say that you don't want to reach the issue of morals legislation, but it's not clear to me that you can avoid it. First, I think an advocate of legalizing prostitution could concede your implicit point that economically coerced sex (rape) is wrong and simply argue for very heavy state regulation of a legal sex trade that goes far beyond the way most other professions are regulated. In fact, they might not even have to go that far. Presumably you don't think that extremely dangerous occupations like mining, firefighting, some forms of police work, etc. should be banned outright, even though surrounding economic conditions and labor laws aren't such as to render the choice to enter them fully free or even as free as it can be made. This is presumably because you think these occupations are important enough that we have to tolerate some injustice under present conditions to ensure that they can still be performed, even though coercing someone into taking life-threatening risks on a daily basis and coercing someone into sex are at least comparable wrongs.

    Similarly, an advocate of decriminalizing prostitution could argue that the pragmatic benefits a legal sex trade subject even to current American labor law delivers (easier to focus on child trafficking, freeing up police resources to target violent crime, career options for women who have few others, pleasure for customers) are big enough to justify permitting it in roughly the same way that those other jobs may justifiably be permitted. Maybe you'd want to contest the cost-benefit calculation, but it seems to me that it's difficult to do so without invoking the idea that it's intrinsically degrading to pay and be paid for sex, regardless of whether coercion's involved.

  2. Hi Ajay. I certainly do believe that it's "intrinsically degrading to pay and be paid for sex," which I don't think will surprise you. There's a separate issue, however, as to whether to state should use its coercive machinery to prevent people from doing something when it's a degrading but freely chosen behavior. This is what I meant by the "morals legislation" question-- one I wanted to avoid because I'm somewhat agnostic about it. In other words, supposing we lived in a perfectly socially just community of equals in which the prostitution contract is drafted by consenting equals. Should prostitution still be illegal in such a scenario? I would of course still object on moral grounds to the idea of treating someone as a sexual commodity. But I'm skeptical of the idea that the state should be called in, given that, as we both agree, I'm sure, its capacity to exercise violence should be kept within very strict limits. Anyways, since we aren't about to live in a perfectly socially just society, however, I felt justified in leaving the "morals legislation" question aside.

    By leaving this question aside, however, I was not in any way attempting to suggest that we can leave aside the question of whether the sex trade is morally objectionable in itself. My whole argument still depends on the claim that asking someone to sell you their sexuality is an especially egregious violation. That's why I take it for granted that the prostitute's work compares unfavorably with the sweatshop scenario. That's why I refer to it as an "extreme form of exploitation," etc.

    By disregarding the "morals legislation" question I was not trying to disregard the moral question about the nature of trading sex, and I hope my stance on that point was sufficiently evident from the piece above.

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  4. Thanks for the reply - I think it's clarified your argument for me, though I perhaps should've gotten that from the post, and I apologize for what I now take to be a misunderstanding. Here's how I understand your argument now:

    P1: The employment relationship is intrinsically coercive.
    P2: At a minimum, it's wrong to coerce people into doing intrinsically degrading things.
    P3: Having sex with someone for money is intrinsically degrading.
    C: We should criminalize the solicitation of prostitutes.

    I think the misunderstanding came about because we understand the term "morals legislation" a bit differently. I was implicitly hearing it to mean legislation that takes into account intangible or moral harms like degradation, even if it doesn't treat the presence of such harm alone in the absence of coercive imposition as a reason for imposing legal sanctions. However, I notice now that you explicitly define morals legislation in the post as legislation that treats the harm suffered by a person who acts immorally as a sufficient basis for imposing legal sanctions. (Not that this is a crazy or unusual definition, but it wasn't the one I normally have in mind and I didn't read closely enough to notice it.) Thus, your argument does reach the issue of morals legislation in my sense but not in yours. My thought was that you were trying to avoid the issue by making the following argument:

    P1: Coercively extracted sex (rape) is clearly something that everyone correctly thinks should be criminalized.
    P2: The employment relationship is coercive.
    L (from P1 and P2): Prostitution involves rape.
    C: We should criminalize the solicitation of prostitutes.

    The basic point of my initial reply was to suggest that even most people who think the employment relationship is coercive don't think it's so coercive as to justify your conclusion without appeal to the intrinsic badness of prostitution, but you appear to agree with that. Sorry again for my poor reading.

  5. For what it's worth, my view of the underlying issue is that if we lived in a fully just society where prostitution had long been legal and a proposal to legalize it was put forward, I would oppose the proposal because of, inter alia, our shared wariness of state violence. However, I think that law and morality interact in complex ways such that a longstanding legal prohibition on a practice can sometimes come to be a crucial support for moral norms which condemn it, and that something like this is true for prostitution bans in our society. If we lived in a fully just society that was like ours in this way, I would support keeping the longstanding prostitution ban in place because I think the moral norm forbidding prostitution is very important to preserve. I'd try to mitigating the costs by making enforcement relatively weak and focused on consumers.

  6. Perhaps I could summarize my position like this:

    1) Prostitution represents a uniquely objectionable type of exchange because it makes an especially private and intimate feature of a person-- her or his sexuality-- into a commodity, which is de-humanizing in a way that other types of labor exchanges are not, at least not to the same extent.

    2) If people freely consent to submit to this behavior, however, there is a plausible case to be made that the state should not intervene, because the state's coercive power should be minimized, except to the extent it is used to protect people from other forms of violence and to defend their basic rights. This is, at any rate, the "morals legislations" question to which I did not want to stake a claim in an essay mostly concerned with other things.

    3) Since people consent to this behavior in our present society in conditions of inequality and material deprivation, however, and not in conditions of perfect freedom, we are justified in seeking to abolish it, regardless of how we answer the question in (2).

    4) We should abolish it, rather than dangerous work like fighting fires which people also consent to in an unequal society, because it is worse than these others-- because of (1), in short. So you are right, the argument does depend on making a moral claim (1) about sex trade in itself, but I was not at all trying to deny this by putting off the question in (2).

  7. Published that before reading your last two remarks-- it looks like we understand each other now.

  8. Also, I'm willing to accept that your definition of morals legislation could be the more established one, as the lawyer in the room. The term doesn't come up a lot in theology.

  9. Looking back over it-- it seems part of the confusion might come from the analogy about laws against rape. By the analogy I did not mean to imply that we should view prostitution as the same thing as rape or that we should see material compulsion in the employment relation as equivalent to the type of violence exercised by someone who rapes someone. The point of the analogy, rather, was two-fold: first, it was simply to present an "imaginary" situation that was clearly intolerable to our consciences, and then to reveal that the so-called imaginary situation was actually our current one with regard to prosecuting juvenile victims of sex trafficking. The second reason for using the analogy was simply to illustrate the point that we don't usually assume, when faced with a crime that has victims, that we must either criminalize both violators and victims or else decriminalize the whole activity, so why should we assume this in the case of prostitution?

    Looking back, I'm not sure I used this analogy in a very clear way, and I perhaps gave the impression it had something to do with the argument about labor contracts in the second half of the essay, which it did not-- or was not supposed to.

    At any rate, it sounds like we understand each other now, but I wanted to offer that further clarification.