More On Decriminalization

Kerry Howley responds to my post on feminist-libertarian arguments for legalizing prostitution. Given Amanda‘s (also quoted by Ann) take, she has a fair point in noting that my isolated quote created a misleading impression about her post. I definitely didn’t read Howley as ignoring the realities of prostitution or focusing on (what she concedes to be unusual) women who become sex workers because they “love sex enough to make a career out of it.” Rather, I took her to be arguing that an additional problem with criminalization is the reinforcement of stereotypes about female sexuality and the problems inherent in legally constituting sex workers as victims. I don’t think either of these are trivial concerns by any means. I still don’t think, however, that they would be in and of itself sufficient reasons to legalize prostitution. I’m not sure that the constitutive effects are that strong in this case (although it’s a very difficult question to answer) and on the more tangible question I’m very much unconvinced that criminalization in itself is a major variable in pushing the most desperate women into sex work. (If data were to show that prostitutes in Nevada had a significantly different class profile than prostitutes in other states, I would re-examine the question.) And while the law is a crude instrument that in some measure has to treat differently situated workers similarly, this is something I’m willing to live with if the benefits outweigh the costs. The maximum hours laws struck down in Lochner may well have genuinely restricted the freedom of a few bakers who weren’t financially desperate and fully understood the risks and would have chosen to work the overtime even if they had more bargaining power, but when the health of workers is involved it’s fair for the state to base regulations on the rule, not the exception.

So I would be willing to support the criminalization of prostitution if I thought it worked (i.e. that it generally protected sex workers from exploitation.) Where I still pretty much agree with Howley’s bottom line is that I don’t think it does, and that singling out sex workers for unique “protection” (with futile attempts to ban some jobs outright rather than intelligent regulation) is difficult to justify without smuggling patriarchal Sex Is Sacred, Especially Where Virtuous Women Are Concerned assumptions into the argument. I still think the best alternative would be for states to experiment with different decriminalize-and-regulate approaches, backed up by strong federal enforcement of anti-trafficking measures. And I think we can all agree that he status quo in most states — the arbitrary enforcement of outright bans with more focus on sex workers than their clients — is indefensible.