Why is prostitution illegal?

The law, lawyers, and the court.
March 10 2008 7:12 PM

Why Is Prostitution Illegal?

The oldest question about the oldest profession.

Read more of Slate's coverage of the Eliot Spitzer prostitution scandal. Emily Bazelon was online on March 13 to chat with readers about this article; read the transcript.

When he was attorney general, Eliot Spitzer had no trouble going after a "sophisticated prostitution ring." As governor, he apparently had no trouble patronizing one. The hypocrisy speaks for itself. But what about the oldest question about the oldest profession: Why, exactly, is prostitution illegal?

The case for making it against the law to buy sex begins with the premise that it's base and exploitative and demeaning to sex workers. Legalizing prostitution expands it, the argument goes, and also helps pimps, fails to protect women, and leads to more back-alley violence, not less. This fight over legalization has been waged in the last few years over international human-trafficking laws and proposals to make prostitution legal in countries like Bulgaria, a movement that the U.S. government helped defeat. In 2004, the federal government expressed its position: "The United States government takes a firm stance against proposals to legalize prostitution because prostitution directly contributes to the modern-day slave trade and is inherently demeaning." The government also claims that legalizing or tolerating prostitution creates "greater demand for human trafficking victims." And yet, prostitution is legal in parts of Nevada, a companion to other cherished vices.

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You don't have to be a moralist or a prude to buy the argument for banning prostitution. But if you're so inclined, it's an easy one to take apart. Martha Nussbaum, a law and philosophy professor at the University of Chicago, argues that lots of work involves the sale of bodily services and that lots of the work that poor women do involves bad working conditions. For her, it's all about context—there's a big difference between a street worker controlled by a pimp and a high-end call girl who picks her own clients, and the real question is how to increase poor women's access to decent and safe work in general. Legalizing prostitution "is likely to make things a little better for women who have too few options to begin with," Nussbaum writes.

The extremely pricey outfit Spitzer apparently used looks like an example of the high-end trade Nussbaum would distinguish from low-rent street work. The further defense of such escort services is that prostitution is inevitable and that conditions will be better for everyone all around if it's regulated (more condoms, fewer beatings). This parallels the argument against Prohibition or in favor of drug legalization: Illegality puts the bad guys and their guns in control. Women who fear prosecution can't go to the police for help. Better to give women more recourse to head off abuse and even inspect brothels for health-code violations.

Would legalizing prostitution increase trafficking? Not necessarily. "By this logic, the state of Nevada should be awash in foreign sex slaves, leading one to wonder what steps the Justice Department is taking to free them," writer David Feingold noted dryly in Foreign Policy in 2005. Countries in which prostitution is legal—Australia, Germany, the Netherlands—aren't cesspools. On the other hand, they haven't seen the demand for prostitution drop off, either, and sometimes it rises.

That's a disappointment for advocates of legalization, and lately there's another favorite model. In 1999, Sweden made it legal to sell sex but illegal to buy it—only the johns and the traffickers can be prosecuted. This is the only approach to prostitution that's based on "sex equality," argues University of Michigan law professor Catharine MacKinnon. It treats prostitution as a social evil but views the women who do it as the victims of sexual exploitation who "should not be victimized again by the state by being made into criminals," as MacKinnon put it to me in an e-mail. It's the men who use the women, she continued, who are "sexual predators" and should be punished as such.

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