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.

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

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.

According to this Web site  for the Women's Justice Center, Sweden's way of doing things is a big success. "In the capital city of Stockholm the number of women in street prostitution has been reduced by two thirds, and the number of johns has been reduced by 80%." Trafficking is reportedly down to 200 to 400 girls and women a year, compared with 15,000 to 17,000 in nearby Finland. Max Waltman, a doctoral candidate in Stockholm who is studying the country's prostitution laws, says that those stats hold up. He also said the police are actually going after the johns as ordered: In 2006, more than 150 were convicted and fined. (That might not sound like many, but then Sweden has a population of only 9 million.)

For feminists like MacKinnon (with whom Waltman works), this sure looks like the solution: Go after the men! Take down Eliot Spitzer and leave the call girls alone! On the other hand, the group SANS, for Sex Workers and Allies Network in Sweden, doesn't like the 1999 law. The network says it has brought more dangerous clients and more unsafe sex, rather than the other way around. Waltman says that there's a lot of debate in Sweden because some people inside and outside the industry still want straight-out legalization but that no systematic studies have shown that the law has made sex work worse or riskier.

In the end, this seems like the most salient question: Forget Eliot Spitzer. Shouldn't prostitution laws come down to working conditions—and the laws that would lead to better ones for sex workers? According to a recent working paper (PDF) by economist Steven Levitt and sociologist Sudhir Venkatesh *, despite all the fighting and all the preaching, we apparently don't know that much about the specifics of the structure of the sex market—how much prostitutes make on average, how many tricks they turn a year, how frequently they and their pimps and johns actually get arrested.

To start filling in the gap, Levitt and Venkatesh looked at data from the Chicago Police Department. They found that women working the streets were making $27 an hour but less than $20,000 a year (they don't log a lot of hours). The risks of the trade were serious: "an annual average of a dozen incidents of violence and 300 instances of unprotected sex." There was also a "surprisingly high prevalence of police officers demanding sex from prostitutes in return for avoiding arrest." That looks like another argument against the bans on prostitution—presumably women wouldn't be caught in this particular trap if they weren't worried about going to jail in the first place. Levitt and Venkatesh also offer up this statistic: Prostitutes get arrested about once per 450 tricks, and johns even less frequently. Two lessons here: 1) A law that isn't being enforced much may not be worth having; and 2) Eliot Spitzer looks really, really unlucky.

Correction, March 11:The original sentence incorrectly identified Sudhir Venkatesh as an anthropologist. (Return to the corrected sentence.)