Prostitution has long been considered a lewd and blasphemous act. Even as more progressive attitudes have become mainstream, prostitution is still criminalized in almost all states in the United States. Zhang’s piece addresses and rebuts the three most common arguments for criminalizing prostitution and calls for the decriminalization of prostitution to regain liberty and autonomy. This editorial was written for Professor Christopher Kutz’s and Haley Anderson’s Spring 2024 seminar, “Philosophy of Law.”
When my friend told me that she was paying off the tuition for her PhD program with the money she earned working as an escort, I was shocked. I had never considered prostitution as compatible with self-empowerment.
In the past, prostitution was considered a lewd and blasphemous act, inconsistent with female virtues such as chastity and decency. Even though that oppressive era has passed, our culture has internalized the longstanding stigmatization around prostitution. In almost all states in the United States, prostitution is criminalized. However, criminalizing prostitution not only backfires as a solution to various problems, but it also undermines individual liberty and autonomy in making decisions about one’s body.
What are the common arguments against prostitution?
Prohibitionists often raise three types of arguments—about exploitation, public health, and degradation—but all three are shortsighted.
First, some worry that decriminalizing prostitution could expose disadvantaged groups to exploitation, such as sex trafficking, violence, and coercion. While these are real-world problems, criminalizing prostitution is far from the solution. Banning prostitution doesn’t mean eliminating it. We shouldn’t be oblivious to the fact that prostitution still exists in the black market despite prohibitions.
These sex workers are more vulnerable because they cannot resort to the law to protect themselves against abusive treatment for fear of prosecution. By contrast, numerous studies have shown that decriminalizing prostitution would bring the industry into the realm of law, redirect attention from prosecuting commercial sex to prosecuting the crimes that are the actual causes of the harm,[1] which could prevent sex trafficking, violence, and other kinds of danger.[2]
Second, some are concerned that legalizing prostitution would cause public health issues, such as HIV transmission. Studies have shown the opposite. A 2018 review of over 130 studies discovered that repressive policing practices actually increase the risk of HIV infection and other sexually transmitted diseases, as protections like prophylactics could be used against sex workers as evidence in court.[3] The right way to prevent and solve public health issues is by providing a better healthcare system and encouraging risk reduction strategies.
Third, prostitution is critiqued as objectifying individuals, rendering them to mere means rather than ends in themselves. Prohibitionists see prostitution as a form of “paid rape,” arguing that banning prostitution is “saving” sex workers from these coercions.[4]
However, taking away the choice of prostitution is, itself, paternalistic and patronizing. It assumes that some people are not capable of making rational and responsible decisions, and that therefore the state should decide for them.[5] Furthermore, we all treat other people as means to some degree. If I pay someone to cut my grass, I am also paying for a certain service provided by another’s physical exertion. But the process of getting consent, which may result in commercial transactions, is a recognition of one’s autonomy as a human being—as an end and not as a mere means.
Is the state justified in interfering with private decisions?
In the realm of criminal law, we need to ask another important question: Does the state have the right to interfere with individuals’ private decisions about what to do with their bodies?
Some might argue that the law should match morality and sanction immoral behaviors.[6] Indeed, it is a tempting position to take, as we tend to believe that it is the call of justice to discourage immoral acts in society. However, people’s moral views are diverse and pluralistic. They not only vary among individuals but also change with time.
It is thus impossible and unhealthy for a society to legally enforce one specific view and stymie others. For one thing, we cannot be sure that the morality enforced is correct, as history has proven time and time again. For another, giving the state the power to interfere with individual liberty and to dictate individual actions would greatly undermine the foundations of democracy.
How, then, do we decide whether an act should be criminalized? The brilliant mind, John Stuart Mill, provided us with an insightful answer back in the nineteenth century: by evaluating the harm of the conduct. For Mill, the only justification for interfering with the liberty of an action is self-protection.[7]
For a state to be justified in reaching into individuals’ personal lives and criminalizing private conduct, it must be preventing harm to others. Since the selling or buying of sex services is an action between two individuals with mutual consent, taking place in a private space and having no foreseeable impact on other parties, the state should not have the right to prohibit the action under criminal law, independent of morality.
Some argue that private conduct can also cause harm to society. High Court Judge Patrick Devlin, for example, contends that since shared morality is the binding force of society, private conduct that infringes upon morality is putting society at risk of collapse and should therefore be punished.[8] Indeed, morality does help keep society together.
However, Devlin neglects the plurality of values and lumps morality into one simple, universal consensus. On top of that, he fails to recognize the sociological pattern of evolving morality throughout history. Changes stir up debates, and what comes after is nearly always a more inclusive and less oppressive society—not the apocalypse that Devlin fears.
It’s time to solve the problem and take our autonomy back!
There are around two million sex workers in the United States, generating a total of more than fourteen billion dollars.[9] If prostitution is decriminalized and becomes taxable income, the extra government revenue could be used to provide health care benefits for sex workers to ensure their mental and physical health, fund programs to eliminate human trafficking, and set up departments for regulating and standardizing the industry. This is how we should solve “the problem” of prostitution—not by criminalizing it and turning a blind eye, but rather by ensuring safety and fair treatment and preempting social issues with welfare safety nets.
By decriminalizing and regulating prostitution, we can not only maximize overall social welfare but also make sure individuals’ bodily autonomy and liberty are respected—not paternalistically denied. No one should be criminalized because they engage in consensual sexual activities, whether money is involved or not. This effort to keep the state away from people’s bedrooms and individuals’ private decisions is about more than just bedrooms; it is about championing our own liberty and autonomy.
[1] Crichton F. (2015, August 21). Decriminalising Sex Work in New Zealand: Its History and Impact. openDemocracy. https://www.opendemocracy.net/en/beyond-trafficking-and-slavery/decriminalising-sex-work-in-new-zealand-its-history-and-impact.
[2] Law, S.A. (1999). Commercial sex: Beyond decriminalization. Southern California Law Review, 73, 526–610. Manch T. (2018, April 17). No Trafficking in NZ Sex Industry but Migrant Abuse Is Widespread, Report Finds. Stuff. https://www.stuff.co.nz/national/crime/103129627/no-trafficking-in-nz-sex-industry-but-migrant-abuse-is-widespread-report-finds.
[3] Platt L., Grenfell P., Meiksin R., et al. (2018, December) Associations Between Sex Work Laws and Sex Workers’ Health: A Systematic Review and Meta-Analysis of Quantitative and Qualitative Studies. PLOS Medicine 15(12), https://doi.org/10.1371/journal.pmed.1002680.
[4] Matsubara H. (2006). The 1910s Anti-Prostitution Movement and the Transformation of American Political Culture. Japanese Journal of American Studies. no. 17: 53-69, http://www.jaas.gr.jp/jjas/PDF/2006/No.17-053.pdf.
[5] Shiffrin, S.V. (2000). Paternalism, Unconscionability Doctrine, and Accommodation. Philosophy & Public Affairs, 29(3),Princeton University Press.
[6] Mill, J.S. (2013). On Liberty. In J. Feinberg, J. Coleman, & C. Kutz (Eds.), Philosophy of Law (9th ed., pp. 445-446). Cengage Learning. Original work published in 1859.
[7] Ibid.
[8] Devlin, P. (2013). The Enforcement of Morals. In J. Feinberg, J. Coleman, & C. Kutz (Eds.), Philosophy of Law, (9th ed., pp. 469). Cengage Learning. (Original work published 1965)
[9] Sawicki, D. A., Meffert, B. N., Read, K., & Heinz, A. J. (2019). Culturally Competent Health Care for Sex Workers: An Examination of Myths That Stigmatize Sex-Work and Hinder Access to Care. Sexual and relationship therapy: journal of the British Association for Sexual and Relationship Therapy, 34(3), 355–371. https://doi.org/10.1080/14681994.2019.1574970.