Legalize Prostitution

by Charles C. W. Cooke
We may not like the oldest profession mixing with the second-oldest, but it’s no reason to ban the former.

Judging by the frequency with which the epithet has been tossed around since Sunday afternoon, it is apparent that, in the collective imagination of the New York City press corps, Eliot Spitzer remains “disgraced.”

I certainly don’t disagree with this appraisal, but I do have a quibble: If and when the details of Spitzer’s disgrace are adumbrated, the focus seems to fall on his having used prostitutes and not on his having betrayed his wife. To my eyes, this reveals a spectacular misalignment of priorities. What Spitzer did wrong — morally, at least — was to cheat on a woman to whom he had promised his loyalty, his life, and his love. Except insofar as it was a violation of the law, it matters little that he forsook Mrs. Spitzer with a “high-class” prostitute who charged him $1,000 a go. A liaison with the girl next door would have had the same effect.

As a matter of general principle, the proscription of prostitution — and our insistence on maintaining laws to that effect — continues to be a mystery to me. Sex remains one of the few things that a free person may give away gratis but which he is forbidden from selling. It is perfectly legal to sleep around in the United States — subsidized and panegyrized, even — and, as the growing parade of octogenarian billionaires’ wives demonstrates, it is both permissible and socially acceptable to sleep with someone in pursuit of regular material comfort. Yet it is strictly felonious to have sex with someone else in direct exchange for cash.

At least that is illegal unless you film and distribute yourself doing it, in which case it is not only legal but profitable too. It is logic of this questionable quality that has led to the perverse state of affairs in which, under English law, prostitution itself is not a crime, but “soliciting” a prostitute or living off earnings gained through prostitution are. While the laws surrounding the issue remain such a dizzy and irrational mess, drawing a clear moral line through the morass remains nigh on impossible.

Nevertheless, people try vigorously. To broach this topic in polite company is to invite someone, invariably under the mistaken impression that this constitutes a hammer blow, witlessly to parrot the banal old line that “nobody grows up wanting to be a prostitute.” At best, this is a red herring. Certainly, few people grow up wishing to be prostitutes. But there are an awful lot of careers that escape the dreams of children. Many vegetarians mature with no intention whatsoever of becoming butchers and Christians rarely spend their childhoods wishing devoutly for a vocation as an imam. The material question here is not whether one could foresee oneself ending up in an undesirable line of work, but whether or not that line of work is so undesirable that it should be prohibited by law.

On this, I am with Cornell’s Sherry F. Colb, who has argued for legalization on the following grounds:

Prostitutes are not committing an inherently harmful act. While the spread of disease and other detriments are possible in the practice of prostitution, criminalization is a sure way of exacerbating rather than addressing such effects. We saw this quite clearly in the time of alcohol prohibition in this country.

It is no accident that prostitution, which was almost uniformly legal in the United States from the period of colonization up until the start of the 20th century, was banned in almost every state within the same five-year period during which the Woman’s Christian Temperance Union managed to convince the nation that alcohol should be constitutionally outlawed.

As maxims go, that prostitution is the “world’s oldest profession” is one of the more historically accurate. The practice was common in ancient Israel, rife among the Aztecs, de rigueur in both ancient Rome and Athens, customary with the Oirans in Japan, and, in various forms, pretty much universal throughout human history. In the Medieval period, the Catholic Church simultaneously condemned and tolerated the practice in Europe because the hierarchy observed that it cut down on the rates of sodomy, rape, and masturbation. If the 15th-century Catholic Church can observe such a distinction on the grounds of practicality, presumably 21st century Americans can, too.

Now, society may well elect to disapprove of prostitution. In fact, I rather do myself. But, then, while I have no desire to inject heroin into myself either, I reserve that right as a free man must. Indeed, this is one instance in which the pervasive pro-choice battle cry, “My body, my choice!” actually makes some sense. When wielded in defense of abortion, it is little more than a dysphemism, designed to distract from the fate of the other body being discussed. With prostitution, there is no such objection. Whatever you might think of her, at least Kristin Davis, the eccentric madam in the Spitzer case, is consistent. When she got out of Rikers Island in 2010, Davis ran for governor in New York on the Anti-Prohibition party ticket. As well as legalizing prostitution, Davis sought to lift restrictions on marijuana and firearms.

If your political philosophy requires the micromanagement of all individual behavior as a means of achieving established societal aims, then you will presumably find little wrong with the status quo in this area. (Here, the progressive Left forms an unholy alliance with the moral majority.) But if you are of the view that republics are supposed to maximize the liberty of the individual and to privilege its protection above the vagaries of national schemers, then perhaps you might reconsider your position. (And with rather more finesse than did Nassau County, N.Y., one hopes.)

The law of contract, which is the bedrock of liberty, has already been diluted enough in the West. There is really no good philosophical justification for forbidding a prostitute and a “John” — “Jane,” sometimes, too — from entering into whatever victimless agreement they so wish.

As it did with its fight against alcohol and has begun to do with its war on drugs, the United States should recognize that its attempt to eliminate prostitution has been a failure. “Legal” does not equal “moral,” and it never will, but a move by the states to legalize and regulate the practice may help to take the industry out of the hands of criminals and to allow regulation of what is, frankly, an inevitability. As Reason’s Jacob Sullum argues:

The black markets created by such edicts are dangerous places characterized by fraud and violence, in contrast with the honesty and peace that tend to prevail in legal versions of those very same markets. Contrast the prostitution business in New York and in Nevada, or the booze business before and after December 1933.

Ronald Reagan used to joke that politics, “the second-oldest profession,” “bears a striking resemblance to the first.” Eliot Spitzer was drummed out of one profession for dallying in the other while calling vehemently for the prosecution of those similarly indulging themselves. Whether he is allowed to return to the fray is up to the voters of New York City. If the answer is “No,” one hopes that they will remember him more for his betrayal, for his hypocrisy, and for his breaking a bad law while obliged to uphold it than for his foray into a world that, for better or for worse, has remained zoetic since the age of the First Babylonians.

— Charles C. W. Cooke is a staff writer at National Review.