Legalize Prostitution? Not So Fast

by Fred Schwarz

Considering that this blog’s symbol is a lamppost, I guess it was inevitable that the subject would eventually turn to prostitution . . .

I don’t entirely disagree with my man Charlie Cooke’s suggestion that prostitution should be legalized (under local option, I’d insist), but I’m not sure I go along with everything he said in his piece. Leaving moral issues aside (not because they’re unimportant, but because they were not the subject of Charlie’s discussion), I think it’s worth remembering that prostitution does have bad effects that ordinary adultery does not: exploitation of workers, spreading of disease, sleazification of neighborhoods, money going to criminal enterprises – not to mention that if adultery is a bad thing, as Charlie admits, why make it easier? The crime of prostitution may in some sense be victimless, but the industry is not.

Charlie says we have to legalize prostitution so we can regulate it, which is an odd thing to hear from a libertarian. True, Nevada’s legal brothels, all located in rural counties, have some protections for workers, including regular medical exams, but these are not the only prostitutes in Nevada. And the more you pile on expensive or cumbersome regulations, the greater the incentive to continue operating illegally, especially if doing so has been downgraded from a crime to a violation. It’s far from clear that legalization would “take the industry out of the hands of criminals.”

But the core of Charlie’s thesis is an assertion we hear raised frequently against various public policies — often, to be sure, with good reason: You can’t stop people from doing it, so why bother trying? The classic example is Prohibition, and it’s a better parallel than it may seem, because it can be cited to support both sides.

No one is seriously arguing that Prohibition was a good thing, but there is ample historical evidence that it did reduce Americans’ consumption of alcohol — which is exactly what you would expect when you increase the cost of something and decrease its quality while making it harder to procure and adding in the chance of getting arrested.

So if you abandon the straw man of eradicating the targeted activity, and substitute the more reasonable goal of trying to reduce it, Prohibition was a success. We still consider it a failure, though, because it was widely derided and half-heartedly enforced, and the reason for that is that alcohol is simply not something that should be banned: It’s not harmful or dangerous enough to warrant such treatment.

The obvious counterpart is abortion. Yes, if you ban it, some women will have illegal abortions, which may be less safe and even more traumatic than legal ones. But there’s no question that a ban would significantly reduce the number of abortions, and from a pro-life perspective, the lives that would be saved greatly outweigh everything else. (For those who are pro-choice, of course, abortion falls into the “no reason to ban” category; but either way, the fact that some abortions will still be performed should not affect one’s position.)

Or consider narcotics. As is the case in most legalize-it arguments, the optimistic assumption here is that if you do legalize it, nothing will get worse (consumption will not increase, because everyone who wants drugs can supposedly get them already), but all the bad parts (criminal involvement, heavy-handed law enforcement, financial ruin for users, poor hygienic standards, etc.) will disappear. So let’s legalize narcotics, the argument goes, and find something else to get worked up about. In Vietnam, this strategy was called “declare victory and go home,” and, as in Vietnam, it’s the right strategy if you don’t have the resources or the public support for an all-out fight. But the battle can be won if the will and the wherewithal are present. Eventually these things were no longer present in Vietnam; the same may or may not happen with the War on Drugs.

In metaphorical wars and real ones, there’s always a weighing of costs and benefits. Prohibition of alcohol sits at one end of the spectrum, with narcotics and abortion towards the other end, and things like prostitution and marijuana in the middle. It makes sense to legalize an activity if it’s one that should not be banned (that’s a truism), or one whose costs, broadly reckoned, are less than the costs of suppressing it. Deciding the first of these questions, and calculating the second, is where the disagreements set in.

In the case of prostitution, I can imagine a regime under which it’s legal that would be less harmful than what we have now. So perhaps it’s worth a try. But let’s not kid ourselves that legalization would put an end to criminal involvement in the trade, or the way it can ruin lives. And let’s remember that “they’ll do it anyway” is a weak argument when something genuinely needs to be fought.

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