Legalizing Prostitution Is A 'Faustian Bargain'
Once upon a time, I was pretty libertarian about prostitution, considering sex-for-sale, as cliché had it, a victim-less crime. Buying your way into bed isn’t exactly Romeo and Juliet, but the law has more serious crimes to chase — or so I thought.
Then, to quote St. Paul, I became a man and put aside childish things, learning an adult lesson: The world’s oldest profession is also one of the most dangerous.
In the U.S., prostitutes are 51 times more likely to be murdered on the job than liquor store employees, the second deadliest work environment for women. Up to two-thirds of prostitutes were abused sexually as girls, one-third have received death threats from pimps, and almost half have tried to kill themselves. Similar occupational hazards also exist abroad.
This lethality should appall us — and yet recent headlines involving New England Patriots owner Robert Kraft’s arrest in a sex-trafficking sting obscure how insidious prostitution is, and how it needs to be battled in a smarter way.
Even though Florida officials were investigating sex trafficking — defined as coerced or minor-involved prostitution — Kraft faces only low-grade misdemeanor charges. He pleaded innocent and turned down prosecutors' offer to drop the case if he and the 24 others netted by the sting admitted the evidence against them was solid. (He's also been telling lots of people how sorry he is.)
If Kraft fights the charges, he'll keep the case the public consciousness. Good. We're in danger of losing a teachable moment. Already, Democratic presidential candidates Kamala Harris and John Hickenlooper endorse legalizing and regulating prostitution as a way to make it safer.
Real-life experience has not been kind to their perspective.
Pro-legalization advocates often tout New Zealand, which decriminalized prostitution in 2003. An academic review found sex workers in New Zealand thought the increased rights, from coming out of the shadows, protected them from violence and empowered them to refuse clients and demand safe sex. But legalization didn’t erase the stigma prostitutes feel, as half didn’t disclose their occupation to their doctors. Still, the law appears to have achieved the overriding goal of greater safety for sex workers.
Prostitution and sex trafficking are lanes on the same dangerous highway for women
Legalization hasn’t worked out as well in Germany, where abuse and sex trafficking remain rampant. Police and women’s groups told the magazine Der Spiegel that “the well-meaning law is in fact little more than a subsidy program for pimps and makes the market more attractive to human traffickers.”
The magazine interviewed one Romanian woman, trafficked to Berlin, who was kept locked in her brothel — except when she was escorted by guard to buy cigarettes and snacks — and had to block out mentally the round-robin sex with clients. On the bright side, she “was hardly ever beaten.”
The German experience is representative. A 2014 study of 116 countries by Harvard Law School concluded that those “with legalized prostitution are associated with higher human trafficking inflows than countries where prostitution is prohibited,” with the strongest inflows occurring in rich nations. The researchers found:
The scale effect of legalizing prostitution, i.e. expansion of the market, outweighs the substitution effect, where legal sex workers are favored over illegal workers. On average, countries with legalized prostitution report a greater incidence of human trafficking inflows.
The researchers argued that legalization might offer better working conditions for legally employed prostitutes. Yet given what they call the “likely negative consequences” with trafficking, that’s a truly Faustian bargain. It’s better to criminalize more smartly, as the Swedish do.
Two decades ago, Sweden decided to make selling sex legal, but buying it illegal, criminalizing johns rather than prostitutes. The Swedes couple enlightened illegality with generosity — “a strong welfare state, existing services for women who wish to leave the industry,” a prostitution law journalist told Mic. The result? Both prostitution and sex trafficking have plummeted. The inverse rise in violence against sex workers, that was prophesied by some, did not happen, the government reported in 2010. Norway and Iceland have since adopted this “Nordic Model.”
Sweden decided to make selling sex legal, but buying it illegal, criminalizing johns rather than prostitutes.
Critics say Sweden’s putative, prostitute-less paradise masks an invisible black market. But absent more evidence, there’s good reason to believe much of the decline in sex work is real: Research suggests that across nations, prostitutes overwhelmingly want out of the business (and legalization advocates insist that we listen to marginalized sex workers’ voices).
A second argument in favor of legalization echoes my youthful rationale: If a woman wants to sell her body for sex, that’s her right; the state has no business punishing her or her clientele. One full-legalizer damned what she called “a determined effort on the part of some radical feminists to undermine the rights of women who are sex workers to self-determination in the context of sex work.”
But such philosophizing runs aground on the ugly shores of prostitution’s dangers and connection to trafficking. Some legalizers groused when the U.S. shut down Backpage.com, on the grounds that criminalizing the escort services ad site forced sex work underground, where it’s less safe. But even Kamala Harris endorsed the feds taking action, saying the site engaged in child sex trafficking, as a Senate investigation concluded.
The Nordic Model “is our best hope for an off-ramp for women caught in prostitution,” Susanna Bean, communications director for Shared Hope, an anti-trafficking nonprofit, told me.
We need that off-ramp because prostitution and trafficking are lanes on the same dangerous highway for women. Journalist Callie Crossley, assessing the charges against Robert Kraft, was right when she said, “To hear from the people who have been exploited, who are now saying quite clearly that — if you say ‘sex trafficking’ or ‘prostitution’ — it really is not very much distinct."