It took a mere 13 years for America to realize the futility of alcohol prohibition. Pot prohibition, enacted at the federal level 80 years ago, is slowly but surely unraveling. Conversations about the futility of criminalizing harder drugs, once limited to the darkest recesses of the libertarian fringe, are happening among “normal” people. Even among puritans, moralizers and drug warriors, the futility of prohibition is broadly recognized. It remains, however, that much of America has not recognized that this futility extends to the world’s oldest profession.

An initiative in California to decriminalize prostitution via the courts recently achieved a notable victory, with the 9th Circuit deciding that there are constitutional grounds/precedents for challenging the current prohibition. Thus, along with the current running of the HBO series “The Deuce” (about the night people of 42nd Street circa 1970), it’s an apt time to contemplate why prostitution remains broadly illegal in America.

Prostitution prohibition is generally recognized as a state-level matter. Only Nevada allows any form of legalized prostitution, and even there it’s limited to licensed brothels and prohibited entirely in the most populous counties (thus, illegal in Las Vegas, Reno, Carson City et al). This prohibition is of relatively recent vintage, mirroring, time-wise, the prohibition of pot and hard drugs. Just as with drugs, prohibition has not done much to end the commercial sex trade. The mechanics have changed with the times, to be sure, with the days of pimps lording over streetwalkers having given way to personal ads and, later, the Internet, but the trade itself remains, it seems, undeterred by either legal crackdown or societal pressure. Sure, every so often, some high-publicity bust or sting is splashed across the news pages, but just as the show-and-tell of multi-ton pot busts merely points out the magnitude of the on-going enterprise, the busts of Heidi Fleiss, Anna Gristina, Kristin Davis, Deborah Jeane Palfrey, and other big-time madams (and pimps) tells us that the sex trade is alive and well.

In this, America lags a number of other countries around the world (again, mirroring to some degree the arc of drug prohibition). Prostitution is legal, to varying degrees, in such nations as France, Germany, Greece, Canada, Denmark, Indonesia, Colombia, The Netherlands, Brazil, Belgium, New Zealand and even Canada (although it’s a bit of a mess up there in this regard). I can understand the persistence of attitudes regarding prohibition on America’s Right, where moral matters tend to rank high in importance, but the failure of the Left to be at the fore of what is properly a women’s rights matter is a bit puzzling.

Yes, prostitution is a women’s rights matter. Libertarians argue, correctly, that the State has no proper authority to regulate any matters of consensual sex between adults (yes, adults. Minors, fundamentally, cannot consent, making the matter of child sex trafficking an entirely different one. Ditto with adult sex trafficking: that’s coercion and kidnapping, and has as much in common with consensual prostitution as slipping a roofie to an unsuspecting date has with buying someone a drink). But, given that there are many people who roll their eyes at “purist” libertarian arguments, no matter how valid, I’ll offer here the case that legalizing prostitution is of primary benefit to women.

Consider the state of any legal service profession. Workers in that profession can negotiate employment terms, avail legal and regulatory protections, organize and collectively bargain, operate within the banking and financial realm, secure insurances and benefits, either directly or from employers, and receive police and other municipal services. Workers in an illegal trade don’t get any of that. Instead, they operate at both physical and economic risk, they intersect with other criminal activities, they may have to seek (and pay for) protections from unscrupulous and criminal sorts, and they have no access to various societal safety nets. Given that prostitution goes on, and that prohibition has failed and will always fail, who can argue that sex workers would not be far better off if they could work legally?

Indeed, Amnesty International has put forth a policy paper calling for the global decriminalization of prostitution. AI considers this a human rights matter, which stands on its head a narrative of recent vintage: the conflation of all sex work with “human trafficking.” In our modern information age, branding and labeling seems more important than ever, and those who oppose the relabeling of prostitution as “sex work” are attempting to expand the scope of the grotesque practice of “human trafficking” to cover everyone from street walkers to high-price call girls. While the rebranding of prostitution as sex work is little more than destigmatization, the “human trafficking” conflation is a falsehood. Unless there is a tautological presumption that a woman cannot consent to selling sex for money, the term trafficking has nothing to do with the vast majority of prostitution, especially where it is legal and where the old model of pimps turning out off-the-bus girls is more myth than reality.

The State bans prostitution for, purportedly, two reasons: because it is morally uncomfortable, and to protect women. Prostitution happens anyway, however, and, despite prohibitions, the sex trade continues to grow. As to the former, it must be kept in mind that allowing is not condoning or approving (a truth that too many prohibitionists of all political stripes tend to forget). As to the latter, women don’t get the protections, both societal and government, they’d otherwise have were the sex trade legal.

Yes, many find prostitution unsavory, but when 1 in 6 American men have, at one point or another, availed themselves of “the world’s oldest profession,” when, despite prohibition, the sex trade in America is estimated at nearly $15B (substantially more than Hollywood’s total domestic revenue), it’s hard to justify that personal dislike as a rational basis for prohibition.

Criminalizing prostitution not only makes the work less safe for the workers, it can stigmatize them and trap them. A criminal record, whether it be for drugs or prostitution, is a life-long stigma that closes people out of countless jobs and careers, leaving them fewer options should they wish to get out of those illegal trades. It also creates a public health hazard, since there’s neither mechanism nor incentive to screen for diseases. Furthermore, there’s a rather capricious and arbitrary line between what’s legal and what’s illegal. Pornography is legal, trading sex for gifts and/or being a “sugar baby” is legal (in part because enforcement would be difficult-to-impossible), suggesting a nice night out would be rewarded with sex is legal. Sure, many find such behavior exploitive, in one direction or another, but remember – allowing is not condoning.

Why, then, do many continue to think that the more overt (and more honest) exchange of money for sex should remain illegal? What benefit is there to continuing this futile prohibition (as futile as alcohol prohibition was, and as futile as drug prohibition continues to be)? Yes, legalization will certainly make some people uncomfortable, and it won’t be a panacea (nothing ever is), but banning it has not accomplished anything positive, and has done great harm to many.

It would be quite the wacky outcome for prostitution in California to be decriminalized by a court’s upholding of individual rights, but any move in the direction of more liberty is always welcome. Such an outcome would certainly spawn copycat lawsuits, and might trigger a national conversation on the issue of prostitution prohibition itself. Should that come to pass, it would behoove all prohibitionists to rethink that position.

Peter Venetoklis

About Peter Venetoklis

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.

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