The intuition that there is a distinction between markets in different human capacities is a deep one, even among people who ultimately think that the distinction does not justify legally forbidding sales of reproductive capacity and sex. I continue to probe this intuition in this chapter, focusing on the sale of sexual services. What, if anything, is problematic about a woman selling her sexual as opposed to her secre-tarial labor? And if the apparent asymmetry can be explained and justi-fi ed, what implications follow for public policy?
My strategy in this chapter parallels that of chapter 5 on contract pregnancy. I sketch and criticize two popular approaches to the morality of prostitution. The economic approach attributes the wrong-ness of prostitution to its consequences for effi ciency, the fact that it generates externalities. The important feature of this approach is its treatment of sex as a morally indifferent matter. The essentialist approach stresses that sales of sexual labor are wrong because they are inherently alienating or damaging to human happiness. In contrast to these two ways of thinking about the immorality of prostitution, I argue that the most plausible support for the asymmetry thesis stems from the role of commercialized sex and reproduction in sustaining a social world in which women form a subordinated social group. This parallels but also diverges from my argument about contract nancy. In the fi rst place, I argue that prostitution, like contract preg-nancy, is wrong insofar as the sale of women’s sexual labor reinforces broad patterns of sex inequality. This might seem surprising insofar as the argument about contract pregnancy stressed perceptions of women as baby machines and prostitution seems to challenge exactly those perceptions. I present an alternative way that the practice of contem-porary prostitution contributes to and also embodies the perception of women as socially inferior to men. But because many forms of labor
Why Some Things Should Not Be for Sale 136
that people do not view as especially troubling may also contribute to the socially inferior position of women—women models, maids, day care workers, and au pairs—I address the question of what makes prostitution different. In the second place, prostitution, unlike con-tract pregnancy, does not involve potential harms to children, nor does it necessarily involve weak agency. 1 Therefore the case against prostitution as a noxious market cannot rest on such grounds. Yet many women are harmed in forms of prostitution, and I also hope to show that there is a third party that is harmed by prostitution: the class of women.
On the basis of my analysis of prostitution’s wrongness, there is no simple conclusion as to what its legal status ought to be. Both criminal-ization and decriminalcriminal-ization may have the effect of exacerbating the gender inequalities in virtue of which I claim that prostitution is wrong.
Nonetheless my argument does have implications for the form of pros-titution’s regulation, if legal, and its prohibition and penalties, if illegal. Overall my argument tends to support decriminalization in contexts such as the United States and Western Europe, where prohi-bitions on abuse can be enforced and there is a social safety net to pro-tect women from entering into prostitution under conditions of extreme vulnerability.
The argument I put forward here is qualified and tentative in its practical conclusions, but its theoretical point is not. I argue that the most plausible account of prostitution’s wrongness turns on its relation-ship to the pervasive social inequality between men and women . If in fact no causal relationship obtains between prostitution and gender inequality, then I do not think that there are good reasons, at least not among the reasons I examine, for thinking that prostitution is, by itself, especially morally troubling. What would remain troubling would be the often miserable and unjust background circumstances in which much prostitution occurs. 2 In my evaluation of prostitu-tion consideraprostitu-tion of both the social consequences and the social origins of prostitution with respect to gender inequality play a cru-cial role. It follows from my analysis that male prostitution raises distinct issues and is not connected to injustice in the same way as female prostitution.
Prostitution is a complex phenomenon. I begin accordingly with the question, Who is a prostitute?
Markets in Women’s Sexual Labor 137
W H O I S A P R O S T I T U T E ?
Much has been written on the history of prostitution, and some empirical studies of prostitutes themselves have been undertaken, yet the few phi-losophers writing on this subject have tended to treat prostitution as if the term referred to something uniform. 3 It does not. Not only is it hard to draw a sharp line between prostitution and practices that look like prosti-tution, 4 but as historians of the subject have emphasized, prostitution today is a very different phenomenon from earlier forms of commercial sex. In particular the idea of prostitution as a specialized occupation of an outcast and stigmatized group is of relatively recent origin. 5
While outsiders tend to stigmatize all prostitutes, prostitution itself has an internal hierarchy based on class, race, and gender. The majority of prostitutes, especially when we consider the issue globally, are very poor. Even in the United States streetwalkers are a world apart from prostitution’s upper tier. Consider these three cases:
• A fourteen-year-old girl prostitutes herself to support her boy-friend’s heroin addiction. Later she works the streets to support her own habit. She begins, like most teenage streetwalkers, to rely on a pimp for protection. She is uneducated and is frequently subjected to violence in her relationships and with her customers. She receives no social security, no sick leave or maternity leave, and, most important, she has no control as to whether or not she has sex with a man. That is a decision that is made by her pimp.
• Now imagine the life of a Park Avenue call girl or a highly paid
“escort” to wealthy powerful men. 6 Many call girls drift into high-class prostitution after “run of the mill promiscuity,” led neither by material want nor lack of alternatives. 7 Some are young college graduates who upon graduation earn money by prostitution while searching for other jobs. Call girls can earn between $30,000 and $100,000 annually. These women have control over the entire amount they earn as well as an unusual degree of independence, greater than in many other forms of work. They can also decide whom they wish to have sex with and when they wish to do so. 8 There is little resemblance between their lives and that of the streetwalker.
• Finally, consider the small but increasing number of male prosti-tutes. Most male prostitutes (but not all) sell sex to other men. 9
Why Some Things Should Not Be for Sale 138
Often the men who buy such sex are married. Unfortunately there is little information on male prostitution; it has not been well studied as either a historical or a contemporary phenomenon. 10 What we do know suggests that, like their female counterparts, male prostitutes cover the economic spectrum. Two important differences between male and female prostitutes are that men are more likely to work only part time and that they are not generally subject to the violence of male pimps because they tend to work on their own.
Are these three cases distinct? Many critics of prostitution have assumed that all prostitutes were women who entered the practice under circumstances that include abuse and economic desperation. But that is a false assumption: the critics have mistaken a part of the practice for the whole. For example, although women who walk the streets are the most visible, they constitute only about 20 percent of the prostitute population in the United States. 11
The varying circumstances of prostitution are important because they force us to consider carefully what we think may be wrong with prosti-tution. For example, in the fi rst case the factors that seem crucial to our negative response of condemnation are the miserable background con-ditions of desperation, the prostitute’s age, and her lack of control over whether or not she has sex with a client, as well as her vulnerability to violence at the hands of her pimp or client. In chapter 4 I referred to these factors as vulnerability, weak agency , and extreme individual harmful outcome . These conditions could be redressed through regulation with-out forbidding commercial sexual exchanges between consenting adults. 12 The second case of prostitution stands in sharp contrast. These women engage in what seems to be a voluntary activity, chosen among a range of decent alternatives. Many of these women sell their sexual capacities without coercion or regret. The third case rebuts arguments that prostitution has no other purpose than to exploit women.
W H AT I S W R O N G W I T H P R O S T I T U T I O N ?
The Economic Approach
As we have seen in earlier chapters, economists generally frame their ques-tions about the best way to distribute a good without reference to its
Markets in Women’s Sexual Labor 139
intrinsic qualities. They tend to focus on the quantitative features of a good and not its qualities. An economic approach to prostitution does not specify a priori that certain sales are wrong; no act of commodifi cation is ruled out in advance. 13 Rather this approach focuses on the costs and ben-efi ts that accompany such sales. An economic approach to contracts will justify inalienability rules—rules that forbid individuals from entering into certain transactions—in cases where there are costly externalities to those transactions and in general where such transactions are ineffi cient.
What are the costs of prostitution? First, the parties to a commercial sex transaction share possible costs of disease and guilt. 14 Second, prosti-tution also has costs to third parties: a man who frequents a prostitute dissipates fi nancial resources that might otherwise be directed to his family; in a society that values intimate marriage, infi delity costs a man’s wife or companion in terms of mistrust and suffering (and therefore prostitution may sometimes lead to marital instability); and sexual dis-eases can be spread to others. Perhaps the largest third-party costs to prostitution are “moralisms”: 15 many people fi nd the practice morally offensive and are pained by its existence. (Note that “moralisms” refers to people’s preferences about moral issues and not to morality as such.)
The economic approach generates a contingent case for treating prostitution differently than we do other labor markets, focusing on prostitution’s costs in terms of negative public opinion or the harms to prostitutes or others in the population (including through the spread of diseases). Consideration of which limitations on sexual freedom can be justifi ed from a welfare standpoint can be illuminating, and it forces us to think about the actual effects of sexual regulations. Nevertheless I want to register three diffi culties with this approach.
First, and most obviously, both markets and contractual exchanges function within a regime of property rights and legal entitlements. The economic approach ignores the background system of distribution within which prostitution occurs. Some background systems, however, are unjust. We might especially be worried about prostitution that arises as the only way to stave off starvation. In contrast to contract pregnancy, some of the participants in prostitution markets (especially if we con-sider the practice as a global phenomenon) are likely to be desperately poor and survive for all practical purposes as sexual slaves.
Second, this type of approach seems disabled from making sense of distinctions between goods, especially in cases where these distinctions
Why Some Things Should Not Be for Sale 140
do not seem to refl ect mere differences in the net sum of costs and ben-efi ts. The sale of certain goods seems to many people simply unthink-able; it may be possible to justify prohibitions on slavery by appeal to costs and benefi ts, but the problem is that such justifi cation makes con-tingent an outcome (no slavery) that we do not hold concon-tingently. It makes little sense, phenomenologically, to describe the moral repug-nance people feel toward slavery as “just a cost.” Even if we are inter-ested in tracking third party costs, as we saw in chapter 1, externalities (especially if we count moralisms as externalities) are nearly universal in practice. If we view any market that generates disapproval as producing an externality that can justify intervention, then freedom of contract is on shaky ground. We need some way of marking which costs rise to the level of justifying interference and regulation and which do not. Nothing in economic analysis helps us to do this.
Third, some goods seem to have a special status that requires that they be shielded from the market. As we saw in chapter 4, the sale of votes or political rights does not simply produce costs and benefi ts: it transforms the background conditions for people to interact as equals.
In this sense the market is not a neutral mechanism of exchange: there are some goods whose sale reshapes the relations between the transact-ing parties. At best, then, the economic analysis of prostitution is incom-plete. At worst it is misleading.
The Essentialist Approach
Economists abstract from the qualities of the goods they consider. By contrast, as we saw in chapter 5, some critics hold that there is some-thing intrinsic to sex that accounts for the distinction we mark between it and other types of labor. On this view, prostitution is not wrong sim-ply because it causes harm; prostitution constitutes a harm. Essentialists hold that there is some intrinsic property of sex that makes its commod-ifi cation wrong.
Some feminist critics of prostitution argue that sexual and reproduc-tive capacities are more crucially tied to the nature of our selves than our other capacities. 16 The sale of sex is taken to cut deeper into the self, to involve a more total alienation from the self. Recall Carole Pateman:
Markets in Women’s Sexual Labor 141
“When a prostitute contracts out use of her body she is thus selling herself in a very real sense. Women’s selves are involved in prostitution in a dif-ferent manner from the involvement of the self in other occupations.” 17
It seems right to say that damage to and violation of our bodies affect us in a deeper way, a more signifi cant way, than damage to our external property. Robbing my body of a kidney is a violation different in kind from robbing my house of a stereo, however expensive the latter is. Dis-tributing kidneys from healthy people to sick people through a lottery is a far different act from using a lottery to distribute door prizes, even if ultimately both such lotteries could be defended. 18
But this point can be only the fi rst step in an argument in favor of treating either our organs or our sexual capacities as market-inalienable. Most liberals think that individual sovereignty over mind and body is crucial for the exercise of fundamental liberties. Thus in the absence of clear harms most liberals would reject legal bans on voluntary sales of body parts or sexual capacities. Indeed the usual justifi cation of such bans is harm to self; such sales are presumed to be
“desperate exchanges” that the individual herself would reasonably want to foreclose. American law blocks voluntary sales of individual organs and body parts, but not sales of blood, on the assumption that only the former sales are likely to be so harmful to the individual that given adequate information and any reasonable alternative, she her-self would refrain from such sales.
Whatever the plausibility of such a claim with respect to body parts, 19 it is considerably weaker when applied to sex. There is no strong evi-dence that prostitution is, at least in the United States and certainly among its higher echelons, a more desperate exchange than, say, working in Walmart. This may refl ect the fact that the relationship people have with their sexual capacities is diverse: for some people sexuality is a realm of ecstatic communion with another; for others it is little more than a sport or distraction. Some people will fi nd consenting to be sex-ually used by another person enjoyable or adequately compensated by a wage. Even for the same person, sex can be the source of a range of experiences.
Of course the point cannot simply be that, as an empirical matter, people have differing conceptions of sexuality. The critics of prostitu-tion grant that. The point is whether or not, and within what range, this diversity is desirable.
Why Some Things Should Not Be for Sale 142
Margaret Jane Radin raises a distinct worry about the effects of wide-spread prostitution on human fl ourishing. She argues that widewide-spread sex markets would promote inferior forms of personhood. She says that we can see this is the case if we “refl ect on what we know now about human life and choose the best from among the conceptions available to us.” 20 If prostitution were to become common, Radin argues, it would have adverse effects on a form of personhood that itself is intrinsically valuable. Why should this be so? We might con-sider that if the signs of affection and intimacy were frequently detached from their usual meaning, such signs might well become more ambig-uous and easy to manipulate. The marks of an intimate relationship (physical intimacy, terms of endearment, etc.) would no longer signal the existence of intimacy. In that case, by obscuring the nature of sexual relationships prostitution might undermine our ability to apply the criteria for coercion and informational failure. 21 Individuals might more easily enter into damaging relationships and lead less fulfi lling lives as a result.
It is certainly true that prostitution usually detaches sex from inti-macy. But so does casual sex. Radin’s argument is best understood as an argument that widespread prostitution produces an externality. I agree.
The question is, What is the nature of the externality? Radin views the externality in terms of inferior human fl ourishing. But even if prostitu-tion fails to promote fl ourishing, there are markets in many goods we tolerate that don’t promote fl ourishing: high-fat foods, for example. In arguing that we should assess and potentially regulate markets accord-ing to the extent to which they promote the best forms of fl ourishaccord-ing, Radin implicitly accepts the view that the purpose of the state is to make people happy. This is a substantive claim with strong paternalistic ram-ifi cations. I have tried to make an argument about markets that does not depend on paternalism. Later I will claim that contemporary prostitu-tion is wrong because it promotes unequal relaprostitu-tionships between men and women, gender hierarchy, and exclusion—matters of justice—and not because it makes people less happy. 22
An alternative version of the essentialist thesis views the sale and
An alternative version of the essentialist thesis views the sale and