"Inasmuch as ye did it not to one of the least of these, ye did it not to me," says Christ. "A society will be judged on the basis of how it treats its weakest members," said John Paul II.
But what does that mean we should, or may, do? I'm just one puny person, and it's hard enough to figure out what I should do by myself for the least of us. Just try to apply the notion to a society's collective obligations or powers and you confront far harder problems that drive the most fundamental divisions of our political philosophies. Consider the complication offered by C.S. Lewis, no stranger to Christ's words: “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”
Clothing the naked and feeding the hungry is straightforward. Telling the most powerless of us what they can and cannot do for their own good is not.
I bring this up because every Friday the 13th my friend Maggie McNeill, a talented writer and an advocate for the rights and interests and autonomy of sex workers, asks people to write about the decriminalization of prostitution. I'm not writing a post arguing the case for the decriminalization of prostitution today. That's a complex argument beyond the modest scope of this post and deserving someone better educated on the subject. Instead, I offer three points that I think any such discussion must include. I offer these three points in the face of a bitter debate pitting people who think that sex work (by which I mean prostitution and pornography) is inherently coercive and dehumanizing against people who disagree and think that it ought not be prohibited by the state.
My first point is this: laws designed to help the weak must be judged by their outcomes, not their intentions. We may have moved beyond an era in which prostitution is outlawed primarily for moral reasons into an era in which it is outlawed primarily in an effort to save prostitutes from abuse. Yet criminalization "protects" prostitutes by repeatedly arresting and jailing them and by leaving them with precisely the sort of criminal record that makes it crushingly difficult to secure a job of which our society approves. Criminalization also "protects" prostitutes by giving police officers power over them — power that is routinely used to rape and torment. There is talk, now and again, of making pimps and johns the focus of criminalization, but the reality does not support that talk. Oft-cited statistics released by a Chicago police precinct revealed that 89% of prostitution arrests during a two-year period were of prostitutes, 10% were of customers, and less than 1% were of pimps. "The degree of civilization in a society can be judged by entering the prisons," said Fyodor Dostoevsky. Nobody who enters our jails or prisons is going to conclude that our society has a civilized approach to prostitutes, unless "it became necessary to destroy the village in order to save it" is a mark of civilization. Supporters of criminalization suggest that legalization or decriminalization will result in more abuse and suffering of sex workers. We need to ask: how is this different than the argument that scaling back the amoral and ruinous War on Drugs will lead to more suffering by addicts?
My second point is this: we must be wary of the government using our concern for the health and safety of sex workers as a broad excuse not just to prosecute them but to restrict everybody's rights. "Sex trafficking" is the latest example — a flexible and ill-defined term that the government wields like "terrorism" or "drug trafficking." Are human beings — both children and adults — transported and forced into sex work against their will? Yes. I watched my colleagues prosecute such cases — often involving smuggled South American immigrants — back in the 1990s. But "sex trafficking" has also become an airhorn issue, invoked as an unquestionable basis for government power. Law enforcement invokes it to demand that laws protecting web site owners be weakened — for the children. The government demands that charities parrot its position on sex trafficking to get funding. The NSA cites "human traffickers" to justify undermining internet encryption, the easier to read all our communications at will. It is no kindness to sex workers to sit idly by while an unprincipled government uses them as an excuse for unlimited power.
The third point is this: sex workers are human beings, individuals all, and should be treated accordingly. Yet we're encouraged to view them as abstractions and symbols of social evils. Many women (and men) who leave the sex trade describe their participation as coerced by violence and drugs. But you will also find sex workers who will say that sex work is their choice, and a valid one. What does it signify for society to reject their claim of autonomy? The typical rebuttal from supporters of criminalization is that sex workers cannot consent to their work — that their backgrounds, their circumstances, or society's biases force them into it. They don't say "false consciousness," but they might as well. Advocates of criminalization also point out that a large percentage of sex workers have a history of abuse or drug addiction. Yet they don't explain how that should deprive them of choice, and it seems wantonly cruel to use past abuse as a justification to subject sex workers to the system I describe in my first point, above.
In what other circumstances — other than, say, the War on Drugs — will we tell someone that for their own good we will not let them do something with their bodies because we disapprove of it? Is society's decision that we can say that to sex workers consistent with our other decisions, or principled, or is any part of it a relic of attitudes towards sex rather than attitudes towards coercion or free will?
It's a complicated question. My third point is mostly this: we cannot honestly or decently confront the question without confronting the people involved as human beings with their own views and beliefs. The best way to do that is to listen to what they have to say. There are current and former sex workers on both sides of the issue, and if you care about the issue, you should care about what they say. Read them. I think that if you are going to tell someone what they can or can't do for their own good, you ought to hear what they have to say about it, and look them in the eye when you tell them.
Last 5 posts by Ken White
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016
- Tea and Unaccountability: Bureaucracy and the Drug War - January 5th, 2016