The resignation of Randall Tobias, the chief of the Bush administration's foreign aid programs, for "personal reasons" following the revelation that he had engaged the services of two escort-service workers has provided rich grist for amusement on the punditry circuit. There was indeed plenty of material for humor in the situation, from Tobias's strong stand in favor of abstinence teaching in AIDS prevention programs to his "I didn't inhale"-style assertion that he never had sex with the women. But the predictable laughs have obscured a much larger issue than hypocrisy in the ranks of social conservatives. The reason Tobias's call-girl adventures became public is that the owner of the Washington, DC-based service, Pamela Martin, is facing prosecution and has turned her records over to news organizations to help pay for her legal defense.
Even those who feel a certain schadenfreude at Tobias's downfall should be asking the question: should there have been a criminal case in the first place?
Prostitution is currently legal in virtually all developed nations, though often surrounded by restrictions and regulations. It is illegal everywhere in the United States except Nevada and, by a legal quirk, in Rhode Island if all transactions are conducted in a private residence.
Yet prostitution is perhaps the ultimate victimless crime: a consensual transaction in which both parties are supposedly committing a crime, and the person most likely to be charged—the one selling sex—is also the one most likely to be viewed as the victim. (A bizarre inversion of this situation occurs in Sweden, where, as a result of feminist pressure to treat prostitutes as victims, it is now a crime to pay for sex but not to offer it for sale.) It is sometimes claimed that the true victims of prostitution are the johns' wives. But surely women whose husbands are involved in noncommercial—and sometimes quite expensive—extramarital affairs are no less victimized.
Another common claim is that prostitution causes direct harm by contributing to the spread of sexually transmitted diseases, including HIV/AIDS. However, that may be the reddest herring of them all. In Australia, where sex for money is legal, the rate of HIV infection among female prostitutes is so low that prostitution has been removed from the list of known risk factors in HIV surveillance. In the U.S., reliable data are more difficult to come by, but a 1987 Centers for Disease Control study likewise found very low infection rates among prostitutes.
It's the criminalization of prostitution that does take actual victims. Take Brandy Britton, briefly notorious as "Madam Professor." In January 2001 the 41-year old Britton, who had taught sociology and anthropology at the University of Maryland-Baltimore County until quitting in 1999 amidst conflicts with colleagues and allegations of falsifying research, was arrested on prostitution charges. Britton had allegedly advertised on the Internet as "Alexis Angel," "a very passionate full-service, GFE (girl friend experience) escort and erotic masseuse," stressing her intelligence and education and charging from $300 an hour to $2,500 a day for her services. A year later, the week before her scheduled trial, Britton committed suicide.
While Britton may not have led an admirable life—her last occupation aside, her academic career seems to have been undone by professional misconduct and a habit of making unsubstantiated sex-discrimination charges—surely her death was a needless tragedy. It's hard to see who benefited from the fact that the authorities in Maryland spent a lot of taxpayer money to investigate and prosecute a woman for discreet and private sexual encounters with men—encounters that would have been perfectly legal if, instead of directly paying her for sex, those men had spent an equivalent amount on dates and gifts.
As with other victimless crimes, the criminalization of prostitution creates a vast breeding ground for corruption, hypocrisy, and morally dubious law enforcement tactics. Thus, open advertisement of escort services is widely tolerated under the flimsy pretext that clients are paying for companionship, "modeling," "role play" and other non-sexual activities, and that when sex occurs it's by mutual choice unrelated to any fees. Selective enforcement is the norm, as is entrapment. Anti-prostitution campaigns are also frequently accompanied by the Big Brother-ish practice of state-sponsored public shaming. Not to mention how black market constitution makes it more difficult to police the sex slave trade, where the prostitutes really are victims.
Unlike some defenders of prostitution such as "Mayflower Madam" Sydney Biddle Barrows, I do not believe that selling sex should ever be seen as an empowering or liberating way of life, or an affirmation of female sexuality. (If anything, it perpetuates the notion that sex is something women do for male enjoyment.) I do not believe, as sex-positive feminist Susie Bright has written, that "sex-work professionals are [among] the future's largest contingents of the new het-sex liberation front." Nor do I think that disapproval of sex for profit invariably stems from a residual notion that sex is bad, or that "sex work" should be destigmatized as just another career. But there is a vast difference between social stigma and criminal prosecution, between personal moral judgment and the nanny state.
Cathy Young is a contributing editor to reason.
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