[This post also appears in today's Atlanta Journal-Constitution and is posted here at the request of the author. Prof. Nussbaum's arguments about prostitution made here are developed at greater length in an article entitled "'Whether from Reason or Prejudice'": Taking Money for Bodily Services," 2 Journal of Legal Studies 27 (1998).]
Eliot Spitzer, one of the nation's most gifted and dedicated politicians, was hounded into resignation by a Puritanism and mean-spiritedness that are quintessentially American. My European colleagues (I write from an academic conference in Belgium) have a hard time understanding what happened, but they know that it is one of those things that could only happen in America, where the topic of sex drives otherwise reasonable people insane. In Germany and the Netherlands, prostitution is legal and regulated by public health authorities. A man who did what Spitzer did would have a lot to discuss with his wife and family, but he would have broken no laws, and it would be laughable to accuse him of a betrayal of the public trust. This is as it should be. If Spitzer broke any laws, they were bad laws, laws that should never have existed.
Why are there laws against prostitution? All of us, with the exception of the independently wealthy and the unemployed, take money for the use of our body. Professors, factory workers, opera singers, sex workers, doctors, legislators – all do things with parts of their bodies for which others offer them a fee. Some people get good wages and some do not; some have a relatively high degree of control over their working conditions and some have little control; some have many employment options and some have very few. And: some are socially stigmatized and some are not. However, the difference between the sex worker and the professor, who takes money for the use of a particularly intimate part of her body, namely her mind, is not the difference between a "good woman" and a "bad woman." It is, usually, the difference between a prosperous well-educated woman and a poor woman with few employment options.
Many types of bodily wage labor used to be socially stigmatized. In
the Middle Ages, for example, it was widely thought base to take money
for the use of one's scholarly services. Adam Smith, in The Wealth of Nations,
tells us that there are "some very agreeable and beautiful talents"
that are admirable so long as no pay is taken for them, "but of which
the exercise for the sake of gain is considered, whether from reason or
prejudice, as a sort of publick prostitution." For this reason, he
continues, opera singers, actors, and dancers must be paid an
"exorbitant" wage, to compensate them for the stigma involved in using
their talents "as the means of subsistence." "Should the publick
opinion or prejudice ever alter with regard to such occupations," he
concludes, "their pecuniary recompence would quickly diminish." Smith
was not altogether right about the opera market, but his discussion is
revealing for what it shows us about stigma. Today few professions are
more honored than that of opera singer; and yet only two hundred years
ago, that public use of one's body for pay was taken to be a kind of
Some of the stigma attached to opera singers was a general stigma about wage labor. Wealthy elites have always preferred genteel amateurism. But the fact that passion was being expressed publicly with the body – particularly the female body -- made singers, dancers, and actors non-respectable in polite society until very recently. Now they are respectable, but women who take money for sexual services are still thought to be doing something that is not only non-respectable but so bad that it should remain illegal.
What should really trouble us about sex work? That it is sex that these women do, with many customers, should not in and of itself trouble us, from the point of view of legality, even if we personally don't share the woman's values. Nonetheless, it is this one fact that still-Puritan America finds utterly intolerable. (Note, however, that we no longer allow a woman's sexual history to be used in a rape trial, because we know that the fact that a woman may have had sex with many men does not mean that she has become a debased character who cannot be raped.) What should trouble us are things like this: The working conditions for most women in sex work are extremely unhealthy. They are exploited by pimps, and they enjoy little control over which clients they will accept. Police harass them and extort sexual favors from them. Some of these bad features (unhealthiness, little control) sex work shares with other job options for low-income women, such as factory work of many kinds. Other bad features (police extortion) are the natural result of illegality itself.
In general we should be worried about poverty and lack of education. We should be worried that women have too few decent employment options and too little health and safety regulation in those that they do have. And we should be worried if men force women to do things sexually that they do not want to do. All these things are worth worrying about, and it is these things that sensible nations do worry about. But the idea that we ought to penalize women with few choices by removing one of the ones they do have is grotesque, the unmistakable fruit of the all-too-American thought that women who choose to have sex with many men are tainted vile things who must be punished.
Eliot Spitzer's offense was an offense against his family. It was not an offense against the public. If he broke any laws, these are laws that never should have existed and that have been repudiated by sensible nations. The hue and cry that has ruined one of the nation's most committed political careers shows our country to itself in a very ugly light.