Real life is complicated. Prostitution is an especially complicated part of real life. And Eliot Spitzer – by virtue of being a very high-profile, wealthy politician with a moralizing streak, an unkempt libido, an armada of powerful enemies, and a fierce but trivializing media looking on – has managed to raise the level of complexity of these matters even further. So, in my estimation, the mess he has made of his life and career (and the mess he made for some of the prostitutes he hired) provides little comfort for anyone trying to stake a position on more general issues regarding prostitution.
I will try to contribute here by briefly reprising a few thoughts I have published elsewhere. (For these, see my “Prostitution and Sexual Autonomy: Making Sense of the Prohibition of Prostitution,” in Ethics, July, 2002). I would agree with Nussbaum, writing here, that there are many reasons to reform the current laws governing prostitution, but I would resist going as far as she seems to go, suggesting that the legal effort to prevent prostitution is based in little more than Puritan moralism. I will conclude by saying a bit about how I think Spitzer’s folly does little to help make a compelling case to legalize prostitution, though, as I said above, the complications here are rather extraordinary, so more helpful cases could no doubt be found.
While some do believe sex is sacred, or believe that religious dictates determine how it should be legally regulated, even if one does not accept such views, one can still find good reasons to try to protect people from having to make sexual choices the same way they make more ordinary economic decisions. If one looks at our social practices, one will notice that there are many conventions and laws in place that have the effect, possibly even the aim, of protecting the sexual autonomy of the large majority of people. These include laws against sexual assault, sexual harassment (either through hostile sexual attention or quid pro quo employment propositions), sexual contracts, and against some forms of obscenity. Other laws restrict the times and places in which sexual businesses and/or information providers (such as pornographers) can provide their wares. In a similar vein, I think, we do not require those on welfare or receiving unemployment benefits to consider sex-work as a job, even if one is qualified for it, and work is available. Moreover, most would be opposed (I suspect) to having schools provide training in sex-work as a kind of career choice, or to having brothels proliferate and advertise in the way fast-food chains have done, so successfully.
These sorts of laws and conventions can be taken to suggest that we regard choices about sexuality to be properly in a domain that should be protected, if possible, from being subject to economic or coercive pressures. Were sex just another use of one’s body, of the sort Nussbaum suggests singing and thinking are, then it would seem to be no more unreasonable to offer career training in sex work in high school than it is to offer choir, philosophy, or auto mechanics as a courses (at least for those who have reached the age of consent in their states). There is no doubt a good deal of Puritanism in our practices as well, and this has serious deleterious effects. But in the same way that accurate, unbiased sex ed classes seems likely to enhance the sexual autonomy of students, we may worry that mainstreaming sex work as a career choice is likely to undermine the sexual autonomy of people. For reasons that require more discussion than can be afforded here, I would argue that such jobs will continue to be the employment of last resort for many people who should be afforded better, non-sex-work opportunities. Here, again, I agree with Nussbaum, that it is the lack of those opportunities that we have most reason to object to. I just think that this fact becomes harder to see once the legal bar to sex work is removed, and sex is treated like any other productive use of the body.
The Spitzer debacle throws little light on these issues, however, for several reasons. For one, Spitzer’s use of prostitutes seems to have been confined to the “high end” of the business, in which there is a much better case to be made for the autonomy of all parties involved. (Even if “Kristen” is not our model rational Kantian agent, and even if her past seems to reinforce many of the warnings about the non-autonomy of prostitutes, I think it would be hard to make a paternalistic case that she would have been better off if she had never had the choice to work as a prostitute. For many other, lower paid sex-workers, the case is much easier to make.) For another, what Spitzer seems to have been purchasing was something other than mere sex: rather, it was a kind of privacy for his sexual activities, that could be gained only by some measure of anonymity, and avoiding the sort of courtship and entanglement that is required to find paramours. Had he simply wanted an affair, or maybe several, it seems likely this could have been arranged, without even sacrificing his political career (though not while remaining married, perhaps). And as many have mentioned, public officials take on certain legal responsibilities, especially when they are a part of the law enforcement apparatus of the state. Unless the laws are manifestly unjust, officials are bound by duty to enforce them; their ability to enforce them would seem to be compromised when they are at the same time engaged in furtively violating the very same laws. Hence, it is hard to see Spitzer’s downfall as especially representative of any of the typical problems with prostitution or its prohibition, let alone as a sign of Puritanism run amok.
If all prostitution looked like the sort that Spitzer’s money and tastes demanded, it might be objectionable in many ways, but I doubt that we could justify using state resources to ban it. But most prostitution bears little resemblance in economic terms or working conditions to what Spitzer purchased. Whereas “Kristen” might be able to earn a decent living under tolerable working conditions, and retain some control over her sexual choices (this is at least plausible for some expensive prostitutes, even if not in “Kristen’s” particular case), most cannot, and their customers could not afford such. So the question is whether more ordinary prostitution should be allowed to grow and flourish in order to allow the sort “Kristen” and Spitzer engaged in to remain unhindered. Or vice versa. There is at least a prima facie case that can be made for why the more vulnerable people in the industry might be better off, and our gender relations in general more egalitarian, if we take reasonable steps to discourage and reject the acceptability of prostitution, than if we treat it as just another private economic choice among consenting adults.