Andrew Easterbrook

Draft of an essay I may or may not get around to finishing. No guarantees as to readability! Click more if you really want to read my idiosyncratic ramblings.

I think prostitution is no different from any other profession. People, women and men, ought to be able to choose prostitution as a valid and lawful work option free from stigma. Moreover, I think this can be justified using very few assumptions of a common morality. To do this, I’m also going to argue that the right to freedom of work encompasses the right to choose prostitution.

The Law

Let’s start with a legal analysis. I’ll make two assumptions. First, International law is generally a good place to find largely undisputed moral principles that satisfy both moral absolutists and relativists, and second, society frowns upon prostitution. Both the Universal Declaration on Human Rights and the International Covenant on Economic, Social and Cultural Rights assert that state parties must ensure freedom to choose to work and free choice of employment. Great! Promising start, but it’s not that simple. Obviously the right is not intended as an absolute right – it would be ridiculous to say I have a right to be a terrorist or a burglar. So the first question is whether the right applies unless another rule of law conflicts with it, or if it is a right subject to societal qualifications, legal or not on acceptable employment (for example, the much broader classes of moral, religious, economic or other constraints).

Although my job would be a lot easier if constraints were limited to conflicting laws, I’ll assume the worst, and proceed on the basis that the rights only apply when not constrained by legitimate influences generally. So if I reframe the (legal, not moral – yet) question, it becomes: whether the freedom of choice in employment extends to cover the freedom to choose work that society might frown upon. Put that way, I think that intuitively the answer is yes. Intuition isn’t quite enough for some people, though, so I’ll continue.

Human rights, by their very nature, are designed to make sure certain groups have rights in the face of potential infringement. Infringement typically occurs when one group holds different values and priorities to another. If we allow human rights to be subject to societal preferences and values which are themselves subject to fluctuations, their very raison d’être is undermined. Therefore, as long as the reason behind a society’s frowning upon prostitution is not as “fundamental” (or to use ethical vocabulary, “universal” to the society) as the reason behind society’s adoption of the right to freedom of employment, freedom of employment must trump societal disapproval of prostitution.

So, as long as prostitution is not a universal evil, condemned by all groups in a society (or at least more groups than the groups that accept the right to freedom of employment), at the International Law level, a right to choose prostitution exists. This is not the same as saying that a country that has adopted UDHR or ICESCR is bound to implement that right in domestic legislation. However, it is a very good indicator of what the international community deems acceptable and important. We can now move on from the legal question, to the ethical one: is prostitution widely condemned or frowned upon, and where it is, should it be condemned?

Is prostitution widely condemned?

Prostitution has a long, long history. About.com denies it is the world’s oldest profession but admits it is certainly close. Susan Thompson in “Prostitution – A Choice Ignored” (Women’s Rights Law Reporter, vol. 21, no. 3, 2000) agrees that prostitution dates back to the earliest periods of human civilisation. It may even predate that. It has occurred in almost every society since ancient times: American Indians, Ancient Greece, Babylon and Ancient Rome included (see Thompson, p219-221). It can be seen even in early Christianity – Mary Magdalene, St. Pelagia, and St. Afra of Ausburg were ex-prostitutes. St Augustine saw prostitution as a necessary evil, vital to an orderly community (Thompson again).

But we are not so much interested in prostitution’s long history as we are in its status today. A long history does not imply a long acceptance. And I think it’s fairly uncontested that prostitution is not seen as a wholesome, legitimate profession on par with being a lawyer, doctor or taxi driver. What is the extent of this disapproval? A typical person might think prostitution should not be a choice since it is often associated with violence towards, oppression of and subjugation of women. But none of those things are necessary to the existence of prostitution: they are merely coincidental. And the association of prostitution with criminal activity is merely incidental – it occurs in areas where prostitution is already illegal, and since prostitution occurs anyway, it is forced to the underground world and develops an association with crime. Removing any illegality removes it from that world.

My guess is that there is significant distaste directed at prostitutes and prostitution. At least, significant enough for me to have to address the question of whether this distaste and disapproval is warranted.

Is Prostitution Wrong?

I can, I hope, avoid any accusation of relativism by sticking to shared basic principles to deny the claim that prostitution is wrong. Let’s work through the grounds it could be said to be wrong upon:

Prostitution is wrong if it necessarily or frequently causes harm

Prostitution has no necessary causal link with harm, that cannot be disputed. If I need to make the point beyond question, take the case where a person (who has never been a prostitute) is offered $5000 by another person (who has never used the services of a prostitute) to receive oral sex. Both people are STI-free, both are well-off in life, and they will never see each other or interact in any other way in the future. The act was enjoyed by both parties. This is prostitution. No harm eventuates.

The rebuttal is that prostitution might nevertheless often cause harm, and causing frequent harm is enough to classify something as a bad thing. For two reasons this is wrong. Firstly, prostitution can be entered into in a truly voluntary way (not where it is a false choice, for example, where prostitution is the only possible way for a person to make enough money to live). Thus, harm resulting from false or forced choices can’t be counted when deciding whether prostitution is right or wrong – that sort of harm comes about from a bad thing (a broad notion of coercion) itself, and I’m not disputing that coerced prostitution is wrong. So how often does prostitution cause harm when entered into freely and without pressure? STIs and rape are the two big types of harm suffered. But Thompson notes that “no US study has found any significant rates of [HIV/AIDS] infection among men whose only chance of risk has been sexual contact with a female prostitute” (p230). As for other STIs, condom use is standard and sometimes even required by law (e.g. Nevada). And rape denies the prospective prostitute a free choice, so must be excluded since we are talking about freely chosen prostitution. Therefore the “it causes harm so is wrong” argument fails.

Prostitution erodes the fabric of our society

Arguments along these lines come typically from the conservative and/or religious and assert that prostitution damages family relationships, threatens the safety of children, and promotes adultery. Of course, sex itself doesn’t erode the fabric of our society, since it is the very foundation of it. So it must be sex with strangers or sex for money that does the eroding. Forgive me for staying at an abstract level, but once again there is no necessary causal link here. Even assuming that prostitution does all these things (which is debatable, to say the least), it doesn’t do them by virtue of being prostitution. It does them by virtue of going against society- or culture-specific values. Remove the values in question and you remove the conflict.

A more concrete example might help: prostitution’s so-called damage to the family results when a person who is part of a nuclear family engages the services of a prostitute to the detriment of the relationship with his wife and possibly children too. The damage only occurs if the society this happens in forbids or discourages polygamy or adultery/extra-marital relations AND places a high importance on the enduring rigidity of a nuclear family structure. If either of those two values are absent, which is entirely plausible (especially so in today’s postmodern, multicultural western cities), harm doesn’t result. So: claims of this nature do not establish prostitution as necessarily evil, only contingently evil – and that is contingently upon a shared moral standard across the applicable society at issue. And that’s to say nothing about the very dubious nature of claiming such a shared moral standard without limiting it to sub-groups like specific religions. In our western societies it’s increasingly unlikely to find any common moral placing the family above all else.

Conclusion

So we are left with a couple of conclusions. First, the right to choose prostitution is a legal right at international law, unless a universal or nearly universal moral standard can be found that tells us prostitution is wrong. Second, prostitution, while it might be widely condemned, it is by no means universally so. Third, the reasons for condemnation, where it does exist, are contingent upon non-universal moral standards so should not be imposed by law upon those that do not share such standards. Therefore: prostitution is a legal right, and because of this, when freely chosen, is a legitimate and perfectly valid choice, one that all societies abiding by international law ought to allow, protect and refrain from stigmatising.