Prostitutes are victims -- of the law

The titillating tale of New York Governor Eliot Spitzer's downfall has had two beneficial results. One is the end of the self-righteous hypocrite's political career of course. The other is revival of interest in legalizing prostitution. The benefits are clear: stripped of outlaw status, the sex trade could operate in the open, enjoying all of the protections and benefits of a legal enterprise, without the dangerous baggage that attaches to any trade conducted in the shadows.

There's push-back, of course. San Francisco Chronicle editorial writer Caille Millner claims to be "surprised" by the number of people she's encountered who don't think people should face fines and imprisonment if they exchange sex for money. It's hard to know what to say about somebody who is so easily shocked, or who insists that long-established arguments for legalization are "incoherent," except that she seems rather sheltered and just a bit closed to opinions that contradict her own.

Millner dismisses arguments that laws against prostitution are widely ignored, saying, "people also murder other people 'anyway,' and no one's clamoring to legalize that."

But that's the point, isn't it? Murder is held to be immoral and worthy of punishment by virtually everybody, which is why nobody wants it legalized. That's because murder has clear victims and perpetrators. Prostitution, on the other hand, has no victims in and of itself; there are providers and customers, but the participants are willing. Some people are forced into prostitution, but that act of slavery is the evil, and is an artifact of the illegal nature of the business. That most participants are willing is reflected by the fact that prostitutes are punished by law and that sex workers have organized to change the law.

The consensual nature of prostitution undermines Millner's claim that "our legal system isn't written simply for the purpose of expediency, it's also written to underline morality." It's hard to send a message about morality when there's widespread disagreement about whether the criminals or the law enforcers are the good guys. Laws against prostitution, as with other laws against victimless activities, then become nothing more than a temper tantrum by the majority, joined with blunt threats against the dissenting minority.

Millner argues, implausibly, that legalizing prostitution might, somehow, make it more dangerous for participants in the business. Right -- because access to courts, doctors and police is such a harbinger of doom. And finally, she asks: "Is this the kind of 'career route' you would want for your sister or your daughter?"

Not necessarily. But it's not really my place to make business decisions for my relatives. Besides, if my sister or daughter does choose to peddle her favors for money, I think I'd like her to be able to go about her business without fear of being rousted by the cops.

But why would a woman -- or man -- go into the sex trade? For the answer to that question, we turn to somebody who actually knows what she's talking about: anthropologist Patty Kelly, who spent a year studying workers at a legal Mexican brothel.

Here's what I learned: Most of the workers made some rational choice to be there, sometimes after a divorce, a bad breakup or an economic crisis, acute or chronic. Of the 140 women who worked at the Galactic Zone, as the brothel was called, only five had a pimp (and in each of those cases, they insisted the man was their boyfriend).

The women made their own hours, set their own rates and decided for themselves what sex acts they would perform. Some were happy with the job. (As Gabriela once told me: "You should have seen me before I started working here. I was so depressed.") Others would've preferred to be doing other work, though the employment available to these women in Mexico (servants, factory workers) pays far less for longer hours.

Hmmm ... no slaves here in a brothel operating in the open. And since the prostitutes Ms. Kelly studied worked in a legal business, the police were their allies, not their enemies.

Kelly doesn't pretend that the women she studies led idyllic lives -- the trade might be legal, but it's still stigmatized and has its own risks. But, as she adds:

[C]riminalization is worse. Sweden's 1998 criminalization of commercial sex -- a measure titled "The Protection of Women" -- appears not to protect them at all. A 2004 report by the Swedish Ministry of Justice and the police found that after it went into effect, prostitution, of course, continued. Meanwhile, prices for sexual services dropped, clients were fewer but more often violent, more wanted to pay for sex and not use a condom -- and sex workers had less time to assess the mental state of their clients because of the fear of getting caught.

That makes sense. The idea that you protect people by threatening them with legal consequences and denying them the resources available to legal workers is ludicrous. Any trade conducted in the shadows will have more risks than one conducted in the open.

Don't expect real-life experience to sway the Caille Millners of the world. They've concluded that trading sex for money is stained with immorality and that the law, no matter how counterproductive or ineffective, must send a message. Considering the people fined, jailed and victimized in the absence of legal recourse, that's an expensive telegram.