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Tuesday, March 11, 2008

Legalizing Prostitution

Yeah, Yeah, Yeah: Spitzer did a stupid, illegal thing. BUT, let's pause for a second. Here are things he did NOT do: he was not “involved in” or “engaged in a prostitution ring," as the misleading reports labeled his acts, implying he was involved in the operations of the company. He was a client. Yes, a John. The company is an ultra high-end call-girl network. Yes, prostitution, but, I argue, not the kind that feminists should be particularly concerned with. Many of these girls are probably confident, educated, empowered college or graduate students with all sorts of goals in life, who, exercising their agency, prefer making $5000 (or even $2000, after the company takes its share) an hour sleeping with some of the world’s most powerful politicians and business men than waiting tables, washing dishes, or working at Wal-Mart for $8 an hour.

As it so happens, today in my Work, Welfare, and Justice seminar, I am teaching a piece by philosopher Harriett Baber, Adaptive Preference:

Martha Nussbaum argues that preference welfarism, the doctrine that a person’s good consists in the satisfaction of her informed desires, fails to explain our intuitions in cases of “adaptive preference,” where the preferences of individuals in deprived circumstances are formed in response to their restricted options. Intuitively, it is better for individuals to get what they want than to adjust their wants to be satisfied by what they can get. Preference welfarism however cannot mark this difference as morally significant. I argue , first, that given a reasonable account of preference as it figures in utilitarian accounts, cases of the sort she describes are not examples of adaptive preference and do not undermine the preference utilitarian’s account of what is good for people. The problem is not, as Nussbaum suggests, that the preferences of deprived individuals have been “distorted” but rather that they are not satisfied.

In the paper Baber makes the case that even in difficult third world conditions, it may be that under certain conditions women prefer prostitution to other forms of difficult work not because they suffer from false consciousness or because they are coerced into it, but their choice set is narrow and they can rationally view their life in a brothel as better than their life in a sweatshop. In those context, I would argue that preferences even if rational should be narrowed by law because of the abusive gender exploitation and the proximity that the less abusive forms have to the worse forms of prostitution. In the context of the Emperor VIP, rational choice is a much easier case to make. And by legalizing this type of high end global operation, it becomes easier and more morally justified to eradicate the worse forms of prostitution.

One more thing about Spitzer. My colleague Tom Smith has a damning critique of his behavior. Well, sure, he acted stupidly. But this one act doesn’t necessarily make him stupid, incompetent, nor does it overshadow his entire career. My dear friend, Dan Ariely, has a book out this month, Predictably Irrational:The Hidden Forces That Shape Our Decisions. (I am delighted to report the book hit #5 on the NYT bestselling non-fiction list this week!) In one of the chapters Ariely describes an experiment he conducted in collaboration with another behavioral economist guru, George Loewenstein. In their article, Heat of the Moment: The Effect of Sexual Arousal on Sexual Decision Making, Ariely and Loewenstein state that it is odd that little research has been conducted on the impact of sexual arousal on judgment. Through research, they find that as aroused participants’ interest in procuring sex increased, willingness to use morally questionable methods to obtain the sex increased and probability of using protection decreased. They also show that participants were unable to predict how much of an effect a state of arousal will have on their decision-making. In other words, Spitzer acted stupidly human. All of this is no justification for the Governor of NY to not take a cold shower to move away from his aroused state before calling a high-end prostitution “ring” (I like “company” better). But still, there are worse things people do in positions of power than use their private bank account to spend an evening with a girl away from home. I for one think that a powerful married political hitting on a subordinate in his office is worse than paying someone arranged by an agency. I also think that one can make the case that there are degrees of adultery and that sleeping with a call girl is not as bad as having a mistress. But this is just off the top of my head and I need to go prepare for class. One last thing: schadenfreude is simply bad for your health. Compassion is a far better sentiment for our well-being.

Posted by Orly Lobel on March 11, 2008 at 11:36 AM | Permalink


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» Contrary Views on Spitzer from Discourse.net
Here are two well-written blog postings that argue Spitzer need not resign: Eliot Spitzer: A Dog Bites Man Story?Legalizing Prostitution Im not persuaded. I dont think Spitzer should be treated worse then the next John, which means he may... [Read More]

Tracked on Mar 11, 2008 12:38:19 PM

» Spitzer Roundup from Sex Crimes
I don't have much new to add beyond my initial post on the subject of Spitzer. I'm just waiting to see if and when he will resign (I think it seems likely) and if and when he will be indicted [Read More]

Tracked on Mar 11, 2008 10:15:45 PM


Am I a bad person/legal academic for wondering what exactly the methodolgoy was that Ariely and Loewenstein used to prove their not-terribly-surprising thesis?

Posted by: Joseph Slater | Mar 12, 2008 12:10:29 PM

EN, This isn’t at all clear. Some operations allow the callgirl to take most of the cash. Unfortunately, because this industry operates in the dark we don’t know too much (beyond antidotes) about how much these women take home.

As to the relationship between “feminism” and class, this is an issue which people really don’t like to talk about. First of all, while the prostitution debate does have “feminist” overtones, as a legal matter it is not purely a “ladies” issue. After all, there can be male prostitutes. Once we can agree that this is a question of how prostitution should be regulated, the question becomes a matter of simply whether it should be a profession open to all, or just some, or of, say, law.

For example, as a practical matter, it is much easier for children of upper-middle-class or rich people to go to law school (not just for financial reasons), but this is a choice we have made in the profession. Do we really need to adjust the standards downward just so children of the poor can become lawyers? (There are good reasons to do, or not to do this. I err on the side of keeping thing the way they are.)

But, to get back to your suggestion, how about simply regulating and legalizing prostitution. Prostitutes (like exotic dancers) could enter into collective bargaining agreements.

Whether this is a “victimless” crime or not is a matter of perspective. There are prosecutors out there that attempt to attach some vague victim to every crime, and the Victims Rights Industry excels at this. Spitzer’s family does not seem to be playing the part of “the victim” and are not seeking the help of his political rivals to punish him.

I don’t know much about “Kristen.” You seem to be attributing the most awful characteristics to her. It is really a shame that any women that becomes caught up in prostitution is automatically assumed to be committing more crimes and come from an bad family. That simply isn’t fair. She should be able to defend herself before you condemn her from coming from a bad family. (And yes, I will admit that I don’t trust people that come from bad families.)

And come on, do you really think that the “prostitution” industry is nearly as sophisticated in developing a public relations message as, say, people that prosecute them? The prostitution industry, I would argue, is such a miserable failure at convincing people that what it does is worthy that it is illegal in most states. Some propaganda. Heck, I have not seen a single pro-prostitution billboard. Ever. Can you name a single senator that was ever accused of being the “pocket” of “big prostitution?."

In a way this is sad, as there is almost no discussion of the values of a prostitution industry (i.e. for the disabled, or for people with absent spouses). So, if anyone has won the prostitution propaganda battle, it isn’t the prostitutes, who are assumed to be drugged-out idiots that can’t fend for themselves in even a normal legal environment and never made a free choice in their lives.

Posted by: S.cotus | Mar 12, 2008 7:49:51 AM

As a feminist - and a man, by the way - I'm pissed off that Prof. Lobel should feel entitled to tell me that I should not be concerned with the working conditions, freedom of choice, exposure to STIs, job stability, risk of arrest, injury or death, or other facets of the exploitation of "Kristen" or those like her.

Really? Feminism is about poor women only? And this woman doesn't have problems?

Your suggestion that she pulls down $5000 per session, or even "$2000 after the company takes its share" is offensive. Her madam, or pimp, allows her to keep part of her tips and a straight fee for service. If you think that's going to be $2000, you're optimistic. You sound like Alan Dershowitz going on about how confident, comfortable, and probably sexually empowered these hookers are.

Do you think "Kristen" is addicted to drugs? Does she have a gambling problem, a man problem, a history of abuse or incest?

Just how much of the prostitution and sexploitation industry propaganda do you believe?

If this was a victimless crime, then Spitzer would have been unmarried, without kids who would be humiliated and scarred by this, and he'd have been in that hotel room with another Governor.

Posted by: Eh Nonymous | Mar 12, 2008 7:34:28 AM

Mr. Rosenthal, Most of your comment seems to be political in nature. Whether he will resign has little to do with the morality of the situation but pure politics and/or some strange plea bargain. Because I don’t vote and I have little patience for lawyers that see their craft as somehow a creature of “Democrats” v. “Republicans” the underlying tone of your comment is confusing. Perhaps it would make more sense to the few lawyers out there that run around saying “look how conservative I am” (or “liberal,” I guess) as means to attract clients or funds for their pet projects.

If Spitzer had asked me whether to patronize prostitutes, I would have asked: 1) do you really want to; and 2) if you really want or need to, please go to Holland or Nevada. Prostitution, as an industry is never going away, nor is the need to patronize prostitutes.

Out of curiosity, I would like to know your exposure to the world of prostitution. Here is mine:

1) I lived in close proximity to a “high class” callgirl ring. It has since been shut down by law enforcement and it was only afterwards that I could be sure that it was a house of ill repute;
2) I have spoken to numerous ex-callgirls; and
3) I have defended people accused of solicitation;
4) I read many periodicals that include advertisements for “in-call” services on the back pages (they also include legal notices); and
5) I have read numerous books on the subject.

I do not think that the current state of prostitution is anything we can be proud of. Most of it is not that glamorous. However, to paint it as all run by some mafia-like organized crime syndicates that abduct innocent women is simply going to far. For the most part, people are involved in small-time operations. Some of these operations are run by truly reprehensible people that abused their “girls” and some are run by more business-like characters.

Finally, while we are on the subject, maybe we can figure out the difference between a callgirl and someone that trades sex for expensive dinners and patronage positions in government.

Posted by: S.cotus | Mar 12, 2008 6:40:55 AM

It is hard to know what to make of the preceding posts. "Dave" seems unable to distinguish between the risks of extortion associated with going to the bathroom and those that inhere in patronizing a house of prostitution while the governor of New York, and "S.Cotus" cannot distinguish between the Governor's conduct and anything that is "legal, but embarrassing." The most charitable view one might take is that these two posters unfamiliar with the world of prostitution, including the reality -- familiar to most former prosecutors such as Governor Spitzer -- that most prostitution rings are controlled by organized crime factions that are eager for opportunities to extort vulnerable public officials (and often engage in covert videotaping for just this reason). But instead of carrying on in this vein, like the law professor I am, let me ask a question. Had Governor Spitzer come to you before the fact, and sought advice on whether he should patronize prostitutes, would either of you have told him not to worry, this is no different than going to the bathroom? I think not.

Governor Spitzer will soon resign, and the Democrats who are now pressuring him to do so understand full well the distinction that "Dave" and "S.Cotus" somehow are unable to grasp.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Mar 12, 2008 12:49:30 AM

Professor Chapman, I realize that you might be trying to score political points, but this is an elected position we are talking about here.

First of all, it isn’t clear whether he broke any laws in New York, and I he did not swear to uphold federal law (other than the constitution) or DC law.

Second of all, the people of New York, for better or worse, elected the guy. While, of course, he could be subject to impeachment by the NY State legislature, there would be a formal procedure for that, and he would be able to present mitigating evidence in his favor.

Third, you seem to be arguing that certain crimes (whether convicted or not and whether victimless or not) should “disqualify” someone from serving in office, regardless of whether “the people” want to vote for them. This seems very Iranian (as in, they do that in Iran.) Are you really asking that some body screen candidates (and sitting politicians) for the requisite “character.” How would this be any less political?

Fourth, probably many of us could be blackmailed over something. Some of these things are legal. Some are illegal. (Heck, I know what a lot of prominent lawyers did in college that they won’t want me blabbing about. Most of those things are legal, yet embarrassing. But I have class.) That doesn’t mean that we would not be good governors. Are you really in favor of a background and character check (a rather undemocratic process) instead of simply letting the voters and the political process decide who gets to be governor.

Your last sentence, “For that reason if not for many others, Governor Spitzer cannot be trusted with public office” pretty much seals the deal: someone in California doesn’t like the governor of New York, but is frustrated about not being able to vote against him.

Posted by: S.cotus | Mar 11, 2008 8:51:37 PM

While I'm sympathetic to Orly's position that prostitution should be legal (but also regulated to avoid exploitation or negative externalities), the fact remains that it's not. So while I generally think exposing politicians' sexual peccadilloes is a useless distraction from more important issues, Larry's point deserves careful consideration. Spitzer was, after all, the head of the state whose laws he broke, and formerly a high-level law enforcement official. Does this change matters? There are three reasons it might, none of which convince me.

First: "Spitzer broke laws he swore to uphold." This can't work; if the fact of lawbreaking alone were enough to disqualify public officials from office, then we'd bounce pols who got speeding tickets or jaywalked or built a house slightly in excess of zoning regulations. I think we've got to look past formal lawbreaking to something objectionable about the kind of lawbreaking at issue.

Second: "Spitzer's conduct indicates he's a sleazy character." Fair enough; the fact that he hired a hooker hardly makes him look like Mr. Wholesome. But does distaste for one's personal conduct warrant resignation from office? Obviously a debatable point, but if we open the floodgates to this kind of investigation, how far will it go? If we find out that a politician asked his wife to do some weird sex act, or that he smacked his kid in the face in a moment of anger, or that he got too drunk at a party and acted like a jerk, are these reasons we'd be willing to eject a politician from office mid-term? And do we want to encourage an already overzealous media to investigate further into politicians' professional lives?

Finally: "Spitzer's conduct exposes him to extortion." (Larry's argument above.) The scope of this one disturbs me too. Depending on your level of sensitivity, anything could be a basis for extortion: going to the bathroom, having intramarital sex, sleeping naked--these are pretty pedestrian activities, but if some peeping tom snapped a picture through a window, they could threaten to expose the pictures and embarrass the person regardless. The point is that risks of extortion are everpresent (and dependent on individuals' sensibilities, so that a shameless person would be unextortable no matter how egregious their conduct), and our political system shouldn't be determined by the possibility that someone might engage in illegal conduct (extortion or, e.g., blackmail).

Posted by: Dave | Mar 11, 2008 8:31:50 PM

What Governor Spitzer did should disqualify him from remaining in office, regardless of how one evaluates the issues in Professor Lobel's post. The sitting governor of New York not only broke the laws he has sworn to uphold, but, more important, he exposed himself to an enormous risk of extortion by the prostitutes he patronized. They could have pressured him not merely for money, but for all manner of confidential and highly sensitive information in exchange for keeping his secret. That risk is far from hypothetical; not long ago, the Governor of New Jersey seems to have been a victim of a not dissimilar extortion plot. For that reason if not for many others, Governor Spitzer cannot be trusted with public office -- surely the risk of extortion if he were to resume his extracurricular activities while remaining in office would be even greaster.

Larry Rosenthal
Chapman University School of law

Posted by: Larry Rosenthal | Mar 11, 2008 7:44:05 PM

Requiring a college degree in order for a person to prostitute themself seems like a wonderful policy construct if you completely ignore those without college degrees. It seems to me that a person without a college degree (i.e., someone with less career options) is exactly the type of person that needs the prostitution option to begin with. Otherwise we might as well require all janitors to have Ph.D's.

It seems to me that if we're going to play with people's lives via degree-barriers, those with college degrees should be specifically denied the ability to prostitute, since society subsidizes higher education the way it does and deserves a return on its investment.

Further, the very premises of the position are troubling -- that a person who hasn't attended college either (a) can't decide fully whether to become a prostitute; or (b) doesn't have meaningful job opportunities. I mean, I love art history and pot-smoking as much as the next person, but I don't find either very relevant toward either premise.

Posted by: John | Mar 11, 2008 6:54:16 PM

I generally believe that people should not be prosecuted for victimless crimes like voluntary prostitution.

That being said, I don't have much of a problem with prosecuting people who have vigorously prosecuted others for victimless crimes. Spitzer, more than almost anyone else, should know that there is a price to be paid for breaking the law. Providing a break for him when he has put many others behind bars is ridiculous.

Posted by: Dave | Mar 11, 2008 6:12:42 PM

Lindsay, This is a very interesting notion that you raise. After some thought, I think I disagree with you in part.

I do not see anything inherently contradictory about economic regulation and the feminist pro-prostitution view. While myself (and some feminists) would agree that prostitution should be legalized, yet subject to reasonable regulations, I do not see why the feminists would conclude that any licensing scheme for prostitutes should be necessarily open to women (and men) of all educational backgrounds. (I am not saying that educated people that become prostitutes are necessarily confident, but I don’t want to get sidetracked.)

Consider that feminists would likely all agree that women should be making the laws, or at least constructively participating in democracy. There is no necessary requirement that uneducated women be thrust into positions as judges, legislators, or the president. Instead, as I understand the relevant theories, the women would be expected to compete on the same playing field as men, and if the bar is high, it is high for everyone.

So, for example, if a state legislature was to decide to not only legalize prostitution, but set of a regime in which prostitutes would be required to have college degrees (sort of like teachers), I don’t see what the objection of feminists would be. Would they argue that the college degree requirement is sexist? Would they argue that women are accorded MORE choices if women from the lowest rungs of society (i.e. without so much as a BA) can be recruited into the ranks of prostitution? To me, it seems that the more sensible argument is that by requiring that potential prostitutes have a wide variety of career options, that any feminist goal is better served.

Posted by: S.cotus | Mar 11, 2008 4:48:18 PM

Bart, You should respect my culture. We want the best for our kids. And most people consider me a liberal. (I think the terms are oversimplifications.)

Posted by: S.cotus | Mar 11, 2008 4:27:14 PM

I think you have to be careful in advocating legalization of only certain kinds of prostitution - you suggest legalizing only these types of "high end global operation[s]" but the necessary implication is that prostitution ought to be legal only for those "confident, educated, empowered college or graduate students" who are eligible to work for these VIP operations.

Rather than only permitting already-advantaged persons to elect prostitution as a profession, it seems preferable to legalize prostitution for ALL but to heavily regulate it with wage/safety/health standards that can be enforced to protect the less confident, less educated persons who choose the profession.

Posted by: Lindsay | Mar 11, 2008 3:47:47 PM

"I would not want my daughter working in food service or at any job that pays less than $60 per hour."

Daddy's girl can't make less than 120k a year? Glad to have some insight into how out of touch conservatives are with reality.

There's a case to be made that people in positions of public responsibility who are liable to be blackmailed should not engage in activities likely to result in blackmail situations and which have been traditionally run by the mob.

If Spitzer hadn't screwed up so dramatically over the last year, maybe this would be a tragic story instead of the coup de grace to a career that was practically over already.

Posted by: Bart | Mar 11, 2008 2:44:40 PM

Look like a delightful place to work:

Posted by: henz | Mar 11, 2008 1:31:57 PM

I completely agree. Of course, when I first read the headlines, I assumed that Spitzer WAS one of the prostitutes.

As to the above poster who asks whether it would be “okay” if a daughter did this. There are many things that are unacceptable in some families. I would not want my daughter working in food service or at any job that pays less than $60 per hour. I probably would not want my daughter working in retail. I wouldn’t want my daughter working in a prostitution ring for the same reason that I wouldn’t want her working in food service: it is an unclean service profession.

Like it or not the “sex-related industry” is quite large in the US and abroad. Most of their activities are legal (i.e. dancers, dominatrixes, strippers, cashiers, bartenders, gaffers, actors, etc.). So, whatever the case, society has made its judgment. We can look into changing the constitution, but in the past few years people have been far more concerned with changing the constitution to prevent flag-burning or gay marriage then they have to limit peoples’ access to pornography or related stuff.

Posted by: S.cotus | Mar 11, 2008 1:06:56 PM

So it would be okay if your daughter did this?

Posted by: huh | Mar 11, 2008 12:09:23 PM

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