Prostitution and a Free Society

Libertarianism is based on the timeless principles of individual liberty, commercial freedom, property rights, and a government strictly limited to the protection of these things. Therefore, libertarianism neither shies away from hard topics nor has to adjust its principles to remain relevant or keep up with the times. Consequently, libertarianism is viewed by some as a radical philosophy both as to the positions it holds and its intransigence in holding them.

The most common smear of libertarianism by conservatives is that libertarianism is an immoral philosophy. Conservative godfather Russell Kirk (1918–1994) maintained that “the typical libertarian of our day delights in eccentricity including, often, sexual eccentricity.” Conservative journalist M. Stanton Evans (1934–2015) has written about “libertarianism’s commitment to freedom at virtue’s expense,” “attack on traditional values,” “moral relativism,” and rejection of “objective standards of right and wrong.”

There are two things generally cited by opponents of libertarianism to “prove” that libertarianism is immoral: the libertarian positions on drug use and prostitution. These are the usual sticking points, not because libertarians promote, approve of, or condone these activities, and certainly not because they just want to legally partake of drugs and patronize prostitutes.

The libertarian position on drugs is straightforward:

There should be no laws at any level of government for any reason regarding the buying, selling, growing, processing, transporting, manufacturing, advertising, using, possessing, or “trafficking” of any drug for any reason. All drug laws should be repealed, all government agencies devoted to fighting the war on drugs should be abolished, and the war on drugs should be ended completely and immediately. There should be a free market in drugs without any government interference in the form of regulation, oversight, restrictions, taxing, rules, or licensing.

Progress has been made when it comes to drug freedom, even though this is limited to the medical use of marijuana (legalized in 38 states) and the recreational use of marijuana (legalized in 24 states). However, such is not the case when it comes to prostitution.

Prostitution

It has been said that prostitution is the world’s oldest profession. In the first book of the Bible (Genesis), it is recorded that Judah — the fourth of the twelve sons of Jacob and the patriarch of the tribe of Judah — saw a woman (who turned out to be his daughter in law) with her face covered with a veil sitting “in an open place,” assumed she was a prostitute, negotiated with her, had sex with her, and ended up impregnating her. Prostitution existed in the Byzantine, Roman, Greek, and Egyptian empires. As long as there are men in the world, there will be clients for prostitutes regardless of its illegality, risk, and stigma, or the state of the economy.

According to Business Insider, there are 40 to 42 million prostitutes in the world, with 1 million of them in the United States. Three quarters of prostitutes are age 25 and younger, and 80 percent of them are female.

The legality of prostitution varies from country to country and within political divisions of countries. According to Britannica’s ProCon.org — “the country’s leading source for information and research on all sides of the debatable issues of the day” that presents “sourced pros and cons of debatable issues, as well as a host of reference information relevant to those issues, thoroughly researched” —

• In some countries, prostitution is illegal. In other countries, it is legal to sell sexual favors but illegal to buy them.
• In some countries, prostitution is legal and unregulated. In other countries, prostitution has just been decriminalized.
• In some countries, prostitution is legal but brothels are not. In other countries, prostitution is limited to just brothels.
• In some countries, prostitution is legal on the national level, but subject to restrictions and regulations at lower regional levels of government.
• In some countries, advertisements for sexual services are permitted. In other countries, soliciting in a public place for sex work is a criminal offense.
• In some countries, prostitution is neither expressly permitted nor prohibited. In other countries, prostitution is legal but is licensed, taxed, and regulated.
• In some countries, prostitution is illegal, but escort services and massage parlors are allowed. In other countries, prostitution is legal, but pimping or procuring is not.

And of course, child prostitution, human trafficking, and coerced prostitution are illegal in every country, although these things are known to exist in some countries.

Prostitution laws in the United States are surprisingly more stringent than similar laws in most countries in Europe and South America. But this should come as no surprise since the United States is one of only three developed countries in the world with a nationwide drinking age over 18. However, the uniform drinking age is not the result of a federal law. The National Minimum Drinking Age Act of 1984 mandated that the states raise their drinking ages to 21 or their federal highway funding would be cut by 10 percent beginning in fiscal year 1988.

Likewise, prostitution in the United States is a state crime, not a federal offense, so it is up to each state to make its own laws regarding prostitution. Every state could legalize or decriminalize prostitution and the federal government would have no authority to do anything about it. However, this doesn’t mean that the federal government wouldn’t do anything about it. Although the medical and recreational use of marijuana has been legalized in many states, marijuana is still illegal on the federal level even though the federal government has been granted no authority by the Constitution to have anything to do with marijuana or any other drug.

Prostitution is illegal throughout the United States except for 10 of Nevada’s 16 counties. However, prostitution in Nevada is illegal outside of licensed, regulated brothels, and only six counties have active brothels. Only counties with a population of under 700,000 are permitted to have brothels, and brothels are prohibited from being located near schools, churches, or a main road. Thus, Clark County (home to Las Vegas) and Washoe County (home to Reno) are not permitted to have brothels even though illegal prostitution is rampant. All Nevada prostitutes must undergo regular medical checkups, and in most counties must be at least 21 years of age. Brothel advertising is strictly regulated. Annual brothel licensing fees vary by county, from $100,000 to $200,000, and brothels pay a variety of county taxes.

Libertarianism

Like the vast majority of other Americans of every political stripe — liberals, progressives, moderates, populists, conservatives, constitutionalists — libertarians would generally prefer that prostitution not take place in their city, town, or neighborhood. And neither would they want their wife, daughter, aunt, mother, grandmother, granddaughter, mother-in-law, niece, or sister to be involved in prostitution. Most libertarians — just like most Democrats and Republicans — would even say that prostitution is shameful or immoral.

Because laws against prostitution are all state and local laws, the libertarian arguments against prostitution laws are more narrowly focused than their arguments against drug laws. There are two basic arguments against prostitution laws: the philosophical and the practical.

The creed of libertarianism is nonaggression: freedom from aggression, force, and violence by individuals or governments against person and property as long as one respects the person and property of others. Whether an action is immoral is important but not the concern of libertarianism, which is solely a political philosophy. Libertarians believe that as long as people don’t violate the personal or property rights of others, and as long as their actions are peaceful, their associations are voluntary, and their interactions are consensual, they should be free to live their lives without license, regulation, interference, or molestation by the government. Libertarians believe in the natural right of consenting adults to do whatever they want on their property, or with the owner’s permission on someone else’s property, as long as they don’t aggress against someone else’s person or property while doing it. This has to include prostitution. The difference between libertarians and everyone else is that they don’t believe in using the power of government to prohibit, regulate, or punish voluntary, consensual, peaceful behavior that they may not personally approve of. Prostitution should be legal because it is not the purpose of government at any level to regulate or monitor Americans’ sexual activities or be concerned with how people choose to make a living.

There are numerous practical reasons for rejecting laws against prostitution. People who support laws against prostitution do not generally support laws against fornication and adultery. Why does the introduction of money turn fornication and adultery into criminal offenses? Why is prostitution a crime but other immoral activities are not crimes?

If it is legal for a woman to provide free sexual services to as many men as she wants, and as often as she wants, then how can it be illegal for her to charge for her services? How can something that is legal to give away be illegal if one charges for it?

Why is paying someone directly for sex considered a crime, but paying a girl indirectly for sex with dinner and a movie not considered a crime?

Why is it legal for someone to be paid to have sex to produce a pornographic movie that will be seen by hundreds or thousands, but illegal for someone to be paid to have sex in the privacy of a home, hotel room, or massage parlor that no one but the participants will see? How can engaging in sex for money be legal in the first instance but illegal in the second? How can the presence of lights, a camera, a script, a director, and a film crew turn an illegal act into a legal one? Why are most Americans who are not in favor of the government’s outlawing pornographic movies at the same time in favor of the government’s outlawing prostitution?

The practical arguments against prostitution laws are logical and consistent.

Why is prostitution illegal?

Prostitution is illegal because of the failure to separate it from real crimes. Opponents of relaxing prostitution laws regularly, but wrongly, associate prostitution with coercion, compulsion, intimidation, and exploitation. Some even maintain, again wrongly, that all prostitutes have pimps or handlers that are likely to get them hooked on drugs so they can be controlled or blackmailed if they try to quit. Prostitutes are always portrayed as victims who would never sell their bodies unless they were forced to do so. I think that many sex workers would feel insulted by these generalizations.

Forced prostitution, human trafficking, child prostitution, assault, sexual exploitation, rape, trespassing, public nudity or sex, and kidnapping are real crimes, and no libertarian would defend or excuse them, and no free society would approve or tolerate them. Just because some acts of prostitution may involve some of these crimes is no reason to ban prostitution itself.

Writing in “Vices Are Not Crimes: A Vindication of Moral Liberty” (1875), the classical-liberal political philosopher Lysander Spooner (1808–1887) explained  the difference between vices and crimes this way:

Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another. Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.

Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property, and the corresponding and coequal rights of another man to the control of his own person and property.

Vices may be immoral, they may be addictive, they may be ruinous, they may be foolish, and they may be sinful, but crimes they are not. Having bad habits, exercising poor judgment, engaging in risky behavior, participating in dangerous activities, performing immoral actions, and committing vices are not, in and of themselves, crimes. Only actions that cause harm to others or their property without their consent should be crimes. What is immoral or imprudent should not necessarily be illegal or criminal.

Prostitution is illegal because of the failure to realize that every crime needs a real victim — not a potential victim or a possible victim, but a tangible and identifiable victim who has suffered measurable harm to his person or measurable damages to his property. There should be, as far as the law is concerned, no such things as nebulous crimes against religion, nature, society, humanity, civilization, the greater good, the public interest, or the state. This does not mean that certain victimless crimes are not immoral, sinful, or dangerous. It does not mean that some victimless crimes don’t have negative consequences. And it certainly does not mean that any or all victimless crimes are wholesome, beneficial, or healthy. Committing victimless crimes may be addictive, unhealthy, unwise, risky, irresponsible, injurious, dangerous, immoral, ruinous, sinful, or just plain stupid, but it is not for the government to decide what risks people should be permitted to take and what kinds of behaviors they should be allowed to engage in.

Prostitution is illegal because of the failure to recognize that it is not the business of government to legislate morality. There is a big difference between not approving of someone’s actions and thinking the government should arrest, fine, and imprison people for doing something people don’t approve of. Libertarians simply believe that what consenting adults do on private property is none of the government’s business as long as their actions are peaceful, private, voluntary, and consensual; as long as those who freely and willingly participate in such acts are not harming or violating the personal or property rights of nonparticipants. This is still true even if the majority of Americans don’t approve of what they are doing.

Prostitution is illegal because of the failure to understand the proper role of religion. Most Americans identify as Christian, or at least nominally so. There is nothing in the Christian’s rule of faith — the New Testament — that says or implies that Christians should support laws against prostitution. Culturally conservative Christians can personally believe prostitution to be not just immoral but sinful, debauched, evil, shameful, wicked, depraved, lewd, unholy, lascivious, degenerate, unclean, licentious, filthy, and indecent, but that doesn’t change the fact that there is no warrant in the New Testament for Christians to support the government arresting, fining, and/or imprisoning prostitutes, pimps, or johns — as long as they are not aggressing against anyone or violating anyone’s property rights. The object of religion is to change men inwardly, not use the power of the state to change men outwardly.

Prostitution is illegal because of the failure to acknowledge that it is the business of families, friends, acquaintances, associates, pastors, ministers, counselors, coworkers, churches, religious organizations, nonprofit foundations, and social institutions to shape Americans’ moral values and educate them about the nature of prostitution, but that it is never the job of government to do so.

Conclusion

Libertarians who say that prostitution should be legalized but then add caveats like the government should discourage, limit, or regulate prostitution; perform medical exams of prostitutes; offer housing or job training to prostitutes; register or license prostitutes; or that the private sector needs to do this or do that before prostitution can be legalized show a lack of faith in a free society. They want to grant to the state duties that it should never have. The government should not be discouraging or encouraging any specific behavior, and neither should it be regulating anything. If prostitution were legal, there would be no shortage of individuals and organizations — secular and religious — to discourage women from becoming prostitutes, encouraging them to get out of the sex-work industry, and helping those who want help to reform their lives. In a free society, prostitution is a choice, not a crime. It may be an unwise choice and an immoral choice, but in a free society, it is an individual choice that should not be the concern of government.

This article was originally published in the November 2024 issue Future of Freedom.

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