I

Although it might seem on the surface to have little overt relationship, the issue of private gun ownership is analogous, in many respects, to the pro-liberty arguments for the right of a woman to do what she wishes with her body. Both arguments, although they may at times advert to legal issues, rest on certain moral notions that are taken as prior. Hugh La Follette has written, with respect to the issues surrounding guns and gun possession:

The parallel here with the argument that is frequently given – that prostitution is a ‘victimless crime’, it is of economic benefit to some women (and some families), it is the woman's body, and so forth – is strong. Both unrestricted private gun ownership and unrestricted/unregulated sexuality may appear, on the surface, to be so much a part of some conception of liberty that, as La Follette says, ‘it would not be enough to show that society would benefit’. On the other hand, paraphrasing what he goes on to say, because other sorts of harms frequently occur in a collateral sort of way with respect to these ‘rights’, establishing them requires stringent argument.

From the free enterprise or economic point of view, many take Robert Nozick's arguments to be of strong importance. As he says in a well-known passage in Anarchy, State and Utopia, take your favorite distribution – then alter it with the ‘Wilt Chamberlain’ example. If individuals voluntarily pay Wilt an extra $.25 per game, and he becomes extraordinarily wealthy, how does this voluntary exchange alter anyone else's incontrovertible right? As Nozick himself says,

It is clear that those who support a similar view of voluntary sexual activity will, indeed, construct parallel lines of argument. The strong version of this stance remains comparatively unmoved by the fact that Chamberlain's playing basketball does no discernible harm, whereas the same cannot be said (again, according to some lines of argument) about paid sexual acts. In fact, members of ‘C.O.Y.O.T.E.’ and other sexual freedom groups of the 1970's frequently cited the known ‘performances’ of individuals as examples of free exchange for special services.Footnote ³ So one is immediately left with a difficulty at the outset – although parts of the pro-sexual services argument can well be held to be analogous to much of Nozick's classic commentary, the dangers (if one accepts the notion of danger) associated with prostitution are probably much more along the lines of those associated with unregulated gun ownership. Although prostitution is unlikely, in most cases, to result in the immediate danger of a death or harm such as might be caused by a firearm, it can be argued that it has serious physical and psychological health consequences for many, and that, legal or not, its mere presence is demoralizing to a neighborhood or town.

II

Not surprisingly, there is a counter-argument to the libertarian concerns that runs, tersely, along the lines of denial that any prostitution is actually voluntary. Linking prostitution to the porn industry, but also acknowledging its sometimes quasi-independent status, Catharine MacKinnon has argued that the notion of voluntariness does not genuinely arise in this context. Part of MacKinnon's argument is at least implicitly economic, but another part of the argument relies on a straightforward analysis of sexual politics. MacKinnon writes:

MacKinnon's stance is not only overtly feminist, and in a way extremely contemporary; it also harkens back to a number of Marxist lines of argument, some articulated by Marx and Engels themselves in the middle of the nineteenth century. Here an analysis of the social structures at work, the place of the family/patriarchy in those structures, and so forth, yields the notion that woman's very being in a social structure is itself, at bottom, a form of prostitution, and so there is very little that is voluntary in women's sexual lives. MacKinnon herself has often made similar points.

The commodification of women is so old that – at least on certain lines of analysis – it does not make sense to think that we would have the social structures that we have today without it. Although much of the Marxian analysis is contained in works such as On the Origin, references to prostitution and to bourgeois forms of sexuality are to be found throughout works by Marx and Engels. As Lise Vogel notes, the mid-nineteenth-century Communists had to respond to the concept that women would be communalized under their rule. The obvious response was that women were, already, so communalized. Vogel writes:

All of these contentions remind us of MacKinnon's core point: it is difficult to know when and how prostitution could be voluntary. That this is the subject of intense current debate should not be surprising, given the number of twists and turns that various gender topics have brought forth. Although there is a strong disagreement within the ranks of feminist theorists who have addressed these issues, the split mirrors the classic break that we have examined here – one group is inclined to say that what a woman does with her body is her business, and another group is tempted to assert that there is no such thing as an actual willingness to be a ‘sex worker’.Footnote ⁶ Jessica Spector, in the introduction to her fine anthology of recent work on the topic, notes that even among feminists involved in the related issues of pornography and prostitution, ‘A quick comparison of …attitudes toward prostitution and pornography reveals a dichotomy of thought: prostitution is illegal and socially condemned, while pornography is generally legal…’Footnote ⁷

In addition, there is also the question surrounding social science research that purports or alleges to be about prostitution, but that is actually about something else. Gail Pheterson, in The Prostitution Prism, has noted the extent to which ‘prostitution’ becomes a social science coat rack, an area of analysis on which to pin research in a number of other areas that – taken simply – often have very little relationship to prostitution.Footnote ⁸ Research on HIV/AIDS, for example, will frequently try to tie its occurrence to ‘prostitution’, when it is clear that the overwhelming number of cases involve other, discrete phenomena.Footnote ⁹

If the debate about prostitution mirrors, in its complexity, nineteenth century debates about free markets, redistribution, and so forth, it is probably because, at bottom, the nexus revolves around money.

III

Because prostitution is a global phenomenon, and a potential source of income in a range of nations from first-world to fourth, the notion of ‘choice’ may undergo a variety of permutations. Even if one were inclined to give the libertarian argument some minimal credence with respect to the more industrialized nations, it is hard to know what to make of it in other contexts. As is well-known, families in a variety of developing areas may actually ‘sell’ their daughters into prostitution, or may make it seem an attractive way of life because of the financial arrangements of the family. Thus individuals working in the red-light districts of Bangkok or Bombay may, at least on occasion, claim that they are performing such work voluntarily, but here a staggering array of cultural factors comes into play. Indeed, in these situations the cultural constraints remind the observer of the set of paradoxes surrounding such phenomena as FGM. Just as most Westerners find genital mutilation and infibulation practices abhorrent, so most find the idea that cultural or familial factors might make prostitution attractive in some circumstances equally abhorrent. Again, both sets of practices have health connotations, and both are at least to some extent frequently defended by women in the cultures in question. (Indeed, with respect to FGM, many in the West are surprised and dismayed at the lack of knowledge about the dangers of the practice even among the more educated classes in the affected nations, and they are also surprised by attempts to defend it.)Footnote ¹⁰

Pheterson notes that the statistical occurrence of abandoning children due to poverty itself is a phenomenon requiring analysis, and, again, that prostitution or sex work resulting from these factors is typically seen differently by authorities than other forms of activity. She writes:

This line of argument, like those derived from Marxian analyses, makes two points simultaneously: it calls into question the ‘voluntariness’ of the activity, while also questioning why it is that those who are the ‘sex workers’ engaged in sale seem to be the ones most stigmatized by social structures, when others who might be deemed more culpable – if culpability is in question here – are seldom so stigmatized. In short, the nexus of questions surrounding much of prostitution in developing nations undercuts the notion of a genuine sort of volitional control, and throws the argument over to victimization, tradition and abandonment. Those who would still insist that such acts are to be permissible, or at least not illegal, in a non first-world context often fail to grasp, as we have indicated, that other crucial issues (including health issues) are at stake.

IV

Even supposing that we can attach a degree of voluntariness to ‘sex work’ in the first-world context – to return to our examples of brothels in Nevada, for instance – there still is the sort of response that was hinted at in the opening of our work, the notion that the counterarguments here are so strong that one would have to invoke a forceful conception of a ‘right’. The reason that compelling state interest has often been brought to bear on this topic from a jurisprudential standpoint is that there is more than one sort of social harm that is known to accrue from prostitution. Even given the most stringent safeguards, the dangers to the woman's health are overwhelming; it is not merely a case of transmittable diseases, but of psychological damage, the potential for physical abuse, and so forth.

But probably more important is the set of desiderata for any community, in terms of the welfare of its citizenry, the potentials for neighborhoods, and more. Prostitution, even carefully monitored legal prostitution, tends to reinforce the very attitudes toward women that lead MacKinnon and others to call for international responses to the plight of females. Its very presence inculcates notions that women are sexual objects for purchase, and it cannot but have a demoralizing and depressing effect on a community. (Indeed, the subject of brothels in Nevada tends to be a target of laughter and ridicule, even among Nevada's citizens, and even among those who would, at least on principle, want to forward the libertarian argument.)

As Pheterson has argued, every facet of the general topic of women and prostitution seems to be two-edged, and in a way that is always to the detriment of women. She writes:

Here Pheterson recapitulates lines of analysis employed here: there is no question that prostitution is degrading, but it is merely an offshoot of the general structures of heterosexual power. It is, on the other hand, one of the most highly stigmatized and, again, dangerous of these offshoots, and in that sense – like the original question of gun ownership – pushes into the area of compelling state interest simply on the basis of potential harm.

Whether or not prostitution, or ‘sex work’, can ever be said to be truly voluntary, there is no question that a great deal of it is done not simply for financial reasons, but for reasons that have to do with the finances involved in rearing small children. Indeed, as Pheterson also notes, prostitutes may be even more statistically likely to be mothers than women in their age group in the general population.Footnote ¹³

Finally, prostitution would not be the focus of work on global bioethics and research done through NGO's were it not deemed to be a significant health and welfare problem. Again, the worker runs up against tradition and misunderstanding – sometimes women researchers in these areas are themselves labeled prostitutes, as has been reported by Martha Chen and those working with the Bangladesh Rural Assistance Committee. But more often tradition, however misogynistic, is supported to some extent by women themselves, because they deem it to be of fundamental importance to themselves and others.Footnote ¹⁴ First-world assistance workers and others persevere, however, because strong lines of argument support the notion that the harms of prostitution and sex work – whatever label is employed – outweigh any benefits. Here, the analogy is not only to a topic such as firearms, but, inevitably, to illegal substances; some such substances are a good deal more dangerous than others, and those who would legalize all illegal substances, of whatever kind, are in a distinct minority and have generally been voted down whenever such attempts have been made.

V

We have been trying to examine arguments that would, on libertarian grounds, support the notion that a woman has the right to control her own body and to engage in sex work as she so chooses. We began with the notion, borrowed from La Follette, that if such a fundamental right exists, very strong arguments would have to be made against it in order for jurisprudential work in this area to have the upper hand. But strong arguments do exist: the health and welfare of the individual woman and the surrounding community are at stake, and although Marxian and radical lines of argument to the effect that male/female relations are inevitably ones of power and dominance may prove appealing, they surely do not move in the direction that the more blatant the dominance and exploitation, the more social constraints should be eased.

Rather, taking the more radical arguments together, the fact that heterosexual gender relations tend to be exploitative should, if anything, push in the direction of showing compelling state interest in regulating prostitution. In all nations, and not simply developing countries, young women are propelled into early marriages; they do enormous amounts of work in the home and community with little or no recompense, and the social construction of the situation is still such that the rare young woman who speaks out on these matters is unlikely to be heard. But surely trying to educate against the dangers of early marriage and motherhood is tantamount to further education about, and social pressure against, sex work in general and prostitution in particular. For the latter holds almost all of the dangers inherent in the more standardized heterosexual relationships (as Marx and Engels had said), and some pernicious features of its own.

It is an interesting sidenote that a number of small and ethnically constrained nations (countries that might be thought to be ripe for the ‘level playing field’ argument that is frequently brought forward by libertarians) have far from libertarian socioeconomic structures. Indeed, one could hardly find a nation better suited to a libertarian experiment in government and finance than Iceland. But the latter is one of the Scandinavian models of state-controlled economies, and goes a long way toward showing that, however appealing they are in theory, libertarian arguments are seldom instantiated in functioning judidical codes.