Let us suppose you are young and single. One night, while out on the town, you meet a young lady (or gentleman) who agrees to come home with you. Over the course of the evening, your companion mentions that if she (or he) is going to leave her (or his) friends behind, she'll need a cab to get home, and asks if you can help pay the fare. Or, perhaps, she mentions that staying out all night will mean having to pay the babysitter more, and asks if you can help with the cost.
Is this prostitution?
How about if this person makes it more explicit? Say, saying something along the lines of "You want me to sleep with you, and you won't give me $20?" Or "you expect me to go home with you, but you won't pay for my sitter?"
How about if this other person does not make even that explicit a demand, but does something a bit more subtle, such as acting in such a way that it is obvious she assumes you will pay for her drinks? Or maybe a little more forthright, and actually asks you to buy her a drink? Or maybe asks you to take her out to eat first?
Not enough to be prostitution?
How about if she asks you to pay to get her car out of a parking lot? Or instead says she is short and asks to borrow money to pay for parking?
I know, this is an old question, at least in some circles, with many who do not care for traditional relationships asking what is the difference between demanding dinner and a movie and demanding cash up front. However, I think these questions are important, and, to be honest, they are asked many times a month in our modern world, as police often have to wade through such questions when trying to make cases for prostitution.
For example, assume a young lady joins you, makes it clear she is interested in you, even agrees to go home, then asks, as you are now friends, if you might loan her a small sum? It could be a description of a relatively innocent, if a bit rapid, relationship, or it could be a dodge to cover prostitution, in fact a rather common one, as, by separating the promise of sex and the request for money it makes the case a little harder to make. On the other hand, for those of us who grew up in these more promiscuous times, especially those who moved in circles where sexual mores were rather liberal*, how often have we been asked for money by someone we were either sleeping with, or in whom we had an interest? How many times did the pattern which could be concealed prostitution occur in more innocent, or at least less mercenary surroundings?
But, were they? If the other party was implying she would trade sex for money, while you simply thought she was asking for a friendly loan, as well as expressing interest in you, then was it prostitution or not?
This is the problem I wanted to discuss, as it shows quite clearly how our modern view of sexuality has made prostitution even more difficult an issue than it was in the past**. You see, in the past, sex was seen as properly taking place within marriage, or, if not only within marriage. Men might have mistresses, or might chase after "loose" women, but that was seen as improper. Of course, not all improper sex was prostitution. Some was simply the domain of immoral men and women. However, when sex took place, and money exchanged hands, it was pretty clear that it constituted prostitution. Be it a street walker or an established mistress, asking for money was prostitution.
But that simply does not work today. With sexual relations being viewed as not just acceptable, but normal, between people with little previous connection, it is quite possible for people to meet, agree to have sex, and also exchange some sort of money, on any number of grounds, without any intent to pay for sex. And, if we allow for some previous contact between the parties, then it becomes even more common, and even more probable the incident was entirely innocent. Because sexuality is no longer limited to marriage, the coincidence of some sort of financial exchange and some sort of sexual connection is not at all uncommon, and so what was once prima facie evidence of prostitution is now nothing of the kind.
Of course, as many will point out, most prostitution is still of the plain "sex for money" kind, and just as easily proven, and they are right. My point is, once we allow for some degree of sexual freedom, we also must accept that many exchanges which are indistinguishable from prostitution will arise in entirely innocent ways, meaning that many will continue to find it puzzling that explicit exchanges of sex for money are disallowed, while many exchanges which are almost indistinguishable are allowed.
Some may take this argument and draw thew opposite conclusion, that we do not need to reexamine our stand on prostitution and the law, but instead should return to those times when society and the law were more intimately involved in personal sexual matters. I would disagree, at least in part. As far as individual and societal morality is concerned, I cannot object to those who wish a more traditional view. I do not necessarily agree with their position, but I believe if we are going to enforce individual ethics, that social controls are the way in which it must be done.
Which is why I say they are wrong, in part, as the other half of their argument, that of restoring the law's role, I believe entirely incorrect. As I have said repeatedly, the place for the law is in protecting our rights from violation by others, it is not to ensure our behavior follows any pattern, other than respecting others' rights. Society is free to apply pressure to change our behavior, others are free to ask us to act in certain ways, and to call us to task when we violate collective norms, but the tool to use is not the law, or the state. Society is free to expect certain behaviors, but those expectations must still be enforced through non-coercive, private means. Force must be reserved for the protection of rights.
Which actually explains why I am opposed to laws about prostitution as well. Whatever can be said about prostitution, it clearly does not violate anyone's rights, and so, whatever we may think, it is not a fit subject for legal action. Which, now that I think about it, makes all the preceding arguments rather pointless, as a better argument was available all the time. Still, it never hurts to take a look at something from a different perspective, so I will leave the essay as it is. Futile it might be, but at least it offers yet another argument for why we should limit the state, and keep its out of a lengthy list of matters.
* Without providing a lengthy personal history, I spent much of my teen years as a punk rocker, associating with like minded souls. I was later involved briefly with the late 80s hippie revival, after which I began to associate with collegiate art students and philosophy majors, two groups with which I would remain in contact throughout my twenties. So, as should be obvious from that description, I spent a lot of my early life around those who professed the most liberal views on sexuality.
Of course, none of this is the basis for my argument that prostitution, among other "victimless crimes" should be decriminalized. My primary argument is, quite simply, that an action which does not violate the rights of another should not be illegal. The state should limit itself to protecting against force, theft and fraud, and the rest should be controlled, if at all, through the reaction of the community, with private disapproval serving in the place of the present laws. In this way I think it would be quite easy for most communities to keep themselves free of overt prostitution. (Quiet, discreet prostitution will likely, as it does today, continue unnoticed by most.) And we shall enjoy the benefit of having police free to better serve us in pursuing criminals who represent a real danger, while the state will have that much less power over us.
Of course, I doubt this will prove a popular argument, as most conservatives tend to disagree with me. And, unlike most libertarians, who charge forth waving banners for NORML, I recognize prostitution and drug decriminalization are not wildly popular causes, and I would not make them my primary focus. However, I find I do have to mention them from time to time, if only to remind us that sometimes defending liberty means defending causes with which we have little sympathy, and yet that is the price we must pay. Freedom includes the freedom to do things we find distasteful, to adopt stands with which we disagree, and otherwise to do things we find disagreeable. Or, as I put it elsewhere, freedom is the freedom to be wrong, stupid and obnoxious. But it is important that we defend the rights of those we find so offensive, if for no other reason than that, to someone, somewhere, we are just as obnoxious and offensive, and so, unless we defend the rights of those we detest, we may one day find we are the detested minority being forced to do "the right thing" by others.
Many liberals, and some libertarians, try to argue this point with the slogan "you can't legislate morality", which is a completely nonsensical position. Laws are nothing but legislated morality. What other basis exists for insisting we respect the rights of others?
I think they mean something along the lines of "you cannot legislate personal morality", but even there they may run into issues, as private morality clearly plays a role in those moral codes which govern interaction with others.
No, what they should argue is that the law has but a single purpose, and that is to protect individual rights. Thus, to use the law to try to protect us from our mistakes, or our bad decisions, when those choices in no way threaten the rights of others, is to misuse the state.
But, saying that would involve explaining quite an elaborate view of government, and one not much in vogue today, so perhaps it is best that they stick with simple soundbites, no matter how erroneous.
For those interested in a more thorough examination, I suggest "The Case for Small Government" and the many essays it cites. I would also recommend "The Problem of Pornography" and the series of essays "In Defense of Discrimination", "A
Statute of Limitations for Race", "How
the Web gets It Very, Very Wrong" and "The Danger Inherent in Banning "Bad Ideas""", all of which deal with relatively unpopular positions, while explaining why it is important to take a stand which so many emotionally oppose. And finally, I would suggest "Contradictory Beliefs and Practices", which takes a short look at why those who claim to oppose state control of the conscience, so often take steps that encourage just that.
Addendum (2012/11/24): I noticed that, in a few places, I apparently stopped writing for a while and picked back up without finishing the first thought. At least one sentence, the one about sexual relations being seen as properly taking place only within marriage, was left clearly unfinished. However, as I do not remember what my thought was, I cannot easily go back and fix it. So, flawed as this essay may be, I don't see an easy way to fix it. Thus, I will simply point out its flaws and admit to my mistakes.