The irrationality of prostitution laws

Brothel, Turkey, circa 1950s

Everyone thinks they know what prostitution is, but conversations quickly break down over what gets included and what doesn’t. Is it prostitution if you only do hand jobs? Phone sex? Webcam performances? Peep-shows, stripping, lap-dancing? Some people include everything, others are very specific. To me, all the hullaballoo about which prostitution law is best is bizarre, given how many different kinds of commercial sex exist. Some of these appear in photos on this page: consider which you think should be called prostitution if you like, or note when you start placing conditions such as ‘If so-and-so exists, then thus-and-such, but if it’s only this-and-that, then…’

Pinks Theater, Times Square, G Alessandrini, 1995

In 2008 I published an academic article that tears into the ground on which prostitution laws are written: Sex and the Limits of Enlightenment The Irrationality of Legal Regimes to Control Prostitution, in Vol 5, No 4 of Sexuality Research & Social Policy. Its language is academic, though I always tried to avoid the worst, most pretentious and opaque language. The references cited are, I see, quite extensive and not the usual stuff in this odd field – and nothing from law journals, which I generally find unhelpful and self-serving, by which I mean they refer only to themselves and pieces of existing law, rarely with any insight into why the laws exist in the first place.

Barbershop, China

Abstract: To assess the reasonableness of projects to improve the governance of commercial sex, the author explores how rationality in its current hegemonic Western sense is a cultural construction, perceived differently across time and space within Europe. The author examines some aspects of how varying conclusions are reached about which legal prostitution regime to impose, taking into account the role of cultures, worldviews, and interpretation. The author avoids the conventional classification of policy by country that results in unsubtle and overdetermined nationalistic explanations. Current projects to govern prostitution show how the traditional Western idea of rationality fails to lead to social betterment. Worldwide, social policy on prostitution tends to follow Western cues, in seeming acceptance that West is the best, with the most progressive, most enlightened approach. The rational project is, therefore, not limited to European geography.

Key words: rationality; licensing; trafficking; evidence; interpretation

Massage parlour, Kathmandu

It begins: In this article, I examine concepts of rationality and social progress (in their hegemonic Western sense) as cultural constructions so as to assess the reasonableness of projects to improve the governance of commercial sex. Such projects take the form of legal regimes to control prostitution. The word prostitutionis neither a precise job description nor the designation of unequivocal or definite acts but rather an idea loaded with ambiguities and moral judgments. Social and feminist debates on this idea repeat themselves fruitlessly because there is no agreement on a single definition of prostitution; in fact, profoundly opposed worldviews come into play, with the result that participants talk at cross-purposes. The situation is even less viable when debates pretend to arrive at a system to govern prostitution.

I reveal how rationality is perceived differently across time and space by examining a few different European sites and cultural contexts. To look at some aspects of how varying and conflicting conclusions are reached regarding what to do about prostitution, I focus particularly on two concepts, trafficking and sex, taking into account the role of culture, worldviews, and interpretation in explaining varying perceptions.

I avoid the conventional approach that treats countries as wholly separable entities—an approach that results in unsubtle, overdetermined nationalistic explanations. I discuss the fact that many of those to be regulated avoid participating in regulatory projects (if they even know about them), rather prioritizing their personal convenience, goals, and financial advantage (apparently preferring to be marginalized, pitied, vilified, and criminalized). Finally, I reflect on how current projects to rationalize the governance of prostitution show the ways that rationality fails to lead to social betterment.

Local European phenomena provide the case study here, but these so-called systems are debated, and in theory applied, all over the world. The fact that the projects do not work in European contexts is suggestive. A strong panEuropean tradition holds that enlightenment rules social policymaking and that, once the right policy is identified, problems will be solved, at least for all supposedly reasonable members of society. Continue reading here.

Free sex after the 9th wash

As it happens, I did not know this article, difficult for ordinary mortals to even know about, has been hanging on a Columbia Law School website since 2009. It is very odd to think of people discussing my work who knows where, without my knowing about it. I’ve proposed other ways to think about things under the concept of The Cultural Study of Commercial Sex. More ambiguous pictures there and by following links.

Anyway, please share and cite the original article – there’s little like it out there, that’s for sure.

–Laura Agustín, the Naked Anthropologist

3 thoughts on “The irrationality of prostitution laws

  1. Cliente X

    I don`t see any IRRATIONALITY in prostitution laws. They just have other rationality, and in fact is one very reasonable in the way the logic of our public powers work.

    Many pro-rights activists haven’t realized that what is behind such laws is not a moral issue but an economic one. Keeping prostitution in an ilegal/alegal status means that everyone working in that sector will not be protected and can be abused easily, moreover all the huge money of this business will not be fiscalized and go through controllable ways so authorities can blackmail those people and political parties have a perfect way to finance them illegally.

    I think that their logic and rationality is perfect. Maybe u don’t understand or share it, but they are not wrong, they are just defending their interests.

  2. sa'eed

    Dr. Augistin, what do you think about the perspective that our society forbids prostitution as a consequence of women at large not being comfortable with men having the option of purchasable sex? All the justifications that are given for continued prohibition almost always center around preventing trafficking or pimps or whatever, and it’s as if the prohibitionists are afraid to mention the real reason: Controlling men’s sexuality.

    At one point prostitution was widely legal in the United States, and then over some decades it became entirely illegal. What was the movement that led to this? I’ve come across some stuff that suggests it was Christian women’s groups who agitated for prohibition under the argument that prostitution was harmful to families.

    Legalizing prostitution would not really in any way increase the welfare of the average female non-prostitute., but would be advantageous to men by giving them the option of legal and easy sex outside of traditional arrangements. But women at large don’t have any interest in granting this, because prostitutes lower the price of sex wherever they operate, which is why they are loathed by other women (and why women hate loose women who don’t even charge for sex.)

    Prostitutes in the U.S, then, are merely victims in the continued battle of the sexes, and their welfare will be bettered only when women — and society for that better — give men the legal right and permission to purchase sex if they so desired. But many a wife and girlfriend or woman looking for a husband instinctively does not want to grant that permission, and are okay with women who provide sex work being treated as disposable as homeless men.


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