Prostitution is one area where the old “fusionism” between religious conservatives and libertarians shows special wear. The former say it goes against God’s law and social order, while the latter say consenting adults have a right to control their own bodies. I advocated for legal prostitution as far back as 2008 in the Rocky Mountain News, and my idea was no more successful than the paper’s future.
At the same time, libertarians often also are at odds with progressives, who worry prostitution inherently exploits sex workers. This is one area where conservatives and progressives often agree on a prohibitionist regulatory approach.
I was surprised, then, to see a bill come up in the legislature this year to “Decriminalize Adult Commercial Sexual Activity,” as Senate Bill 26-097 is titled.
What the bill does
As introduced on February 11, SB 97 declares, “An adult who engages in consensual commercial sexual activity with another adult does not violate state law or an ordinance, resolution, regulation, or code adopted by a statutory or home rule city, town, city and county, or county.”
I agree with the bill’s rationale: “Criminalizing prostitution endangers adults who engage in consensual sexual activity. Fear of criminal punishment among consenting adults engaged in commercial sexual activity encourages physical, emotional, and structural violence against sex workers, subjects them to economic crimes, and increases resistance to harm-reduction practices. Sex workers are less likely to report these crimes or seek medical help following an assault.”
Largely the bill is about wiping out existing statutes on the matter; hence “decriminalization.” However, the bill does leave pimping as a Class 3 felony. But if people have the right to become sex workers, don’t they also have the right to work with others to help coordinate, uh, gigs? Making prostitution legal while outlawing pimps is a little like keeping house sales legal but outlawing real-estate agents.
Ridiculously, the bill invokes the emergency “safety clause” to evade a potential referendum.
Obviously the big push-back will be from counties and municipalities, many leaders of which will argue that they should be able to outlaw prostitution outright in their communities or at least heavily regulate it. My sense is a bill like this will go nowhere unless it preserves substantial local control, including the ability of localities to keep prostitution illegal.
See Jesse Paul’s report for the Sun for additional details, including sponsor Sen. Nick Hinrichsen’s explanation of why he regards the bill as decriminalization but not Nevada-style legalization. See also reports by Westword and the Denver Post.
An argument about trafficked children
On its face, SB 97 is about sex among consenting adults. Obviously forcing anyone into sex remains a crime under the bill. And no one thinks minors have the capacity to consent to sex work.
Still, former sheriff and senator John Cooke, who was surprisingly sympathetic to the idea of decriminalization, nevertheless expressed worries about the bill.
As Sherrie Peif reports for Complete Colorado, Cooke shared the concern (in Peif’s words): “It would likely make child trafficking worse because it would shift traffickers attention away from adult victims to more children.” Sex trafficking of children, horrifically, remains an ongoing concern, as a report from the Common Sense Institute indicates.
I don’t think the claim is true, however. My guess is that most people who pay for sex with someone who has been trafficked (forced into it) don’t really want to have sex with a trafficked person; they just want to have sex.
Yes, there are some deranged sickos out there who intentionally seek sex specifically with children. We should consider that a very-serious crime worthy of lengthy prison sentences. The answer to that is robust enforcement and prosecution, and maybe some legislative tightening (see Scott Bottoms’ bill, for example).
But I think, for the most part, decriminalizing prostitution would shift most of the demand away from trafficked people, including children (who may be minors presented as adults), to consenting sex workers.
Aside from the empirical point, conservatives do not generally recognize the legitimacy of restricting the liberties of adults because of potential effects on children. Republicans such as Bottoms don’t usually go around saying things like, “Sure we should limit adults’ ability to buy guns because that might protect children.” Instead, Republicans tend to say things like, “What part of ‘shall not be infringed’ do you not understand!?”
As for Cooke, he conceded to Peif (Peif’s words) that “a lot of time and police resources were put into investigations of commercial sex operations where it simply didn’t seem necessary.” Cooke said, “I kind of go both ways on some of it. After they [two prostitutes] got arrested, I was like how much are we going to spend? All these resources? For that? I mean you can’t legislate morality. But then on the other hand, are the women trapped in this and can they get out?”
Bill Masters weighs in
Bill Masters, recently retired sheriff of San Miguel County, the longest-serving sheriff in Colorado history, and a one-time Libertarian, also shared mixed feelings, although he came down on the side of decriminalization.
Masters told me: “This issue is certainly an uncomfortable one I am certain the legislature and other public officials would wish would just go away. But it never has and never will.
“Passing laws that prohibit private conduct between two consenting adults is a fool’s game and a waste of taxpayer money.
“Legalization may solve some of the blatant display and community discontent over street walking by allowing individual workers to arrange for exchange of money and services online rather than on the street.
“There is no easy solution to this issue that will make everyone happier and safer. However, being a libertarian at heart, I would support the legalization as an experiment to other states and see how it works out.”
The moral case
Okay, but is prostitution morally wrong?
Generally, we do not outlaw something just because it is morally wrong. Lying to your mother is morally wrong, but it doesn’t carry criminal penalties unless it involves fraud. So maybe prostitution, although morally wrong, should be legal.
Interestingly, Michael Huemer of the University of Colorado, among the world’s leading libertarian philosophers, argued recently that prostitution is morally okay.
He writes: “Some people think prostitution is wrong. I don’t get it. It seems like the simplest solution to a serious, widespread problem. Like other market transactions, we should presume that it leaves both parties’ desires better satisfied (in the absence of fraud), since otherwise they would not accept the transaction. Some would say that prostitution is exploitative . . . [but it’s] obtaining a benefit from someone by giving them something they want in return, and being completely up front about what you’re offering.”
For most of us, though, prostitution fails the test, “Would you want your daughter to grow up to do this?” There’s something unsettling, at least, about prostitution at least in many contexts.
On the other hand, after I saw the 2012 film “The Sessions,” about a quadriplegic man who hired a woman to have sex with him, I could not come up with a reasonable argument against sex work in that context.
In general, I think people do much better to keep sex within an intimate, caring relationship. We humans are evolutionarily built for sex to play a strong role in pair bonding, which obviously is useful for successfully raising labor-intensive offspring. So I think for most people prostitution is the wrong way to go. Cheating on your spouse with a prostitute certainly is wrong. But I do believe that consenting adults have the right to control their own bodies and to engage in “capitalist acts“!
In many ways Colorado always has been on the libertarian frontier, with our Western “live and let live” attitudes (with many exceptions, of course). It’s time to seriously consider the decriminalization of sex work, even if localities retain more leeway than what Senate Bill 97 envisions.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
