The first argument for legalizing prostitution is simple: not liking something is not a sufficient reason to criminalize it. Whatever progress mankind has achieved over the past three centuries has come from extending this principle to behaviour previously thought to fall under the authorities’ purview. Most problems have been caused by retreats from this principle.
The prostitute’s body belongs to her, and to nobody else, so she is the one who should decide what to do with it. The claim that a prostitute does not make a free choice because her other alternatives are worse is not only coercively elitist, but implies that no choice can ever be free. Anybody would always choose better if better were available. A choice is always a way to get the maximum out of one’s situation, however satisfactory or unsatisfactory the alternatives are. A prostitute has it even rougher if her least bad alternative is criminalized.
Many prohibitionists will counter that prostitution is not a question of individual preferences and choice, but that it is immoral and should be banned as such. But who will decide which vices to criminalize? Or is it all vices? Who will define what a vice is? Since moralists do not agree, we are back to the idea that some will impose their own moral preferences on others. Wars of religion have been waged over similar disagreements.
For sure, some vices should be criminalized, like sadism with non-consenting partners, sexual pursuits realized in rape, or cupidity materializing in theft. But note that what is criminalized is the crime not the vice. As Lysander Spooner argued, “vices are not crimes.” Confusing the two genres is such an affront to reality that coercive preachers and moralists often end up being the most frustrated and worst sinners. There are rights and wrongs, but very good reasons have to be found to make the former compulsory and to ban the latter.
Except for the religious fundamentalists among them, prohibitionists have to fall back on “harms to society”. Prostitution is still a sin, but a social sin. God is dead, long live the state!
Now, contrary to what many people seem to believe, there is no easy way to determine what is harmful to society. In fact, the concept is close to nonsensical. What is bad “for society” depends on the opinions of the one who makes the judgement. We are back to the realm of personal preferences imposed by some people on others.
Harms, like benefits, always flow to specific individuals. The evidence reviewed in the recent ruling of the Ontario Superior Court, which correctly stroke down the ban on prostitution, confirmed that prostitutes are seriously harmed by criminalization. They cannot operate in relatively safe brothels and don’t benefit from the protection of the law like in the many countries (including the state of Nevada) where prostitution has been decriminalized.
Some individuals do benefit from a ban on prostitution. Think of the moralists, organized crime, some married women who couldn’t keep their men at home… But there is no scientific way to weigh the benefits accruing to some individuals against the costs borne by others. Weighting costs and benefits is ultimately a question of personal opinion, values, preferences.
On the other hand, it can be shown that banning non-violent acts is dangerous for social peace and social efficiency. We live in a diversified society, as must be any prosperous society with wide opportunities for diverse individuals. Such a society cannot survive if everybody can ban what he doesn’t like. The tyranny of the majority is not the solution either. Live and let live.
Moreover, banning an activity that will not go away (be it prostitution, alcohol or tobacco) requires police powers that threaten civil liberties. In this vein, a strange argument has been made for keeping prostitution illegal but tolerating it. This is a good recipe for arbitrary power: with so many prohibitions, obligations and regulations around, anybody whom the authorities don’t like can be prosecuted for something.
Children do raise a special problem, in this area as in others. Minors should be protected against the temptation of drifting into prostitution. But the problem is with children and their parents, not with prostitution as such (or alcohol, the Internet, or whatever). By the way, for those who think parents should indeed be the guardians of their children, crying for the state to repress prostitution is slightly ironic. For the state is the same organization which continuously interferes with parents’ education of their children; and it is the same organization which runs the schools which “educate” most children during most of their childhood.
So let’s stop idealizing the fox, armed with the Criminal Code, in the henhouse.