In part one, I discussed the first part of Nussbaum’s article “‘Whether from Reason or Prejudice’: Taking Money for Bodily Services” which brought up the six analogies that Nussbaum uses to argue for the decriminalization of prostitution.  In this post, I will be going through Nussbaum’s analysis on why prostitution became stigmatized and I’ll go over a few of the arguments as to why prostitution should be criminalized and Nussbaum’s responses to those arguments.

In all of these cases, the major difference is because prostitution is widely stigmatized.  Professors, opera singers and masseuses used to be, but they’ve gained respectability.  So why is prostitution still stigmatized?

Nussbaum thinks there are two reasons:

Immoral reason: this states that prostitution is immoral itself, mainly because nonreproductive sex was immoral.  However, Nussbaum finds this a weak reason because this is an inconsistent view because many people find nonreproductive sex morally permissible.  Indeed, many people find nonmarital sex morally permissible.  Thus, there is not much need to argue against this view.

Whether or not people find premarital sex or even casual sex morally permissible, there is still a stronger stigma toward prostitution.  To simply shrug it off doesn’t seem to give this argument any closure.  After all, is there a possibility that one could argue that premarital sex and casual, promiscuous sex are morally permissible, but prostitution is not?  I think it would be difficult to make an argument, although it may be possible.  What could a possible argument be?  Suppose there was a one-night stand where the people involved consent to the sexual activity.  So far, no problem.  Now imagine the same thing except that the deal is that one expects to be paid for the activity and the other agrees.  All of the sudden, it becomes morally suspect.  But why?  I don’t see any other way out except some prejudicial basis.  However, perhaps one could make an anti-capitalist argument that this business deal seems to take lightly of the sexual encounter.  However, one could make the same argument with the one-night stand.  I, at this time, cannot think of a way to show why one-night stands and promiscuity are permissible and prostitution is not, but this is not to say that it can be done.  I think Nussbaum needs to counter this argument in a stronger way rather than shrugging it off.

Gender hierarchy reason: this is the idea that women and their sexuality are in need of male domination and control.  What is this connection?  Here, Nussbaum seems to give a brief genealogical account of prostitution and the prejudice against it.  If a women is sexual, there is something dangerous about it.  Thus, it needs to be controlled.  Moreover, the prostitute, who is a sexually active woman, is a threat to male control of women.  By making the prostitute away from the marker of a “good woman,” the wife is aimed toward reproduction which is proper sex.  This system maintains male control over female desire.  This sexual hierarchy causes the stigma.  We can see this sexual hierarchy with veiling and female genital mutilation, for example.  Part of the sexual hierarchy suggests that women’s sexuality is dangerous and immoral and that it needs to be controlled by men.  Because the prostitute is in control of her sexuality, she is seen as a threat of this control.  And because this stigma is based on a prejudice, the reasons for the immorality of prostitution are unfounded.

I’m not sure what to think of this argument.  Yes, there was, and is, a sexual hierarchy.  Suppose, however, that this was all gone and prostitution still existed.  Would the immorality of prostitution disappear with it?  I doubt it.  Even those who are sympathetic to Nussbaum’s claims of getting rid of sexual hierarchy, I could imagine someone still being against prostitution for other reasons.  Suppose we have Rachel.  She is someone who supports women’s freedom of her own sexuality.  Rachel believes that women can express their sexuality in their own way under their own terms.  Yet, Rachel thinks that sex for money as a way to demean not the sex, but women in general.  In what way?  Rachel argues that getting sex for free is seen in a better light rather than getting paid to have sex because sex for pay undermines the relationship.  As an analogy, suppose you ask me to help you on your homework and I do so.  Now, suppose you ask me to help you with your homework and I say yes but only if I get paid.  By doing that, it seems to undermine the relationship that we have.  Rachel’s argument has a good point.  However, this presupposes that we’ve already had a relationship.  I have tutored many people in the past, and they pay me to tutor them, and yet neither of us think that this somehow demeans me.  It only demeans me (and the other student) if we’ve already had some sort of relationship, even a friendly one.  To ask friends or lovers for money for some sort of service undermines that relationship.  Rachel’s argument is flawed, but it does get to the heart of Nussbaum’s argument.  The problem with this argument is that prostitution may have started with sexual hierarchy, but even if there was this genealogical account of it, arguments against prostitution does not need to rest on this.  Fortunately, Nussbaum looks at other arguments for criminalization of prostitution and responds to them.

This does not mean that the stigma entails criminalization however.  Just because the occupation has a stigma does not mean that the occupation needs to be criminalized.  There are a low castes in India known as the “untouchables” who works in very menial jobs, and they are stigmatized.  However, the jobs they do are not immoral (it’s usually toilet jobs).  If anything, it’s the structural prevailing attitudes toward the untouchables that makes the occupation a stigma thereby making the people themselves having a stigma.

The next step is to look at certain arguments for the criminalization of prostitution, analyze them, and see if they’re effective arguments.  Nussbaum looks at seven arguments and debunks them all.

Argument one: Prostitution involves health risks and risks of violence.

The argument is straightforward:

1. Any occupation that involves health risks and risks of violence gives us clues that the occupation ought to banned.
2. Prostitution is an occupation that involves health risks and risks of violence.
3. Therefore, the occupation of prostitution gives us clues that the occupation ought to be banned.

Nussbaum argues against premise one.  If prostitution was made illegal, the problem is acerbated where the prostitute cannot gain adequate supervision nor adequate health care.  In any form of violence, it is better to have a sense of control and regulation and have the police on your side rather than having them as your oppressor.  Nussbaum uses boxing as an analogy, although with today’s standards, she could have easily used UFC fighting.  In these cases, the fighters are subjecting their body to harm.  Moreover, there is a stronger case for paternalistic regulation of fighting rather than prostitution because fighting involves more bodily harm and it glorifies in this harm, especially to younger people.  Yet, Nussbaum does not want to criminalize fighting: “[s]ensible regulation of both prostitution and boxing…seems reasonable and compatible with personal liberty.”  Making it illegal would make it worse.  Thus, Nussbaum’s counterargument is:

1`.  Any occupation that involves health risks and risks of violence gives us clues that the occupation ought to regulated, (such as boxing or UFC fighting).
2.  Prostitution is an occupation that involves health risks and risks of violence.
3`.  Therefore, the occupation of prostitution gives us clues that the occupation ought to be regulated.

Nussbaum’s counterargument makes sense to me.  As a way to further her argument, any occupation that we deem having health risks (such as jumping over buses with a motorcycle, firefighting, policing criminals, etc.) are not banned because of the health risks themselves.  People understand the health risks and yet, they still choose that occupation or lifestyle.  Banning the activity or occupation would not make the desire for that activity go away.  In some of these cases, we need people to do these occupations for a better society.

Furthermore, just because an activity has high health risks does not make the activity immoral.  At best, it may make the the activity imprudent.  Riding my bike without the rubber tires does carry health risks, and it’s imprudent for me to just ride on the rims, but I wouldn’t call that immoral.  The person who makes the argument is conflating immorality with imprudence.

Argument two: The prostitute has no autonomy; her activities are controlled by others.

The argument can be formed as this:

1.  Any occupation where autonomy is taken away is morally wrong since one’s actions are controlled by others.
2. Prostitution is an occupation where autonomy is taken away since her actions are controlled by others.
3.  Therefore, prostitution is morally wrong.

By using the previous analogies, Nussbaum points out that prostitution is not different than the factory worker or the domestic servant.  Indeed, they have much less autonomy than the prostitute.  And yet, these jobs are morally permissible.  Indeed, many working-class women don’t have much autonomy.  However, this does not mean that since we allow jobs A, we should therefore allow job B.  Nussbaum is concerned for the working conditions of the factory worker and the domestic servant.  What makes the jobs morally troubling is the fact that one’s livelihood is lacking a life of flourishing because the work is out of one’s control.  This, however, does not mean that the occupation is immoral; it just means that this is a problem of labor.  To fix the problem, we must promote more control over choices of activities and more variety.  It certainly wouldn’t make sense to criminalize factory jobs or domestic servitude.  Thus, Nussbaum’s counterargument is this:

1`.  If there is any occupation where autonomy is taken away, then there needs to be a structural change where one has more control over choices of activities and variety, since one’s actions are controlled by others.
2.  Prostitution is an occupation where autonomy is taken away since her actions are controlled by others.
3`.  Therefore, prostitution needs to be a structural change where one has more control over choices of activities and variety, since one’s actions are controlled by others.

This is an interesting move from Nussbaum where we don’t get rid of the activity, but to give the other autonomy.  Yet, how far are we willing to go with this?  Slavery is an occupation where one’s autonomy is taken away because one’s actions are controlled by others.  Yet, we wouldn’t say that we just need to give the slave more autonomy by having more control of activities and more variety.  Something seems incomplete in this argument.  Still, I think this is a good starting point.  Nussbaum’s counterargument needs to be developed where she needs to show how slavery is wrong but prostitution is morally permissible.  After all, they both lose autonomy.  I think the way around it is to suggest that the prostitute has a contract with the client (the same can be said with almost any working-class women).  The slave, however, has no contract because the slave was forced into this occupation.  However, what if someone chooses to be a slave?  As weird as it sounds, would we then give Nussbaum’s recommendations and say that one can be a slave but we’ll give her a free range of activities she can have?  Nussbaum’s counterargument has some merits, but it needs some development.

Argument three: Prostitution involves the invasion of one’s intimate bodily space.

Nussbaum responds by reviewing the colonoscopy artist from part one.  Both may not be to everyone’s taste, but that reason itself does not mean that prostitution—as well as colonoscopy artistry—is morally wrong.  Furthermore, just because both will not be to everyone’s taste, it doesn’t mean that the activity is wrong.  Many forms of sex don’t involve love or marriage.  If we go down this route, to be consistent, we must also find sex without love or marriage morally problematic.

Here, I think Nussbaum is onto something which she doesn’t realize.  If she’s relying on taste, then the person who makes argument three isn’t really making a moral claim but an aesthetic one.  Within the legal realm, we cannot legislate taste.

Perhaps a potential problem with this argument is her call for consistency: if we find prostitution wrong because of certain tastes, then we must also repudiate sex without love or marriage wrong as well.  But is this true?  Can we construct a moral position where prostitution is morally wrong yet noncommercial casual sex is morally permissible based on taste?  Even stranger, can we construct a moral position where prostitution is morally permissible, yet noncommercial casual sex is morally wrong based on taste?  I don’t have any answers to this, but I’m willing to bet that an argument could be made.  Still, if there is no argument, then one must concede that Nussbaum has a good point.

Argument four: Prostitution makes it harder for people to form relationships of intimacy and commitment.

Is this true?  It seems odd that we are treating preferences and desires as a zero-sum game.  One type of relationship does not remove another type.  For example, prostitution is legal in the Netherlands, Germany, and Sweden; yet the people in those countries still appear to fall in love.  Introducing Jackie Collins novels does not remove the desire to read Proust.  With any book, certain values are produced by reading them that you can’t get in another book.  By introducing new books, you actually add more availability and choices.  People who want Proust will read Proust and having Jackie Collins in the bookstore won’t remove that want.  The same is true with loving relationships.  Those who want love and commitment can get that, and they can tell the difference between that and other type of relationships.

But what if the argument means that prostitution makes it harder for the prostitute to form loving relationships?  Nussbaum argues that this is implausible.  Recalling how singers, dancers, and actors were stigmatized in Smith’s time.  I’m willing to bet that they still got involved in loving relationships.

I think this argument is trying to suggest that the prostitute is so used to having sex without intimacy that she will forever divorce sex and intimacy.  I’m not sure this is factually accurate, but at the same time, is it really a problem if someone believes that sex and intimacy are not necessarily connected?  Imagine someone living a life where sex is for enjoyment and pleasure and not for intimacy.  This may not be the norm, but I cannot find anything morally (or legally) problematic with that belief.  Nussbaum mentions this in the next argument, but she doesn’t offer a suggestion except that connecting sex and intimacy seems to be more about a personal predilection rather than an obvious fact.

In the next post, I’ll conclude the arguments and give some general comments on Nussbaum’s article.