Brian D. Earp University of Oxford

Introduction

Is prostitution harmful? And if it is harmful, should it be illegal to buy (or sell) sexual services? And if so, should there ever be any exceptions? What about for people with certain disabilities--say--who might find it difficult or even impossible to find a sexual partner if they weren't allowed to exchange money for sex? Do people have a "right" to sexual fulfillment?

In a recent issue of the Journal of Medical Ethics, Frej Klem Thomsen[1] explores these and other controversial questions. His focus is on the issue of exceptions--specifically for those with certain disabilities. According to Thomsen, a person is "relevantly disabled" (for the sake of this discussion) if and only if:

(1) she has sexual needs, and desires to exercise her sexuality, and

(2) she has an anomalous physical or mental condition that, given her social circumstances, sufficiently limits her possibilities of exercising her sexuality, including fulfilling her sexual needs. (p. 455)

There is a lot to say here. First, in order to figure out the merits of making an exception to a general ban on prostitution (for people with disabilities or for anyone else), we have to start by deciding what to think about the advisability of such a ban in the first place. For, if we don't think that it's a good idea to begin with, then we can skip all the talk about making exemptions, and just argue against the overall ban. But Thomsen doesn't pursue that route. Instead, he wants to make a case for an exception. So, he has to try to convince his reader that a general prohibition makes at least some kind of moral and/or practical sense. How does he go about making this argument?

A case for prohibition?

Thomsen spells it out like this:

(1) Prostitution is bad because it causes harm to prostitutes.

(2) We have reason to avoid harm to persons.

(3) Prohibiting prostitution will reduce harm to prostitutes.

(4) Therefore, we have reason to prohibit prostitution. (p. 453)

Is this a good argument in favor of prohibition?

The harm of prostitution

We can start with the first claim: that prostitution is bad because it causes harm to prostitutes. Is that a convincing claim?

It does have a certain intuitive appeal, and most people would probably say "yes." But in another recent essay (also published in the JME), the philosopher Ole Martin Moen has put forward a powerful set of arguments that call into question conventional wisdom.[2]

According to Moen, while it is true that prostitution is not a harmless line of work:

(1) it is no more inherently harmful (on balance) than a long list of other occupations which we do not see fit to ban, but instead choose to regulate; and

(2) most of the harm that does go along with prostitution is actually a consequence of its being illegal (and otherwise socially stigmatized)-- i.e., contingent, external factors that have little to do with prostitution per se.

Let us take a closer look at Moen's argument. To do this, we can start by considering one specific type of harm as an example: the apparently higher rates of physical and mental health problems among sex workers compared to members of the general population. As Moen argues, this purported harm of prostitution might be due--at least in part--to the legal prohibition against the activity, which prevents sex workers from taking certain actions that would predictably improve their lot. For example: "joining labour unions, organizing their work in brothels, renting a place where they can work, hiring security agencies, advertising and forming work contracts (regarding salary, working hours, working conditions, health insurance, retirement savings, and so on)" ([2], p. 3).

In fact, Moen does a good job of addressing most of the arguments that claim to show that prostitution is inherently harmful (including in ways that are not just physical, but also more abstract, symbolic, or moral), by performing a similar analysis for each one. Readers who are skeptical, of course, can read Moen's paper themselves, and reach their own conclusions.

Thomsen's critique

Thomsen actually considers Moen's argument. Only he doesn't find it entirely convincing. Among other issues, his main objection that even if "extrinsic" factors like social stigma and legal prohibition were responsible for some of the harms associated with prostitution, they wouldn't necessarily account for all of the harms associated with prostitution. (As far as I can tell, Moen doesn't dispute this claim, but let us set that aside for now.)

To support his position, Thomsen cites an empirical study by a researcher named Vanwesenbeeck.[3] According to Thomsen, this study showed that "roughly half--but no more than half--[of] the variance in [certain negative emotional outcomes] experienced by indoor prostitutes in the Netherlands was explained by external factors including stigma, lack of control and poor working conditions" ([1], p. 453, emphasis added).

The implication, then, is that the other half of these negative outcomes (for example, emotional exhaustion) must be due to something intrinsic to prostitution.

Intrinsic vs. extrinsic

There are a few ways to respond to this line of thought. First, there is the problem of non-random sampling: some people turn to prostitution because of pre-existing issues with addiction or mental health, and so the arrow of causation is not entirely clear. Second, it seems unlikely that the study by Vanwesenbeeck measured every possible "external factor" that could be responsible for the various harms of prostitution, which introduces a further limitation to what we can infer from these results. But even if it did--so, even if we were justified in saying that "roughly half" of the variance in (say) emotional exhaustion experienced by this particular sample of Dutch prostitutes was due to something intrinsic about their selling sex--we would still have to put this information in context.

What sort of context do I mean? Well, consider the fact that many careers contribute to, e.g., emotional exhaustion (and other negative emotional outcomes): just think of the burn-out that grief and trauma counselors experience, for example, which is probably due to factors that are (at least in large part) intrinsic to that particular line of work. Or think of the various harms that are "built in" to any number of jobs, like the dangers of construction work, or professional boxing; or the job- insecurity of being an actor (unemployed after every show); or the "degrading" nature of, say, collecting people's garbage or cleaning out their toilets.

When it comes to these careers, however, no one thinks we should prohibit people from choosing to pursue them, just on account of the fact that they carry some degree of risk, or are stigmatized, or are otherwise less than ideal. Instead, we try to think of ways of reducing the various risks that are involved, and/or we compensate people--usually monetarily-- for the harms and difficulties that do in fact come along with their choice of employment.

None of this is to suggest that the intrinsic harms of prostitution are identical to those in the other lines of work just mentioned. They may very well be much more problematic. The point is only that the mere fact that some occupation has intrinsic harms, whatever those turn out to be, is not sufficient to show (without further argument) that it should therefore be prohibited.

The importance of choice

Note the importance of choice here. My position has to do with people --men, women, intersex, and transgender people--who freely choose to sell sexual services in exchange for money. If someone is forced to sell sexual services, that is sexual slavery, not prostitution, and that is a different matter entirely.[4]

Now, someone might argue that prostitution is so inherently harmful or degrading, that someone would only "choose" to exchange sex for money if in reality they were forced by their circumstances (i.e., extreme poverty).[4] A similar argument has been made about the prospect of establishing a market for selling kidneys: only people who are pressured (by their circumstances) to sell their kidneys would end up doing so--the argument runs--so this kind of vending is not really a free "choice."

This takes us to yet another recent JME article, by Luke Semrau, entitled, "The Best Argument Against Kidney Sales Fails."[5] Semrau points out that there are two types of pressure to tease apart here: a specific pressure to sell one's kidney (or to engage in prostitution), which would in fact be directly coercive--and which could conceivably be relieved by prohibiting the activity in question--and a more general kind of pressure (i.e., economic insecurity), which, by contrast, could actually be relieved by any number of activities, including not only selling one's kidney or engaging in prostitution, but also other types of employment.

In this latter case, however, prohibiting the activities in question does not actually relieve the more general pressure. Instead, it may actually compound it--because it would take away otherwise viable employment options. So, if someone has another way of relieving their poverty apart from kidney-vending or prostitution (or collecting garbage, or cleaning toilets, or filling out spreadsheets, or flipping burgers)-- but regards one of those options as being preferable to the alternatives-- then it's hard to see how we could say that they had been specifically pressured into choosing that career.

Harm and prohibition

All of which is to say the following. Even we if were to grant the first point from Thomsen's argument--the one that says that prostitution causes at least some intrinsic harm to prostitutes--this wouldn't necessarily mean that we should favor a ban on prostitution. For one thing, if Moen is right, a ban might actually increase the level of harm to prostitutes, compared against the alternative policy of not having a ban, and setting up reasonable health and safety regulations, encouraging de-stigmatization, etc. And for another thing, as Thomsen himself points out, even if a ban did not have this harmful effect, we might still have other reasons to argue against it.

For example, we might endorse what Thomsen calls the "antipaternalist challenge." This view holds that "prohibition constitutes an unjustifiable interference in the freedom of consenting adults" ([1], p. 454). Peter de Marneffe[6] puts the view like this:

"Discretionary control over one's own sexual activity [is] central to sexual autonomy, [to] control over one's body, and so to personal autonomy. ... It is important that adults have the discretion to make personal choices about the kind of sex they engage in with other adults, even if these choices are unwise. So it is objectionable for the government to prohibit a person for using her own body and sexuality for prostitution." (quoted in [1], p. 454).

As it happens, I tend to agree with this kind of analysis.[7, 8, 9, 10] Just think: adults are allowed to have sex with someone they might find otherwise unappealing in exchange for almost anything they desire except cash: promises of emotional support, the prospect of economic security, or maybe just a few drinks at the bar. This doesn't mean that those are good reasons to engage in sexual intercourse--but it's up to each of us how we negotiate our needs and desires.

More generally, however, when it comes to prohibition, one has to remember that it is no small step from (on the one hand) getting one's ethical analysis in order--in terms of establishing if a given practice is in fact harmful, and in what particular way--to (on the other hand) determining what kinds of social and legal changes would best reduce the harm in question, with the least amount of collateral damage.[11]

To put it simply, prohibition is often a bad idea, even if the targeted activity is harmful.[12]

Back to Thomsen

Thomsen actually appears to agree with this. So, after taking several pages to try to convince us that prostitution can plausibly be regarded as bad (because it is at least somewhat intrinsically harmful), and that the best arguments to the contrary are not as strong as they may seem--he nevertheless concludes that the "case for [actual] prohibition is murkier and weaker than its proponents sometimes suggest" ([1], p. 455). A mere three sentences later, however, Thomsen shifts gears rather awkwardly and asks us to go ahead and just "assume for the sake of argument that the balance of reasons favours a general prohibition of prostitution" (ibid)!

Presumably, this is so that Thomsen can set up his case for the advisability of an exception to an overall ban. He points to two facts that lay the groundwork for his position:

(1) Many or most persons have a sexuality that generates strong needs for sexual relations, and

(2) Some disabled persons are partially or entirely incapable of satisfying this need except through the purchase of sexual services from a prostitute. ([1], p. 455)

Buying sex--for people with disabilities only?

Let me give you an example of what he means. Quoting from another source,[13] he cites the case of a man who "couldn't walk and his carer would bring him. You had to lift him out of the wheelchair and into the Jacuzzi and he was stiff because he didn't move his arms or legs. He couldn't move, could get an erection but that was about it" ([1], p. 455).

Evidently, in exchange for money, someone was willing to have sex with this man under the stated conditions, and this was helpful for resolving his "needs for sexual relations." (Note that Ezio Di Nucci has suggested a very interesting alternative: namely, establishing non-profit charities whose members would voluntarily provide sexual pleasure to the severely disabled.[14] For a related story, see the fascinating autobiographical account, "Head Nurses" by William Peace in Atrium magazine.)[15]

What should we say about a case like this? The first thing to point out is that the man's disability didn't make it so that he physically couldn't have sex (if that were the case, hiring a prostitute would not help his situation); instead, the issue was more that he couldn't find a willing sexual partner ... for whatever reason.

Now, it seems reasonable to conclude that--in this particular instance--the "reason" had something to do with his physical disability. In other words, it seems likely that (all else being equal) relatively few people would desire, as their first choice, to form a sexual relationship with someone who could not "move his arms or legs" (although I imagine that there are many exceptions). This is for the simple reason that some, presumably enjoyable, sexual experiences are only possible if it is the case that one's partner can make use of his external limbs without assistance.

But that is a very specific issue--and it glosses over a more general point. And that is that all sorts of people find it difficult to find a willing sexual partner--or enough willing sexual partners--to "satisfy" their sexual needs, for a whole range of reasons that have nothing to do with physical (or mental) disability of the "obvious" kind exemplified by this man. They may simply be perceived as unattractive. Or they may be shy. Alternatively, they may be very attractive--and not at all shy--and just have an insatiable sexual appetite. Are all of these people "disabled" on Thomsen's account?

Defining disability

It's hard to tell. On the one hand, Thomsen could define "disability" in a very narrow sense that captures only the "obvious" cases that everyone would recognize--perhaps typified by the man in the example. But this would result in an extremely unreliable, and indeed almost absurdly arbitrary proxy for the "real" underlying issue at stake, which is the difficulty that some people have in finding a willing sexual partner(s) sufficient to meet their sexual needs without having recourse to prostitutes.

After all, innumerable people with physical and/or mental disabilities have extremely satisfying sexual relationships, so the connection between "having a disability" (of some kind) and "being perceived as sexually unappealing" is so tangential as to be almost offensive. On the other hand, Thomsen has the option of defining "disability" in a very broad sense--which is what he does in fact choose to do--which carries its own set of problems. For one thing, it refers to an extremely vague and amorphous group of people who (to quote from Thomsen's definition) have "an anomalous physical or mental condition that, given [their] social circumstances, sufficiently limits [their] possibilities of exercising [their] sexuality, including fulfilling [their] sexual needs" ([1], p. 455).

But that could include just about anyone! For one thing, there is the nearly boundless room for interpretation surrounding most of the key terms in Thomsen's definition: "anomalous," "physical," "mental," "condition," "sufficiently," and "fulfill." For example, what is "anomalous" - ? Statistically rare? How rare? As measured along what dimension? Also, why should the condition have to be "anomalous" in any event? Isn't it the (lack of) functional outcome that is the morally relevant concern here?

Or think about the word "condition" - meaning what? Is shyness (to repeat that example) a "mental condition" that counts as a disability? And what about "sufficiently"? How shall we determine the cut-off? In other words, just how "hard" does it have to be to find a willing sexual partner before one is allowed to register oneself as "sexually disabled," say, and pick up her "prostitution exemption" card? And finally--"fulfill." Wouldn't, say, most married couples report that their sexual needs were not "fulfilled" in some relevant way? Indeed, one survey puts the figure at 57%.[16]

Conclusion

So this doesn't seem to be the way to go. Either the definition of disability is so narrow as to be unjustifiably arbitrary as a proxy for the real underlying moral issue, or it's so broad as to include almost anyone. Why not--instead--just argue against a general prohibition, and let mature individuals decide for themselves (a) what kind of consensual sex they wish to engage in, and (b) in exchange for what.

Acknowledgments

Thanks to Julian Savulescu, John Danaher, Michael Hauskeller, Daniel Goldberg, and Ole Martin Moen for feedback on these ideas. This paper is adapted from a blog post with the same title originally published at the Journal of Medical Ethics Blog, available here: http://blogs.bmj.com/medical-ethics/2015/06/17/prostitution-harm-and- disability/. Although most of the text is identical to that in the blog post, I have made some minor improvements to the text in terms of both style and content. Please note that Dr. Moen and I are preparing a formal academic paper expanding on the ideas presented in this e-letter, and that some passages are expected to overlap substantially.

References

[1] Thomsen, F. K. (2015). Prostitution, disability and prohibition. Journal of Medical Ethics, 41(6), 451-459.

[2] Moen, O. M. (2014). Is prostitution harmful? Journal of Medical Ethics, 40(2), 73-81.

[3] Vanwesenbeeck, I. (2005). Burnout among female indoor sex workers. Archives of Sexual Behavior, 34(6), 627-639.

[4] Weinberg, J., de Marneffe, P., Demetriou, D., Earp, B. D., Fuller, L., Gauthier, J., Hay, C., Marino, P., Pettit, P., & Whisnant, R. (2015). Philosophers on prostitution's decriminalization. Daily Nous. Available at http://dailynous.com/2015/08/13/philosophers-on-prostitutions -decriminalization/.

[5] Semrau, L. (2015). The best argument against kidney sales fails. Journal of Medical Ethics, 41(6), 443-446.

[6] de Marneffe, P. (2009). Liberalism and prostitution. Oxford University Press.

[7] Vierra, A., & Earp, B. D. (2015). Born this way? How high- tech conversion therapy could undermine gay rights. The Conversation. Available at https://www.academia.edu/12055156/Born_this_way_How_high- tech_conversion_therapy_could_undermine_gay_rights.

[8] Earp, B. D. (in press). Female genital mutilation and male circumcision: Toward an autonomy-based ethical framework. Medicolegal and Bioethics, in press. Available at https://www.academia.edu/10270196/Female_genital_mutilation_and_male_circumcision_Toward_an_autonomy -based_ethical_framework.

[9] Earp, B. D., Sandberg, A., & Savulescu, J. (2014). Brave new love: The threat of high-tech "conversion" therapy and the bio-oppression of sexual minorities. AJOB Neuroscience, 5(1), 4-12.

[10] Maslen, H., Earp, B. D., Cohen Kadosh, R., & Savulescu, J. (2014). Brain stimulation for treatment and enhancement in children: An ethical analysis. Frontiers in Human Neuroscience, 8(953), 1-5.

[11] Earp, B. D. (2014). Things I have learned (so far) about how to do practical ethics. Practical Ethics. University of Oxford. Available at http://blog.practicalethics.ox.ac.uk/2014/03/things-ive-learned-so-far- about-how-to-do-practical-ethics/.

[12] Earp, B. D. (2013). The ethics of infant male circumcision. Journal of Medical Ethics, 39(7), 418-420.

[13] Sanders, T. (2007). The politics of sexual citizenship: commercial sex and disability. Disability & Society, 22(5), 439-455.

[14] Di Nucci, E. (2011). Sexual rights and disability. Journal of Medical Ethics, 37(3), 158-161.

[15] Peace, W. (2014). Head nurses. Atrium, Winter, 12, 20-22.

[16] National Survey of Marital Strengths. Available at https://www.prepare- enrich.com/pe_main_site_content/pdf/research/national_survey.pdf.

Conflict of Interest:

None declared