Aquinas cogently argued that the law should only be concerned about vices harmful to others...
In a previous article, I discussed a common argument advanced by radical feminists against legalising prostitution. It is that prostitution is degrading to women and therefore not a victimless crime. My response was that prostitution might be degrading, but not only to the women who sell sexual services, but also to others: to the men who also sell such services, and to the many men (and very few) women who buy them. It is degrading because it reveals human imperfections and deficiencies, the sad inability of some individuals to fulfil all their sexual needs in a normal non-pecuniary relationship with another person. I also argued that even if prostitution could be recognised as a vice, it should not be made a crime, because, as the eminent authorities St. Augustine and St. Thomas Aquinas both accept, the consequences of prohibiting it are probably much worse than the consequences of tolerating it. The sex drive is strong in most people, the result of natural selection over millions of years. ‘Remove prostitutes from human affairs, and you will convulse the world with lust,’ St. Augustine exclaims. In the same spirit Bernard de Mandeville asks in his notorious Fables (I, p. 96): ‘Where six or seven Thousand Sailors arrive at once, as it often happens at Amsterdam, that have seen none but their own Sex for many Months together, how is it to be suppos’d that honest Women should walk the Streets unmolested, if there were no Harlots to be had at reasonable Prices?’
Here I would like to analyse another common argument by radical feminists for outlawing prostitution. It is that prostitution always involves the exploitation of women. It is not a profession which women enter willingly, radical feminists assert. In the past women were forced into prostitution by poverty, unemployment or lack of education, as George Bernard Shaw describes in his play on the matter, Mrs. Warren’s Profession. On the job, they were and undoubtedly often still are maltreated by their male managers, the pimps (or sometimes by female managers, the madams) and harassed by the often corrupt vice squads of the police. The choices made by prostitutes are therefore mainly illusory, it is said. Moreover, nowadays there is a strong link between prostitution and human trafficking, radical feminists observe. There is an asymmetry of power between the (mostly) female prostitutes and their (mostly) male customers.
The problem with this argument is that it does not really support prohibiting prostitution by law. If in the past women were forced into prostitution by poverty, unemployment, or lack of education, which surely must often have been the case, the response should have been to try and reduce such social evils, not to remove perhaps the only available opportunity then for women to escape or at least mitigate them. In today’s affluent Western societies, those social evils have largely disappeared. Most women have many opportunities from which to choose. Imagine however for a moment a girl whose only asset is that she is physically attractive. Should she not be able to earn some income from this asset by selling sexual services to men? Why should she be deprived of her only opportunity to escape drudgery?
The argument from exploitation not only fails to support the legal prohibition of prostitution, but is in fact an argument for legalising it. Nobody would deny that many prostitutes are exploited by their pimps or madams and that human trafficking for sex takes place, mostly from poor countries to the affluent countries of the West (not to forget sex tourism in the opposite direction). But if prostitution is legal instead of being forced underground, police could closely monitor brothels and streetwalkers and extend to women working in this sector the protection of the law against fraud and coercion. It would be much easier than it is now in many countries to prevent the abuse of children. The prostitutes could be obliged to undergo regular medical examinations in order to contain the transmission of venereal diseases. They would have to pay taxes on their income. Human trafficking would become much more difficult, and pimps and madams would have much less power over the prostitutes.
While all this is true, the internet is rendering the whole discussion about exploitation of prostitutes almost pointless. It has had a great impact that the internet is able to connect a buyer and a seller swiftly and directly. Some grocery stores are going out of business because people buy their necessities online and have them delivered to their homes. Regular travel agencies have largely disappeared because people search and pay for airfares and accommodation online, directly from airlines and hotels. The share economy enables enterprising individuals to put their partly-idle assets such as houses or cars to better use by running their own little hotel or taxi services, connecting directly with their customers through facilitators such as Airbnb and Uber.
This revolution in communication has also reached the sex industry, both pornography and prostitution, and it has indeed to some extent integrated these two activities. Now individual women (and men) can offer some sexual services online through agencies such as Onlyfans and Chaturbate: they open an account, put a camera into a room, connect it with the internet and wait for customers. The potential buyers can become either regular subscribers or occasional visitors, asking and paying for individual shows directly, and according to particular tastes and preferences. Essentially, the sellers on this market are producing pornography privately, whilst there seems to be little difference between their exchanges with their customers and at least some forms of prostitution. Those customers who however want real-life, physical contact can easily find online individuals willing to meet them in relatively safe locations and ready to provide what they want at freely negotiated prices.
The internet has thus removed or at least greatly reduced the possible exploitation of sex workers by rogue intermediaries, whether they are producers of pornography, human traffickers, pimps or madams. Sex workers are now able to connect directly to their customers, having only to pay moderate fees to largely anonymous agencies which are not in any way trying to coerce them. If these workers are only providing diversion online, those of them living in poor countries need not move to the West although that is where the most lucrative market for sex is. Of course some possibilities still remain for abuse and coercion, both of children and women, online and offline, but it is much less than what it would be if prostitution and pornography were underground activities, without any protection by the law.
The conclusion need not be that society should accept or endorse pornography and prostitution, only that it should tolerate these activities and try to limit their possible bad effects on others, for example the online access of children to pornography. At Heathrow Airport, duty free shops selling tobacco are separated from the corridors by a bare wall, with no advertising, and no possibility to just peek in. Perhaps this is how pornography and prostitution should be treated: Parents walking around with children in hand should not have to be exposed to pornography in window displays or to run into insolent prostitutes on street corners. The use of tobacco is tolerated, but society registers its disapproval of it, and the same may be appropriate in the case of pornography and prostitution, although admittedly these activities do not pose the same health risk as tobacco while they also fulfil a real human need.
The three pillars of civil society are family, property, and traditional morality, and the state should try to strengthen them, as many conservative-liberal thinkers have argued. I do not subscribe to the dictum that anything goes. However, since government has scarce resources at its disposal the police force is more productively employed in reducing actual dangers to ordinary citizens and in keeping public order than in harassing sex workers who are only doing harm to themselves. Aquinas wisely observes in the Second Part of the First Part of Summa Theologiae (Question 96, Article 2): ‘Now human law is made for the multitude of men, and the greater part of this multitude consists of men who are not perfected in virtue. And so not all the vices from which virtuous men abstain are prohibited by human law. Instead, the only vices prohibited are the more serious ones, which it is possible for the greater part of the multitude to abstain from—especially those vices which are harmful to others and without the prohibition of which human society could not be conserved. For instance, homicide and theft and other vices of this sort are prohibited by human law.’