Battle of the Feminist Law Profs

In her comment to my post on Spitzer’s apology, LB mentions Catherine MacKinnon’s position on prostitution and the law, which, according to this article in Slate by Emily Bazelon, is that selling should be legal, but buying illegal.

As opposed to Martha Nussbaum, who, according to Bazelon, says that legalizing prostitution “is likely to make things a little better for women who have too few options to begin with.”

But wait . . . here’s more from Nussbaum (or at least a summary of her views), from a nifty little article, Feminist Perspectives on Sex Markets, from the on-line Stanford Encyclopedia of Philosophy (what will they think of next?)

Martha Nussbaum questions whether the sale of sexual services genuinely damages the persons who provide them or women as a whole. Nussbaum points out that, two centuries ago, the use of one’s artistic talents for pay, such as singing or acting, was regarded as a form of prostitution (Nussbaum 1999, 277). Nussbaum acknowledges that sex workers are currently stigmatized for their profession, but questions whether the stigma that attaches to their work is justified. By tracing this stigma both to aristocratic prejudice toward waged laborers and to moralistic attitudes and anxieties regarding female sexual expression, Nussbaum challenges the rational basis of the stigma (Nussbaum 1999, 278-79, 286-88). She concludes that feminists should oppose the stigmatization of sex work rather than oppose sex work for its contribution to the stigmatization of women. Nussbaum also questions seven common claims against prostitution: it involves excessive risks, the prostitute has little autonomy, it violates the prostitute’s bodily integrity, prostitution has a destructive effect on non-commercial intimate relationships, prostitution violates a person’s inalienable right to her sexuality, it contributes to a male-dominated social order, and it relies on the economic coercion of workers. Nussbaum argues that the problems associated with prostitution are components of many other kinds of work and social practices, such as marriage, and that these problems are not inherent to the work but are often a function of the prostitute’s working conditions and treatment by others (Nussbaum 1999, 288-97).

12 Responses to Battle of the Feminist Law Profs

  1. jeremy says:

    I can see the appeal of the “illegal to buy, legal to sell” argument from an abstract moral perspective, but then it gets all messy and problematic when I think about it more concretely. “Illegal to do, legal to entice” seems a dicey moral trail to start down anyway and then there’s the matter of how many people see sex as a pretty uniquely enticing enticement.

  2. Mary Rose says:

    The legalize or not legalize argument always depresses me. I can truly argue both sides of this one. I suppose it boils down to one’s idea about whether one can legalize something and yet not morally endorse it. I’m not a great law scholar, so to the list: where’s the analogy? It’s not alcohol – except to a few highly religious people of various faiths, having one drink isn’t a big deal (not same to be said for keeping yourself to a single paid-for tryst?). Have we ever legalized something that bothers a broad cross-section of people on moral grounds, yet have done so in the name of making it less risky/unhealthy/shadowy/stigmatized, etc.? Would it be analogous to – oh the irony – advocating that illegal aliens should get drivers licenses?

    And, of course, it would be necessary for me to consume many, many legal drinks to imagine a world in which a politician in the United States stands up for legalizing prostitution. “Good luck with that.”

  3. laurabethnielsen says:

    I think MacKinnon would disagree with that summary of her position. – Not yours, Jeff, Slate’s —

  4. laurabethnielsen says:

    MARY ROSE SPEAKS!!! All it took was a good sex scandal.

    Big discussion at the ABF yesterday was whether prostitution (one time, which this was not) is worse than an on-going affair for a public official.

  5. Mary Rose says:

    Not so. I commented on a post regarding race and the jury…but y’all had moved on.

    Prostitution in any form….way worse. But, as always, I wish I could have discussed this with the good people of the ABF.

  6. nobamakoolaid says:

    I honestly could care less what Spitzer does with his wee wee. Its the fact that he was willing to risk such humiliation on his wife and kids that makes him less of a man to me.

    As for the list of seven above, prostitution would have a destructive effect on at least one non-commercial intimate relationship if I happened to be a party to said relationship. Can even one of you say any different?

  7. jeffaregularworkinglawyer says:

    Koolaid — I agree that prostitution is destructive to “non-commercial intimate relationships”, e.g., marriage. So is adultery. And of course adultery remains a crime in 23 states (including Illinois, where it’s a Class A misdemeanor, meaning that the maximum penalty is a year in prison) and the District of Columbia. But we don’t prosecute it much (the exception is the military — apparently adultery prosecutions under the Uniform Military Code of Justice are on the rise). Should we?

    OK, LB, what is MacKinnon’s position?

    And on the salacious side of things, one of my partners pointed out to me that Spitzer is notoriously cheap — wears the same pair of shoes every day for 10 years. So now we know what he was saving his money for.

  8. briand0n0van says:

    Sweden was the first country (in 1998) to unilaterally criminalize johns seeking prostitutes, although it’s legal for women to offer sex. The public education campaigns are heavily targeted toward the purchasers. According to Beth Bernstein (in Temporarily Yours), this has lessened the volume of street prostitution, but has pushed it indoors and online, strengthening the hand of criminal syndicates. Also, those that are targeted under the new law tend to be illegal migrants. Like Jeremy noted above, “illegal to buy, legal to sell” might make sense in the abstract, its implementation is another story.

    RE: Spitzer. Isn’t it odd to use federal wiretapping power to go after one prostitute, or one client? I keep seeing the term “prostitution ring” but it’s been all about Eliot so far. Are they really considering Mann Act charges? Really? I can see it now: “Eliot Spitzer, the Notorious White Slaver”

    Hi Mary!

  9. laurabethnielsen says:

    I think MacKinnon would say that most if not all prostitution, like other forms of legal commercial sex-for-money trades (pornography, for example) is exploitative to women — not just the women who are in the unfortunate (or fortunate, if you must make the whole “empowered prostitution” argument), but to all the women around them who are then subjected to a world in which men think women and sex are commercial things that can be bought, sold, and regulated. That’s just my read of her work. Let’s see if we can’t get her over to make it perfectly clear.

  10. Mary Rose says:

    Hi Brian!

    Because of you, when they mentioned the Mann Act in an early article, I knew what they were talking about! I even thought, “Oh, they’re going to have to get a quote from Brian on this to give it historical context.” Need an expert on white slavery? Go to Brian!

    My impression is that the form of payment, the structuring, is the bigger problem facing Mr. Spitzer. But I’m reading the same papers as you, I’m sure.

  11. laurabethnielsen says:

    Well, I guess I would say (on reliable authority) that the slate article is vastly oversimplified to inaccurate. I predict (again, on good authority) that CM described the Swedish model to the reporter, which criminalizes the sex predators and decriminalizes the prostituted people. I predict that is acceptable to CM, but that isn’t the same as saying selling should be legal — it should not be a crime for the people being sold; pimps are doing the selling typically and are criminals — and yes, buying should be a crime.

    Edited to add: This op-ed says it very well, I think:

  12. nobamakoolaid says:

    Jeff – As tempting for me personally to say that we should prosecute the hell out of betraying, backstabbing adulterers, I can’t do it. I just don’t see a compelling state interest. Maybe if we solve all our other problems like people living on the streets and children not being fed, we can then focus on this.
    Having some experience in the military, I can say that the uptick in Courts martial for adulterers started a few years ago when females were integrated onto combat ships. Not surprisingly, the Navy wasn’t prepared for what would happen. SDTs and pregnancies out at sea were only two of the more obvious problems that began; many among people married to someone else back home. Moral spiraled downward. There was a compelling state interest to take action. A similar thing happened later in Afghanistan and Iraq. Females are still not allowed on the front line in combat, but there are no distinct front lines in either of these wars. As a result, men and women are together in physical locations and in circumstances that are bound to create the same issues the Navy had.

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