Should Prostitution be Banned because it is Exploitative? 6 December 2016
Religion invariably provides sexual ethics to its adherents. How, where, when, and with whom, one should engage in sexual relations are issues upon which scholars of Islam, priests of Christianity and rabbis of Judaism have all lectured upon (and the same goes for Hindu traditions, Buddhism and too). There is the rather simplified contention that by contrast, in liberal secular societies, sex is a private concern and provided it is kept private and between consenting adults, the state should not get involved.
Prositition is blurred area, where the ordinary boundaries of private/public and consent/coercion break down. Some people have argued that it should be a crime to buy, even if not to sell, sex, on the grounds that it constitutes exploitation. However, it is not clear what ‘exploitation’ means. It is not clear that the buying or selling of sex is exploitative. It is not clear that it should be a crime if it is exploitative.
According to Karl Marx those workers who are employed by capitalists are invariably and inevitably exploited by them no matter how high their wages are in absolute terms.
Although he does not present an explicit analysis of the concept as such, there seems to be, for Marx, two aspects to this ‘exploitation’. One concerns the proportionate shares of the outlays of and the returns to the different parties to the arrangement. The other concerns the motivation of the members of the proletariat in entering into the arrangement. Specifically, Marx contends that the capitalists gets more from their employees than they pay them for and that the proletariat would not work for the capitalists unless they had to do so in order to live.
This notion of ‘exploitation’ is contentious.
If A and B transact voluntarily, A agrees to do something for or with regard to A and B agrees to do something for or with regard to B. We might presume that both imagine that the transaction will benefit or otherwise please them in some way that equals or exceeds what they consider to be the cost or inconvenience of the transaction to themselves.
However, there is no reason to suppose that there will be or should be any sort of equivalence between the benefit to each or the cost or inconvenience to each of the two parties.
From a transaction with my dentists, I gain relief from pain and he gains a sum of money. How can such benefits be commeasured? Why should we want to commeasure them? I will lose a particular sum of money. He will lose the time it takes to give me the dental treatment. Even if such losses were commensurate, it is not obvious that there would be any point to or relevance of the mensuration.
Desperation, keenness or enthusiasm of any sort does not preclude the giving of sufficiently valid consent. After all, I might well be enthusiastic, keen or even desperate for my dentist to treat me. Every day, in hospitals throughout the country people are told that, if they do not have particular operations and medical treatments they will die. However, we do not consider that the consent they give is somehow rendered invalid by their desperation.
Marx does not suggest that it should be a criminal offence for a capitalist to employ and – in his view – thereby exploit a member of the proletariat. Exploitation as such should not be a criminal offence according to Marx. On that point at least, I agree with him.
Suppose that a football fan bets a rival fan that his team will win the league and reneges on the bet when they finish third. Suppose that, in order to have sex which would otherwise not have been consented to, a rich man promises to marry a particular woman with no intention of actually doing so. I would suggest that these are two examples of exploitation. However, it does not follow that such behaviour is or should be criminal because it is exploitative.
According to Wertheimer and Zwolinski ‘At the most general level, A exploits B when A takes unfair advantage of B.’
Merely to take advantage of someone is not exploitation. Similarly, to take advantage of what might be unjust circumstances is not exploitation. For instance, a dentist, a divorce lawyer and a criminal lawyer might take advantage of our toothache, or our marital discord and our wrongful accusation of criminality to earn money from us without exploiting us no matter how unfair or unjust is the physical or mental anguish which occasions us to purchase his or her services.
In my view, whether or not an action is exploitative depends on the nature of the behaviour of the supposed exploiter rather than on behaviour and circumstances of the supposed exploited person or on the consequences of the supposed exploitation upon him or her.
To threaten someone with a gun and thereby steal, say, his watch is exploitation. To offer to buy a watch from someone who is desperate to sell his watch is not necessarily exploitative. To force someone to have sex regardless of his or her consent is exploitation. To offer payment to someone to have sex is not necessarily exploitative no matter how desperate for money the latter person might be.
To play snap for money with someone who has a severe stammer might well be exploitative: it might be the taking of an unfair advantage. It does not follow that it should be a criminal offence.
There might – but might not – be good reasons for making it a criminal offence to buy sex. That it constitutes exploitation is not one of them.