As a defense attorney practicing in the courtrooms of Queens and Manhattan some years ago, a few of my clients were prostitutes who were busted for doing their job.

It occurred to me while bargaining their sentences down to little jail time: What an absurd machine I’ve been caught up in. It was the same feeling I got defending drug “criminals” in Drug Court.

The injustice of prostitutes being criminally charged may change soon as the state of New York is preparing – quietly and after an interminable wait – to decriminalize prostitution. New York’s prospective law:

“would allow paid sex between consenting adults — decriminalizing both the buying and the selling of sex, as well as promotion of prostitution — while maintaining prohibitions on trafficking, coercion and sexual abuse of minors.” –  New York Times.

This would be a huge improvement in the current state of affairs because: and take time with this sentence – not only can we not effectively legislate morality but trying to, causes more harm than good.

In his well-regarded legal studies, Professor Tom Tyler (Yale) found that prohibition of drugs (and we can assume prostitution) only dissuades five percent of people from indulging in a vice. This means the entire joint edifice of the war on drugs and the war on women only dissuades a small number of people. That represents an incredible price – when you toll it up next to the costs – for a vanishingly slim payoff. The data didn’t apply specifically to prostitution but we can make a guess that the dynamics of personal choice, the risk-reward calculation, is similar to that “vice” also.

There’s always the argument: “Well if you legalize it (heroin, prostitution, gambling, etc.) everybody will do it.” The response to which is: “Would you?”  – or – “Would anybody you know?”   At that question, the prohibitionist usually wilts.

Harm reduction works: it’s that simple. But there are some bumps on the legislative road before the world’s oldest profession is legitimized in America’s most progressive state.

The first goes very deeply into the psychology of humans. Like anti-abortionists (“pro-lifers”, as if a woman’s control of her body is somehow “pro-death”), anti-prostitution activists are not trying to punish sex for money. When the price isn’t an issue it is called dating or marriage. But deep in our lizard brains, we all have a dog in the fight against promiscuity.

They are evolutionary reasons for this which differ for each gender. For men its cuckoldry: prostitution is opposed by some men for the same reason legalized abortion is – it is seen as encouraging promiscuity which is taken as an entrée to cuckoldry. That is the motivation, psychologically speaking, even if the prohibitionists don’t realize it themselves. For men promiscuity can be a disaster because it can lead to cuckoldry and from an evolutionary biology standpoint (involuntarily) raising another man’s child is a genetic dead end and to be avoided at all costs.

For women, promiscuity is a threat also because, well, its competition. It’s why “pro-lifers” also condemn contraception as well as abortion – because again their goal is not to “save the babes” – it’s to stop people screwing.
Further, given that pscho-dynamic undergirding, another motivation for the prohibitionist is sheer spite: just look at the (usually male) old, obese, red-faced shouters outside abortion clinics or those standing up against legalized prostitution: those men aren’t getting any “action” anytime soon. Never underestimate spite in human motivation. Again – this is often unbeknownst to the person as a lot of our motivations are sub-rational.

What would legalization and legitimization mean for the prostitute “victims”? For a start, they wouldn’t be branded criminals with that stain pursuing their life and career forever. It would mean they’re not sent to jail where they would otherwise fall into company with better criminals at Jail University.

They’d have an OSHA regulated workplace regarding hygiene and safety, help from the police in the case of “disagreeable” (violent, murderous) customers, legal rights, better treatment by and access to the health care community and thus better medical care.

And hopefully, they’d win a place in society that is less victimized by the scorn of religious fanatics and moral purists from both right and left.

We don’t even need to experiment when it comes to Harm Reduction – just look at the data: the regulated, controlled prostitution laws of northern Europe and Australia have reduced human trafficking significantly and with it much of the stigma. Legalized prostitution works.

In Sydney, Australia, there are several large, legal brothels – “Four floors of whores!” goes the off-color joke – and they’re run according to strict government regulations. The same is true in Northern Europe, Brazil, Turkey and parts of the developing world including two counties in Nevada.

A threat to New York State and the pressure group decrim.org’s efforts exists though: the recent trend on the left of categorizing all prostitution as “sex trafficking”. The logic, by some feminists and Christians, goes as follows –

– I wouldn’t be a sex worker
– Other people wouldn’t (because I wouldn’t and I’m right), so by definition prostitutes must be coerced.
– That means all prostitutes are trafficked.

What a terrible argument! For a start, they’re not.

Secondly, while surely no little girl on her 10th birthday says she wants to grow up and be a hooker, equally few say they want to grow up and be a shelf stocker at Walmart or eviscerate chickens at a meat freezing works. People make trade-offs and choices as options present themselves and for some women sex for money is a rational, considered payoff.

The categorizing of all prostitutes as trafficked sex slaves works against the very best thing which protects them: legalization, legitimization, and regulation. Like New York State is trying to do – ever so quietly.

The women I defended in court were marginal people – forced into a job few would prefer but some do choose, as many of us take less than optimal paths in life. The State, pushed by people blessed with better life circumstances,
decided these marginal women need to be punished by prohibition. Let’s end this madness.

Australian-American writer David Anderson formerly practiced criminal defense law in the courtrooms of Manhattan and Queens.