David R. Henderson  

Jimmy Carter's Unpersuasive Case Against Legalizing Prostitution

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In "To curb prostitution, punish those who buy sex rather than those who sell it," Washington Post, May 31, former president Jimmy Carter advocates what the title says.

His case is unpersuasive. By his case, I mean his case against legalization. I don't mean his case that the government should punish those who buy sex rather than those who sell it. I don't have a prior view on which is a more effective way to discourage prostitution. A punishment is like a very crude tax. So in advocating punishment on those who buy sex and not on those who sell it, Carter is advocating, in a sense, getting rid of the crude tax on prostitutes and imposing a crude tax on buyers of prostitutes' services. There's a whole, well-established literature in economics that says that for a given size tax, it doesn't matter whom the government imposes it on. The relative burden is borne by the buyers and sellers according to their elasticities of supply and demand. I would bet, though I don't know, that the elasticity of supply of prostitutes' services is relatively high and that the elasticity of demand is relatively low. If that's so, then most of the burden of the crude tax would be borne by buyers rather than sellers, independent of where it is placed.

But that tax-type analysis assumes that the government can just as easily impose the tax on buyers as on sellers. In fact, there's a reason to think that that assumption is false, and it has to do with specialization. Most prostitutes, I suspect, are in the business more or less full time and most customers, again I suspect, are not full-time customers. So a government that wants to crack down on prostitution will be more successful going after the smaller number of, and more easily identifiable, sellers than going after the much more dispersed buyers. I'm guessing also that governments figured this out long ago, and that is why, until recently, virtually all the enforcement has been against sellers.

There is one very big hedge to my argument directly above. One way to impose a very heavy "tax" on buyers, that doesn't take a lot of effort by government, is to publicize the buyers. The various "pillars of the community" who buy sex would face a very high implicit tax. This, I also suspect, is why some governments are moving in this direction.

But back to the point I really want to contend with Carter on: his casual and unpersuasive case against legalizing prostitution. I'll quote all the sections where he discusses that issue, and respond to each.

Carter writes:

Some assert that this "profession" can be empowering and that legalizing and regulating all aspects of prostitution will mitigate the harm that accompanies it. But I cannot accept a policy prescription that codifies such a pernicious form of violence against women. Normalizing the act of buying sex also debases men by assuming that they are entitled to access women's bodies for sexual gratification. If paying for sex is normalized, then every young boy will learn that women and girls are commodities to be bought and sold.

Notice that in his first sentence above, Carter correctly states the argument that many of us who advocate legalizing prostitution have made. Various people have pointed out that when you legalize it, you actually reduce the role of pimps because women and girls would know that when they get raped, or simply not paid, they have legal recourse. They have also pointed out that legalized prostitution is generally safer than illegal prostitution because when prostitution is legal, brand names and reputation are easier to establish.

Interestingly, Carter does not attempt to refute these claims. He simply changes the subject. He says, "But I cannot accept a policy prescription that codifies such a pernicious form of violence against women." Put aside the fact that what Jimmy Carter can or can't accept should have zero effect on policy. But the policy prescription is not to codify violence against women: it's to legalize prostitution. Carter cheats. The only way his statement makes sense is if sex that's paid for is violent. But that's just a sneaky underhanded redefinition of violence. (I put aside here the fact that some buyers of prostitutes' services actually are paying to be violent to women. If the women want that, and know that that's what's being demanded, then the violence is like the violence in a boxing match where the opponents are unevenly matched. The key is that the woman accepts the violence. If she doesn't agree to be treated violently, then the violent man is simply committing assault.)

Carter then says, "Normalizing the act of buying sex also debases men by assuming that they are entitled to access women's bodies for sexual gratification." I think he doesn't understand voluntary transactions. The men are not entitled at all. The very essence of a free exchange is that neither side is entitled and that they come to a mutual agreement. As for debasing men, he could well be right. But should that be an argument for throwing the men in prison? I think that would debase them even more.

Carter then writes, "If paying for sex is normalized, then every young boy will learn that women and girls are commodities to be bought and sold." Notice the inaccurate language to bias the reader in his direction. Legalizing prostitution allows men to buy the sexual services of females. It doesn't allow them to buy women and girls. Most readers of this blog sell their services to willing buyers. I bet no readers of this blog are sold to willing buyers.

Carter goes on to criticize the arguments of those who advocate legalization, writing:

Critics of the Nordic model assert that mature adults should be free to exchange money for sex. This argument ignores the power imbalance that defines the vast majority of sex-for-cash transactions, and it demeans the beauty of sexual relations when both parties are respected.

Sex between people who experience mutual enjoyment is a wonderful part of life. But when one party has power over another to demand sexual access, mutuality is extinguished, and the act becomes an expression of domination. As author and prostitution survivor Rachel Moran explained in her book, "Paid For," once money has exchanged hands, a woman must deliver whatever service the customer demands.

He may well be right that there is a power imbalance, in the direction he implies, in "the vast majority of sex-for-cash transactions." But think about that a moment, at least longer than he appears to have done. If it's true that prostitutes have little power, then, when you make it more difficult legally for their customers, you don't increase their power. So his argument is not an argument against legalization.

He writes above, "But when one party has power over another to demand sexual access, mutuality is extinguished, and the act becomes an expression of domination." What he ignores is that one party has power over another only by mutual consent. Legalization of prostitution is not the same as the draft. (By the way, which President was it in 1980 who pushed for, and got, reinstitution of draft registration? Now that's an expression of domination.) And the act may well be an expression of domination. But so what? The prostitute is free to interpret it as she wishes also.

Finally, Carter writes above, "once money has exchanged hands, a woman must deliver whatever service the customer demands." This is a misstatement. My impression from reading the literature on prostitution is that the woman must deliver what she promised. Customers may demand certain things, but prostitutes are free to say no.

I have been impressed by many things our 39th president has done since being president and even by a few things he did as president (e.g., deregulation of airlines, trucking, and railroads.) But the Washington Post article he wrote is not one of them.

Comments and Sharing

COMMENTS (11 to date)
Alexandre Padilla writes:

First, it's important to recognize that prostitution or sex work is not supplied only by women. There is such a thing as male prostitution.

Second, I have serious difficulties to see why it is perceived as different when one takes a woman or a man out for drinks and dinner with expectations of more coming after and actually having an explicit contract where money will change hands and the supplier of sex will then use that money to get dinner and drinks. Even though in the first case, it's not necessarily true that there will be sex, I would expect that often such expectations exist and drinks and dinner become an implicit contract.

Third, as a consequentialist, and from a comparative institutional analysis viewpoint, I have yet to see serious empirical evidence that under an institutional arrangement where prostitution is prohibited, violence against prostitutes, STIs and HIV rates, and sex slavery (that is women and men, and children being forced to work as sex workers) are lower than under an institutional arrangement where prostitution is decriminalized or legalized.

Finally, it's only my opinion but I am extremely worried from a consequentialist viewpoint when one wants to legislate morality or legislate what's an appropriate or inappropriate relationship between two consenting adults (I understand the argument that most people engaging in supplying sex for money are poor and one can argue about what consenting means but then where do we stop?)

BC writes:

"A punishment is like a very crude tax."

That may be true if the punishment is a fine, but it doesn't seem to apply as well if the punishment is jail. Jail time and cash are not really fungible even if there is a price at which one would be willing to accept some risk of going to jail. So, even if jail time for buyers results in lower prices for sellers and jail time for sellers results in higher prices for buyers, statutory incidence would seem to matter --- it affects who goes to jail and who gets less cash. That's different from a tax or fine, where each party ends up with the same (after-tax) cash, regardless of statutory incidence.

I agree with your critique of Carter's arguments against legalization.

Colombo writes:

There are many possible punishments. I think the optimum punishment would be to force men to marry the prostitutes and maintain them, reitirng them from the streets, and avoiding wasting money on prison.

That would mean to legalize polygamy, both for men and women. Being so difficult for just one man to maintain many wives and perhaps some male-wives, I suspect such a man should end up either asking for a dole, or prostituting himself hoping to marry a billionare, or perhaps joining a mutualist association of patrons of prostitutes that helped each other out. This association would grow rapidly in numbers, and economic power, and would eventually seize political power. And then people like Carter would say "American Democracy is collapsing and I don't know why".

My recommendation is to first ban all kind of mutual aid civil associations, including churches and secular clubs, and then proceed to further criminalize americans.

Jim Jones' cult comes to mind.

Benjamin Cole writes:

Heard from a hooker:

"I might have sex for money, but I sure would not marry for it."

She had a point.

Jimmy Carter is a nice guy. But sex should not be criminalized, even commercial sex.

Power imbalances? And where does that stop? Men take on very dangerous jobs to earn money.

Officially, 96 men were killed in the construction of the Hoover Dam. Power imbalances?

Joe Munson writes:

Don't forget about the male prostitutes!

Though, from my experience with the counter culture of salt lake city it seems prostitution is actually a ticket out of power imbalances... it just enables you to earn so much money in so short time.

If prostitution were legal the economic power of the most vulnerable subsection of woman would increase quite substantially.

Moreover, if society really wanted to *really* help those "stereotypical" abused prostitutes, then we'd grant minor's actual rights, so they can have recurse if they have terrible terrible parents.

As of now its choose between terrible parents and foster care (which is essentially a different terrible parent), and that is only assuming you can prove your parent is breaking the law; quite a feat when they have near absolute authority over almost every aspect of your life.

John Alcorn writes:

A nation's policy towards sex work is complicated by international supply of sex workers. There is preliminary evidence that some forms of legalization increase international trafficking (coerced inflows) of sex workers. See Cho & others, "Does legalized prostitution increase human trafficking?" World Development 41:1 (2013) 67-82 and Jakobsson & Kotsadam, The economics of trafficking for sexual exploitation (MS 2015).

Given the empirics, a challenge for those who favor freedom is to design a policy that prevents or minimizes trafficking (the element of coerced supply), but does not unduly obstruct voluntary sex work. Samuel Lee & Petra Persson propose such a policy in an innovative paper, Human trafficking & regulating prostitution (MS 2015):

"[...] we rank prostitution policies that are currently in use in terms of their (potential) effectiveness against trafficking as well as their impact on voluntary prostitutes. On one side, the Swedish model (criminalizing johns) dominates the traditional model (criminalizing prostitutes). On the other side, the Dutch model (licensed prostitution) dominates decriminalization. Choosing between the Swedish and Dutch models, however, casts the prevention of trafficking against the civil liberties of voluntary prostitutes. Finally, we show that a hybrid Dutch-Swedish policy – licensing prostitution and criminalizing the purchase of unlicensed sex – resolves this tension. It thus dominates all existing legal approaches in our framework, while facing the same enforcement constraints as the two existing policies that it is a combination of."
John Alcorn writes:


There might be a blind spot in the two-pronged policy of (1) a requirement of licensing sex workers on the supply side and (2) a prohibition against buying services from unlicensed sex workers on the demand side. If legal sex work still entails stigma, then the requirement of licensing might drive underground many sex workers who might prefer to offer services secretly, rather than incur a greater risk of exposure (and attendant stigma) by official registration.

Effective privacy protections would be crucial to such a regulatory approach.

michael pettengill writes:

Episode 8 of PBS Point Taken debates this point.
Should Paying for Sex Be a Crime?

Before the debate, 28% of the audience voted sex for money should be a crime. After a high school drop out with three kids who earned a thousand per week at 17, with a free market advocate made their case against two big government advocates of criminalizing it, 48% voted in favor of sex work being a crime.

Not sure what the winning argument was, but one point was classic conservative morality, sex should be tied to love and marriage.

The argument that sex work should be regulated like barbershops the way it's done in Las Vegas did not seem to be a winning argument.

10 minutes per side to state and defend a very simple position isn't very long, but it's much more than is provided anywhere these days.

N. Joseph Potts writes:

[Comment removed. Please consult our comment policies and check your email for explanation.--Econlib Ed.]

LouisM writes:

[Comment removed. Please consult our comment policies and check your email for explanation.--Econlib Ed.]

Don Alamo writes:

I think David Henderson dissects Carter's arguments very successfully and shows they have no merit.

Of course, none of this discussion is breaking new ground, so why are Carter's arguments still being repeated? Because they are a rationalization for the true motivation, which is that certain forms of sex are low-status and violate purity ideals and therefore should be punished.

It's not fashionable in a (relatively) free society to punish people for the violation of purity ideals that they themselves don't care about, so seemingly rational reasons like disease or lack of autonomy are invented. It's not clear that rational discourse will prevail against these emotions in the political arena.

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