Oxford Uehiro Prize in Practical Ethics: Prostitution: You Can’t Have Your Cake and Sell It*. Written by Simon-Pierre Chevarie-Cossette

This essay received an Honorable Mention in the Graduate Category of the Oxford Uehiro Prize in Practical Ethics 2017

Written by University of Oxford student, Simon-Pierre Chevarie-Cossette

Abstract:        I offer a new** argument for the thesis that prostitution is not just a normal job. It has the advantage of being compatible with the claim that humans should have full authority over their sexual life. In fact, it is ultimately the emphasis on this authority that leads the thesis that prostitution is a normal job to collapse. Here is the argument: merchants cannot (both legally and morally) discriminate whom they transact with on the basis of factors like the ethnicity or the religion of their client; but if prostitutes are ‘sex merchants’, then they cannot (both legally and morally) discriminate whom they have sex with on the basis of these factors. Yet everyone should have the full discretionary power to refuse to have sex under any circumstances.

1. Introduction

You have made it thus far: the wedding preparation is almost over. You enter your local bakery, cheekily anticipating the moment when you’ll order a wedding cake for ‘John & John’. But to your dismay, the baker turns you down because your marriage goes against his ‘Christian beliefs’.

This is a true story and it is a recurrent one. In 2013, Administrative Law Judge Robert N. Spencer found the owner of Masterpiece Cakeshop guilty of discrimination on the basis of sexual orientation.[1] The decision was then maintained by the Colorado Civil Rights Commission[2] and again by the Court of Appeal[3]. The Supreme Court of Colorado refused to reconsider the case.[4] Analogous situations have occurred in Texas and in Northern Ireland.

Discrimination occurs, unfortunately, much more frequently than homosexual weddings. Thus it has been the object of laws around the globe. For instance, the article that Spencer invokes reads:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services […]. (Colorado Anti-Discrimination Act: 24-34-601, (2) (a))

In 24-34-601, discriminatory practices are defined in the context of trade within a business establishment or a public institution, but other similar laws[5] apply to all trade indistinctly.

Sometimes discrimination is allowed. For instance, on safety grounds, a dwarf may be denied access to a rollercoaster and a leper may be refused a chiropractor’s massage. With this qualification in mind, we can introduce the following principle:

Non-Discrimination: A tradesman has the enforceable obligation not to refuse goods or services to clients on the basis of their disability, religion, sexual orientation, etc., unless this trait makes it dangerous for them to receive the service or possess the good.

Thereby the State should intervene, were it to recognise relevant discrimination. This seems plausible: discrimination can directly cause severe harm to individuals—harm they could not resist on their own. Allowing discrimination might also indirectly harm other individuals by giving rise to a toxic social environment.

The cake story teaches us a surprising lesson: if the Court’s ruling is correct, then prostitution is not a job like any other. This conclusion follows from the inclusion of sex in the list of ‘goods and services’ mentioned in Non-Discrimination together with some equally plausible principles.

§2 describes why some have taken prostitution to be a normal job. §3 argues against this from Non-Discrimination and addresses some objections. §4 concludes.

 

2. The Debate over Prostitution

Why should prostitution be recognised as a job and prostitutes as sex workers? Transactions should be legal if and only if:

(1) the transaction is voluntary;

(2) the transaction does not harm people who are not parties to it[6];

(3) the transaction does not cause an unacceptable kind or degree of harm to any of the parties of the transaction.

Prostitution, it is claimed by liberals about prostitution, satisfies these three criteria. They argue as follows. People often get involved voluntarily in prostitution. When the sexual transactions are involuntary, this is ‘rape’ or ‘human trafficking’, not ‘prostitution’. No one else is involved in the sex transaction: it is a service delivered by an individual to another, in a private environment. Finally, the harm of prostitution to the prostitute is comparable to the harm of many other stressful jobs (Nussbaum 1999, 288–97). Voluntary activities that fail to satisfy the third criteria are very rare (e.g. cannibalistic transactions[7]) and do not include prostitution.

Hence, liberals about prostitution endorse:

Normal Job: Prostitution is a job like any other; hence, it should be legalised and regulated in accordance with the general rules of trading goods and services.

One should note that Non-Discrimination is part of these general rules.

Non-liberals about prostitution normally object to Normal Job on the grounds that prostitution does not satisfy (2) and (3). They firstly argue that the transaction harms people outside of the sexual transaction because it transforms the nature of non-market sexual relationships (E. Anderson 1993, 154–55), for instance by representing women as sexual servants of men (Satz 1995, 78). Non-liberals secondly argue that selling sex is extremely harmful to the prostitute because it expresses a lower social status and a loss of identity (Pateman 1988, 207) or because it limits the agent’s autonomy (S. A. Anderson 2002, 386).

The disagreement over (2) turns principally on which harms should be recognised as such by the State. For instance, if I hurt my wife by kissing another woman, it is not the State’s business. Liberals think that the same goes for the sexist symbols conveyed by prostitution. For our purpose, I will leave this question aside.

The disagreement over (3) turns on whether sexuality is special to human integrity. Selling sex is degrading, claims the non-liberal. The liberal disagrees: it is up to anyone to determine the meaning of sex in their life. State intervention only worsens the lives of prostitutes. More generally, the liberal endorses:

Liberal Sexuality: The State is permitted to prevent, or punish one of the parties to, a sexual transaction if and only if this transaction is or was involuntary.

This principle enshrines the absolute discretionary power that each has over their sex life.

 

3. Discrimination of Clients: Sex and Cake

I agree that Liberal Sexuality is intuitive and that prostitutes should be protected. Nevertheless, prostitution is not a job like any other. This becomes clearer when we combine the liberal principles with the lessons of the cake story:

Normal Job: Prostitution is a job like any other, i.e. it should be legalised and hence regulated by the general rules of trading goods and services.

Non-Discrimination: A tradesman has the enforceable obligation not to refuse goods or services to clients on the basis of their disability, religion, sexual orientation, etc., unless this trait makes it dangerous for them to receive the service or possess the good.

Liberal Sexuality: The State is permitted to prevent, or punish one of the parties to, a sexual transaction if and only if this transaction is or was involuntary.

These three principles are jointly untenable. Normal Job and Non-Discrimination together entail that prostitutes have an enforceable obligation not to refuse service to clients on the basis of their disability, religion, etc. Now assume that a prostitute refused a sexual service to a client on such a basis. The prostitute might find it sickening to sleep with a married man; she might detest having sex with a fundamentalist; whatnot. According to Non-Discrimination, the state may intervene (to require that she stop discriminating and compensate the client). But Liberal Sexuality tells us that the State may not intervene because there has not been an involuntary sexual transaction. The prostitute is free to refrain from having sex regardless of her reasons. By reductio, I suggest that liberals about prostitution abandon Normal Job.

A natural response to this argument is to insist that the State intervention in such a case is not strictly speaking about sex. The States does not force the prostitute not to discriminate, but rather not to discriminate if she wants to keep her job. The object of the enforced obligation is thus not sexual. It reads: ‘If you want to keep being a prostitute, then …’. Thereby, Normal Job, Non-Discrimination, and Liberal Sexuality are compatible.

This reply at best defers the refutation of Normal Job. Consider two additional principles:

Exploitation: One’s being forced either to have sex with someone whom one does not want to have sex with or to quit one’s job is an exploitative situation.

And

Role of State: The State should never create exploitative situations.

Role of State is minimal: most liberals think that the State should not only refrain from creating but also fight (directly or indirectly) exploitative situations. Exploitation is also difficult to deny. It warrants our judgement that teachers and bosses should generally not have sex with their students or their employees. This is because there is a high risk for a person in authority of putting her subordinates in an exploitative situation or in a situation that is perceived as such.

Note that if a prostitute in the situation described in Exploitation decided to have sex nonetheless, without changing her mind about what she wanted, it would intentionally, but not voluntarily. If I decide to hand in my wallet to a burglar because I do not want to risk my life, I do so intentionally but involuntarily (Hyman 2015).

Exploitation, Role of State, Non-Discrimination, Liberal Sexuality, and Normal Job are jointly contradictory. Here is how. A prostitute who would discriminate on the basis of her client’s sex, religion, etc. would infringe her enforceable obligations (by Non-Discrimination and Normal Job). At this point, the State cannot directly intervene to force the prostitute to have sex (by Liberal Sexuality). Rather, it may send the message to the prostitute: ‘have sex against your will or abandon your job’. The State has thus created an exploitative situation (by Exploitation). But the State should never do so (by Role of State). By reductio, I suggest that we abandon Normal Job, for it is the weakest link of the reasoning.

Importantly, my argument does not assume that there are voluntary sexual interactions that the State should recognise as degrading. The argument maintains that the State should intervene when the interaction is involuntary, but not when the interaction is undesired, unemotional, etc. As such, it is compatible with Liberal Sexuality.

This becomes clearer once we distinguish the claim that voluntary sex is a special good (which the liberal denies) and the claim that involuntary sex is a special wrong (which everyone should admit). You do not need to think that sex is particularly transcendent to agree that being forced to choose between unemployment and sex with an individual that you do not want to transact with is exploitative. Some might point out that Exploitation should also be applied to similarly harmful tasks. I fully agree: if prostitution were just like other normal jobs, it would mean that normal jobs were exploitative. But being forced to prepare hamburgers is not as demeaning as being forced to have sex

 

4. Conclusion

I am aware that my argument might look contrived to people who are concerned with the serious injustices of the sex trade. Clients who are discriminated against are certainly not the actual victims of this system. But this was not the point: I rather wanted to show the tension amongst liberal tenets on prostitution and discrimination. If we think that one should retain the absolute power to refrain from having sex and if we agree with the Court of Colorado’s enforcement of civil rights, we should resist the idea that prostitutes are normal tradesmen.

* This would make it a very special job indeed.

 

5. References

Anderson, Elizabeth. 1993. Value in Ethics and Economics. Cambridge, Mass ; London: Harvard University Press.

Anderson, Scott A. 2002. “Prostitution and Sexual Autonomy: Making Sense of the Prohibition of Prostitution.” Ethics 112 (4): 748–80.

Assemblée nationale du Québec. 1975. Charte Des Droits et Libertés de La Personne.

BBC News. 2015. ‘Germany “Cannibal” Trial: Former Policeman Is Sentenced’, April 1. http://www.bbc.com/news/world-europe-32146031.

Hyman, John. 2015. Action, Knowledge, and Will. Oxford: Oxford University Press.

Nussbaum, Martha Craven. 1999. Sex & Social Justice. Oxford: Oxford University Press.

Pateman, Carole. 1988. The Sexual Contract. Stanford, Calif.: Stanford University Press.

Satz, Debra. 1995. ‘Markets in Women’s Sexual Labor’. Ethics 106 (1): 63–85.

Saunders, Ben. 2016. “Reformulating Mill’s Harm Principle.” Mind 125 (500): 1005–32.

The Parliament of the United Kindgom. 2010. Equality Act 2010.

The State of Colorado. n.d. Colorado Anti-Discrimination Act.

Watson, Lori. 2014. ‘Why Sex Work Isn’t Work’. http://logosjournal.com/2014/watson/.

 

* I wish to thank Tanya Goodchild, John Hyman, and Marc-Kevin Daoust for their invaluable comments.

** After the completion of this paper, the author discovered that its central thesis had been briefly (and differently) considered in a blogpost (Watson 2014).

[1] See Craig & Mullins vs Masterpiece Cakeshop Inc. & Phillips; CR 2013-0008, December 2013.

[2] See the Colorado Civil Rights Commission’s decision, CR2013-008, May 2014.

[3] See Court of Appeals No. 14CA1351, August 2015.

[4] See Supreme Court Case No. 2015SC738, April 2016.

[5] See, for instance the Equality Act 2010 of British Law or ch. I, 1., 10-12. of Québec’s Charter of Human Rights and Freedoms.

[6] Those who do not consent should not be harmed (cf. Saunders 2016, 1111).

[7] See the case of Detlev Günzel (http://www.bbc.com/news/world-europe-32146031).

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7 Responses to Oxford Uehiro Prize in Practical Ethics: Prostitution: You Can’t Have Your Cake and Sell It*. Written by Simon-Pierre Chevarie-Cossette

  • Paul Treanor says:

    Any evidence for this claim?

    … being forced to prepare hamburgers is not as demeaning as being forced to have sex

    Not here, and nowhere else either. Whether something is ‘demeaning’ is always subjective. And one typically demeaning aspect of low-grade service jobs is that you have to serve all the customers with a smile. The inability to discriminate is a feature of most service jobs, not just prostitution. Fast-food workers can’t pick and choose their clients – only the manager can refuse service, and will probably only do that in cases of disruptive behaviour.

    The comparison with cases such as Craig & Mullins vs Masterpiece Cakeshop Inc. & Phillips is therefore invalid. The bakery’s employees did not make the decision, the owner did (Jack Phillips). Prostitution may not be a normal job in the sense that everyone would be happy doing it, and most of the world’s prostitutes suffer exploitation. However, their factual inability to pick and choose their clients can not establish that prostitution is fundamentally different from all other jobs, because it is a standard condition of service employment.

    • Simon-Pierre Chevarie-Cossette says:

      What is the difference between being forced to have sex and being raped? If there is no difference, then surely preparing hamburgers is *not* just as bad. This would be genuinely insulting to victims of rape.

      Are there acceptable ways of being forced to have sex which do not amount to being raped? Perhaps my essay is not convincing on this front. I will think more about it.

      The fact that ‘demeaning’ is subjective means in no way that different demeaning experiences cannot be compared. There is a long tradition (cf. Mill, ‘Utilitarianism’) of comparing not only different degrees but different sorts of pains. After all, we do this all the time: if we have to spend an evening comforting a friend, we will choose the one who has just learnt that he had cancer over the one who caught a nasty flu that morning. This is in virtue of competently judging that some experiences are more painful than others. Being forced to have sex seems like one of these very nasty experiences.

      As for discrimination, I cannot but agree that employees do not have the ability to discriminate. This is a feature of most service job, and perhaps to a greater extent than what I have claimed. But this is exactly what makes prostitution special: everyone has to have the ability to discriminate who they have sex with; the conclusion must be that somehow prostitution is *not* a job like any other.

      • Paul Treanor says:

        Now you have de facto introduced a new claim, which was not in the original essay, namely that prostitution is rape. In your essay, the only mention of rape is to dismiss the liberal use of ‘rape’ to distinguish trafficker / pimp prostitution from non-trafficked non-pimp prostitution.

        You ask: What is the difference between being forced to have sex and being raped?

        Legally, there is no single answer, because some countries require force or threat to define ‘rape’, while others define rape by absence of consent, even if no threat or force is used. This is a minefield of definitions, and if you want to make the claim that the act of prostitution is rape, then you need to clarify.

        The radical feminist position is clear: namely that sex is rape. More precisely all sexual acts performed by a man against a woman are oppressive, harmful, non-consensual, malicious, femicidal, and so on. Some feminists also claim that porn models are raped by the consumers of porn, even if they never meet. This feminist position implies that prostitution is just as bad as a romantic-love sexual relationship, although radical feminists would be enraged if their views were used to justify prostitution in any way.

        So in the absence of any consensus on definitions, I don’t think anyone can simply claim that prostitution is rape, and as such criminal. There is little point in further argument here, unless you clarify your position.

        Demeaning is subjective. You claim that different demeaning experiences can be compared, and you imply with your example that they can be compared by a third party. That is not true: only the person who undergoes two experiences can compare them in this way. There is no neutral measure of demeaning.

        Finally you claim that “everyone has to have the ability to discriminate who they have sex with…” You don’t justify this in any way. Why should they have this ‘ability’ (right would be more accurate) for sex partners, but not for neighbours, teachers, or colleagues?

        I said it already: most condemnation of prostitution relies on the intuition that there is something uniquely horrible about a woman having sex for money. Thats’ why opponents of prostitution keep repeating this line of argument, in different forms. However that intuition is not universal, any more than the intuition that sodomy is uniquely abhorrent.

  • Paul Treanor says:

    What is the source of the fallacies in this piece? Some derive from the use of ambiguous terms such as ‘jobs’ and the archaic ‘tradesmen’. Simon-Pierre Chevarie-Cossette claims that the liberal position on discrimination is as follows:

    A tradesman has the enforceable obligation not to refuse goods or services to clients on the basis of their disability, religion, sexual orientation, etc., unless this trait makes it dangerous for them to receive the service or possess the good.

    He then claims, misleadingly, that this principle applies to the ‘cake story’ meaning the case Craig & Mullins vs Masterpiece Cakeshop Inc. & Phillips. It does not. Discrimination law does not speak of ‘tradesmen’, it applies to natural or legal persons who allegedly discriminate. In the case of a business, a legal person, then the employees, whether ‘tradesmen’ or not, are not parties to legal action. The employees are not the ‘person’ to which Colorado law refers, and this is true of most anti-discrimination law, and for most law related to business practices in the widest sense. It is the business itself, a legal person, which is liable.

    Employees therefore do not have the enforceable obligation which Simon-Pierre Chevarie-Cossette claims they have. In practice, they have nothing to say on who is served or not, whatever the ‘service’ actually consists of.

    What Simon-Pierre Chevarie-Cossette is trying to claim is that individuals in “normal jobs” enjoy full autonomy with respect to who they serve. They don’t. That is a complete fiction. You do what the boss says, or you get fired. In this respect there is no difference between a “normal job” and prostitution. If a prostitute is an employee at a brothel, then she is hired to have sex with customers, just as fast-food workers are hired to serve hamburgers. Neither of them can pick and choose which customers they serve. In the real world, very few prostitutes are employees: in western countries they are normally technically self-employed. But if they are indeed comparable to a business, then they don’t have a ‘job’ either, in plain English. Employees ‘have a job’. Definitions matter, and this is why ambiguous terminology should be avoided.

    How much it matters is clear from this claim in the essay:

    One’s being forced either to have sex with someone whom one does not want to have sex with or to quit one’s job is an exploitative situation.

    If you remove the reference to sex, then this is simply a description of the general condition of an employee:

    One’s being forced either to serve hamburgers to someone whom one does not want to serve hamburgers to or to quit one’s job is an exploitative situation.

    All jobs in a free-market economy involve a loss of moral autonomy. The employees must perform a task which they would not otherwise perform, in order to sustain themselves and any dependents. They are all by definition ‘exploited’. The worker has nothing to sell but his labour power, as someone once noted.

    Opponents of prostitution often try to disguise their motives, and present themselves as reasonable people who are concerned for the welfare of the prostitutes, most of whom are women. But in the end it usually comes down to the claim, that there is something uniquely horrible about a woman engaging in sex for money. If they were honest, they would admit that they adhere to an alternative ideal of sexual relationships. Christians dislike prostitution because it is not marriage, secular conservatives often believe in romantic love and mutual respect, radical feminists think that men should not insert their penis into a woman under any circumstances. All these ideals are valid as such, the issue is whether the state ought to impose their preferences on the rest of the population. It might be better if we talked about that issue, instead of prostitution itself.

    • Simon-Pierre Chevarie-Cossette says:

      Thanks for your comments. I will consider them before presenting the final version of the text. Just to be clear, the text’s conclusion is *not* that prostitution should not be legal; it is rather that, if it is, then it should not be submitted to the same legal obligations as other jobs, thus making it a ‘non-normal’ job.

      I have not claimed that employees enjoy full autonomy as regards who they serve. It is precisely because they do not (and because the owners do not in other ways), added with the fact that no one should be forced (by the state or by a boss) to engage in a sexual relation that prostitution differs from other jobs.

      Now, if one wants to argue for the claim that no one should be forced to work in general (e.g. selling hamburgers) — which is a much more controversial claim than the claim that no one should be forced to have sex — , they may do so. G.A. Cohen has done just that in ‘The Structure of Proletarian Unfreedom’. It will not contradict what I claim in this short piece.

      • Paul Treanor says:

        Why exactly is it a fact that “that no one should be forced (by the state or by a boss) to engage in a sexual relation”? Again this claim is without evidence or argument. The state forces people to do many things, more in some states than in others. A relevant example is compulsory military service, which carries huge risks, especially in wartime. If that is acceptable, then why not sexual service? Equally bosses force employees to do many unpleasant things, such as cleaning sewers from the inside. That’s considered acceptable, so why not sex as work?

        There is too much circular reasoning here. By starting from the premise that paid sex is wrong, opponents of prostitution argue that women should not have to do it, and therefore that prostitution is wrong.

  • Michael James says:

    I thought this argument was rather well constructed, actually. Perhaps a little more detail on the content of the Liberal Sexuality principle would demonstrate why Paul Treanor’s objections fail.

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