Why can't "right to privacy" be used to force legalization of prostitution?

[Bacillus anthracis]

Fourteenth Amendment issues generally won't arise with prostitution unless a defendant can somehow prove that they are receiving different treatment than the other party. For example, if the prostitute were to be arrested and the john not, then the prostitute may be able to claim an equal protection violation. But even then, you won't have much success. And part of that reason is all of the other offenses that surround prostitution: pandering, solicitation, trafficking, etc. Pandering and solicitation are generally state matters but the transportation of one to commit a sexual act for money or Whatever, particularly when it crosses state lines implicates federal law.

Arguments for decriminalization have also failed under the First and Fourth Amendments.

But largely it's a state by state issue (see Nevada).

The notion that it's a federal regulatory issue doesn't hold up because Congress has successfully claimed the right to regulate illegal activities such as bookmaking and sale of illegal drugs. So Congress can regulate whatever it feels like.

As to the question of feminist points of view, they're actually pretty varied.. Some conceive of prostitutes as wage laborers who perform a service in exchange for a payment. They argue that legalization or decriminalization of this exchange would not only protect sex workers but also legitimize economic opportunities for women.

Others take the opposite view, construing prostitution as violence against women, violating female sexual autonomy by reducing it to economic exchange. They argue that women do not choose to become sex workers; rather, socio-economic circumstances unduly influence their choice to engage in prostitution.

There is also the more practical argument of preventing the spread of disease and the attendant crimes of prostitution (again, pandering, solicitation, etc.).

But maybe most importantly, the people seem to want it to be illegal. Berkeley, California, a bastion of liberalism in the U.S. put two measures in four years on the ballot to either reduce prostitution to a negligible offense or legalize it outright. Both failed.

So despite what seems to me and most others on this board to be an overwhelmingly obvious thing--that it should be legal primarily because it's no one else's fucking business and the regulation would prevent disease and collect revenue, a clear majority of voters do not. The chances are that if voters of a state were to legalize it, the federal government likely would leave it alone as they have in Nevada.

But until then, it's a criminal act.

 

[Derec]

Fourteenth Amendment issues generally won't arise with prostitution unless a defendant can somehow prove that they are receiving different treatment than the other party. For example, if the prostitute were to be arrested and the john not, then the prostitute may be able to claim an equal protection violation.

Or if something like the sexist Swedish model were to be adopted?

But even then, you won't have much success. And part of that reason is all of the other offenses that surround prostitution: pandering, solicitation, trafficking, etc. Pandering and solicitation are generally state matters but the transportation of one to commit a sexual act for money or Whatever, particularly when it crosses state lines implicates federal law.

A federal law that should be repealed. But both state and federal laws are subject to constitutional challenges so that would not matter.

Arguments for decriminalization have also failed under the First and Fourth Amendments.

More due to ideology (unholy alliance between the religious right and feminist left) than law.

But largely it's a state by state issue (see Nevada).

So was abortion before Roe and sodomy before Lawrence. Both relied on right to privacy.

Others take the opposite view, construing prostitution as violence against women, violating female sexual autonomy by reducing it to economic exchange. They argue that women do not choose to become sex workers; rather, socio-economic circumstances unduly influence their choice to engage in prostitution.

Socio-economic circumstances influence almost everybody to engage in any gainful employment. And many women definitely choose to enter and stay sex workers so the latter feminist position is patently false (which prompts them to argue that if a woman needs money she can't really have chosen sex work but somehow can choose any other work which is special pleading). Those that are forced into or to stay in prostitution should be given help to get out and those forcing them should be prosecuted harshly. However, there is involuntary servitude involving other industries (most notably farm work or domestic work), usually by immigrants, but that doesn't prompt people to call for these industries to be outlawed.

There is also the more practical argument of preventing the spread of disease and the attendant crimes of prostitution (again, pandering, solicitation, etc.).

True. If you legalize it you can control all these things. Nowadays street walking often occurs in residential areas but if legalized it can be either banned while legalizing other, more private ways to connect client and provider, or allow it in certain non-residentiareas and maybe construct privacy booths like these in Zurich.

Of course, Swiss wouln't be Swiss without clear rules:

\
Also, it's important to collect taxes in an efficient manner (this one in Bonn, Germany):

But maybe most importantly, the people seem to want it to be illegal.

One of the hallmarks of a liberal democracy is that rights of individuals are not always subject to majority vote (dictatorship of the majority). If porn were to be put on statewide ballots, how many states would ban it? How about if ban on Islam were to be put on a ballot, especially after an attack?

Berkeley, California, a bastion of liberalism in the U.S. put two measures in four years on the ballot to either reduce prostitution to a negligible offense or legalize it outright. Both failed.

Not surprising since Berkeley is a bastion of Leftism, not classical liberalism.

But until then, it's a criminal act.

So was sodomy until a "right to privacy" based SCOTUS ruling.

 

[Derec]

The issue still remains, in what way does privacy factor in? Sexual activity is considered private because it is considered personal. But once you make it a business, it loses its personal statis. Abortion is private because it is medical. But prostitution is not medical. So in what way can we make a privacy based argument in favor of prostitution?

I actually believe legalizing prostitution is a good idea. I just don't think privacy has anything to do with it.

If I go to a prostitute and have sex with her in her hotel room how is that not private? Why should exchange of money make it non-private?

 

[Derec]

I have a hard time figuring Derec. He seems to always play the MCP role and seems to be pushing to expand prostitution.....

What's an MCP? And I want to make it legal, which would help everybody involved, prostitutes, clients, the city itself.

It is almost as if he were saying no society can be really healthy without a significant prostitution factor in it.

How significant a factor it is should be determined by supply and demand, not threat of arrest and prosecution.

In many parts of the world it is just "sex work." Somehow those places (Thailand for example) are not really an improvement over our country.

The big problem with Thailand is that they do not do enough to stamp out child prostitution. So theirs a too hands off attitude.

- - - Updated - - -

Abortion is a medical procedure, and medicine is given a special treatment in privacy law. You'll have a hard time arguing that prostitution is a medical procedure.

Well it does concern the human body and it's basic functions.

Maybe next step after legalization is to get it on Obamacare

 

[Derec]

From what I read of the red light districts in the Netherlands, Amsterdam specifically, while legalizing prostitution made the job safer, it didn't make it less sleazier, nor did it stop illegal prostitution.

What do you consider "sleazy" and how do you quantify it? And making it safer is a good step. Not wasting time and money on trying to bust voluntary prostitutes and their clients with sting operations while collecting taxes is yet another benefit although those freed resources could be used to go after actual traffickers more.

So it's a tossup between proving legal, safe jobs, making another source of taxable income, while driving up bureaucracy costs and lowering property values around brothels while not really curbing the profession as a crime.

Even under your assessment it seems a quite clear net positive, although it could be improved.

- - - Updated - - -

I think that prostitution should be decriminalized and regulated. If a woman wishes to provide sexual intercourse as a paid service, it is her decision, her body, and her choice to make. That is why it should by decriminalized. Due to the abuses that historically have been suffered by women practicing prostitution, it needs to be well regulated. In rural counties in Nevada, it is already legal.

Is this the 7th sign of the Apocalypse?
Also "well regulated" to me implies that regulation should be the least necessary to achieve objectives of safety, prevention of coercion and health. Often regulation is misused as a vehicle to suppress an unwanted legal activity or well-meaning regulators overdo it. Both have the result of pushing part of the trade underground with all the negative consequences thereof.

 

[Jolly_Penguin]

I think the best argument for legalizing prostitution is the simple position that the onus is on those who want to ban it. What justification do they have? What they usually put forward is weak and falls apart at the slightest investigation.

 

[Jolly_Penguin]

I think all of those issues could be addressed in sensible legislation that would necessarily include financial aid to women (and gay men) to allow them to chose NOT to prostitute themselves because they have no other financial options.

I would have a fundamental problem with that if the same funding was not available to anybody in need, regardless of their potential to be suitable prostitutes. So this sort of financial aid should have nothing whatsoever to do with prostitution or its legalization.

I also note that prostitutes can make quite a lot of money, and it would take quite a lot of free money to keep many of them from it. Women getting pushed into prostitution has more to do drugs and abusive boyfriends/pimps than it does with making a living because no grocery store jobs are available. Also, the problem of women being pushed into prostitution (which is a real problem) is often overstated, sometimes to the point that people find it hard to believe that women enter the trade willingly and of their own accord. Many do. They should not be held back because of misguided and ineffective legislation.

A close friend of mine was involved in the Bedford litigation in Canada that overturned the old prostitution laws. They put women at risk, as most anti-prostitution laws do, and the new laws put in place this year by the Harper government are sadly no improvement, but at least the courts have ruled and it seems obvious that the new laws won't stand up to a charter challenge, so few police are enforcing the new laws.

 

[Derec]

none of those are "special rights" - they are only your twisted exaggerations to further your anti-women, anti-minority postings on this board.

How are they not?

More baseless twisted exaggerations on your part.

The automatic equation of sex workers with victims is at the core of feminist opposition to sex work and basis of draconian, authoritarian and sexist laws in places like Iceland and Sweden.

Had you limited yourself to saying "I do not think that ridiculous, extremist, misandrist forum needs to be given any respect whatsoever", I would have no objection whether I agreed with you or not.

Femifisting was a bastaridization of the name of a particular blog. Also it is from another thread and I don't know why you are dragging it in here.

It is your CONTINUOUS vile vicious disgusting language with regard to women and minorities. It is the CONSTANT use of words like "feminazi" and "thug" to refer to "women" and "black men".

I use feminazi to refer to radical feminists, not all women. I use thug to refer to, well, thugs, regardless of race and not to refer to all black men. It is you who is incapable of seeing nuance here.

Back to the topic,

Finally!

I happen to agree that prostitution should be legal (and highly regulated) and that "privacy" might be a valid avenue to argue for it. Unfortunately, due to your very very very long history on these boards of the very same vile disgusting anti-women, anti-minority language I just commented on, I can't take your advocacy for legalized prostitution as coming from a place of caring about the women.

Well I occasionally participate in sex work as a client, and have learned to like many of the women I encounter. I want them to be safe both from police and violent clients etc. I also want clients to be safe as well. You can think of me whatever you want, but I am not the monster you paint me as incessantly.

It is a FACT that too many women are forced into prostitution, and/or forced to stay prostitutes.

Indeed that's bad and should remain illegal of course. But we do not ban farm work because there is forced labor there. We do not ban domestic work because there have been instances of slavery there. So why should sex work be different?

It is a FACT that the sex worker trade is full of violence against women.

And vice versa - there is violence by sex workers against clients. But go after those people. Not against honesty sex workers and their honest clients.

It is a FACT that most prostitution is not actually truly "consensual". I think all of those issues could be addressed in sensible legislation that would necessarily include financial aid to women (and gay men) to allow them to chose NOT to prostitute themselves because they have no other financial options. Other civilized countries have done it. The U.S. could too.

I have to disagree with that a bit. I do not consider it non-consensual to take a job because one needs money. Are Walmart and McDonalds workers non-consensual because they only work there because they need the money? Workers should be given options, sure. But that doesn't make the options they take because they need money non-consensual.

The problem is not, in my opinion, liberals "in US these days opposes prostitution due to its alliance with radical feminism".

I think it is indeed a problem. The radical feminists think prostitutes are "victims" even if they freely choose their work and make good money.

The problem is people like you who want prostitution legalized, but ignore/deny/don't give a shit about the very real anti-women issues involved in the industry. And before you try to whine that the previous sentence was another attack on your character, it wasn't. It was an observation of your comments - starting with the OP - in this thread. It was all a bunch of frothing at the mouth about "radical feminists"; but not even a single observation of the horrors women do IN FACT experience in the sex worker trade with any ideas on how to protect women in this push for legalization.

Yes, it is an attack on my character. I have addressed these issues before. I fully think all people involved in sex work should be protected and legalization is the best way to do it.

 

[Bacillus anthracis]

...So was sodomy until a "right to privacy" based SCOTUS ruling.

I'm not necessarily disagreeing with you on anything. It was just a brief run-down on the state of things.

And you're absolutely right about the tyranny of the majority and Constitutional rights not being subject to popular opinion. But at the same time, popular sentiment and trends will play a role in judicial decisions. If you look back over the some of the more significant cases in Constitutional law history, you'll see that previous decisions get reversed when it's time has come (for lack of a better way to put it). That's not an argument for keeping certain laws in place until they're unpopular; just that it's a noticeable feature of Supreme Court decisions. Cases like interracial marriage, sodomy, same sex marriage, etc. have all had to wait until significant popular sentiment is able to play a role in influencing SCOTUS to reverse prior decisions.

It's also interesting that under every relevant Constitutional Amendment it's been shot down.

There's no good legal argument for the continued criminalization of prostitution. If we have a privacy interest in the freedom of our own person, and if that interest poses no measurable threat to society, then it must be legal. So the question then becomes this: does prostitution pose a threat to the safety of society? And again the question of disease arises. But there are simple answers to that question.

The crimes attendant with the practice often exist because the act is illegal. If the act was legal then those attendant crimes wouldn't exist unless there were license and inspection violations--or something along those lines. And there would be.

So I guess maybe a test would be Nevada. Are the attendant crimes of pandering and solicitation any less there because some areas have legalized prostitution?

I don't know. There a lot of factors to consider; accessibility to brothels for large portions of the population, different establishments for different levels of income to name just two. I would say that other countries could be used as examples but that shit just doesn't go over well in American courts.

It's an interesting topic from a legal standpoint.

 

[Keith&Co.]

Women pay abortion providers as well, and abortions are done in abortion clinics with signs and Yellow Pages ads (at the time of the ruling, more like websites now) and stuff.

Yet, right to privacy was still used to legalize it.

But you MIGHT notice that you cannot use 'right to privacy' to practice medicine. The State still controls who gets to cut into who and under what conditions. so not everything in the transaction is based on 'right to privacy.'

So why not prostitution (other than ideological bias)?

Your 'right to privacy' would probably cover your choice of who to fuck. Getting money for it is still a discrete function.

 

[bilby]

But you MIGHT notice that you cannot use 'right to privacy' to practice medicine. The State still controls who gets to cut into who and under what conditions. so not everything in the transaction is based on 'right to privacy.'

So why not prostitution (other than ideological bias)?

Your 'right to privacy' would probably cover your choice of who to fuck. Getting money for it is still a discrete function.

Interestingly, there is one circumstance where getting paid to have sex is legal in US jurisdictions other than Nevada, and it occurs when the idea of privacy is explicitly absent - the making of pornography.

Truly, American law makers are nuts.

 

[RavenSky]

I think all of those issues could be addressed in sensible legislation that would necessarily include financial aid to women (and gay men) to allow them to chose NOT to prostitute themselves because they have no other financial options.

I would have a fundamental problem with that if the same funding was not available to anybody in need, regardless of their potential to be suitable prostitutes. So this sort of financial aid should have nothing whatsoever to do with prostitution or its legalization.

I am not suggesting that there be some sort of anti-prostitution specifc welfare. I am suggesting that there needs to be an overall robust safety net such that people are not forced into prostitution out of desperation for money.

I also note that prostitutes can make quite a lot of money, and it would take quite a lot of free money to keep many of them from it.

And if someone chooses freely chooses a career as a prostitute because of the good pay, I have no objection. Those of us who advocate for a universal minimum income or similar do not suggest that said income must be at the highest level people aspire to make. It needs to be at the lowest level to live on to allow individuals the freedom to make the best long-term choices for themselves.

Women getting pushed into prostitution has more to do drugs and abusive boyfriends/pimps than it does with making a living because no grocery store jobs are available. Also, the problem of women being pushed into prostitution (which is a real problem) is often overstated, sometimes to the point that people find it hard to believe that women enter the trade willingly and of their own accord. Many do. They should not be held back because of misguided and ineffective legislation.

I have no disagreement with any of this, which is why I said I support a legalization system that will allow women who genuinely choose for themselves to enter the trade to do so in a safe, regulated manner while protecting other women from being forced into it by finances, drugs, abusive boyfriends/pimps, etc.

A close friend of mine was involved in the Bedford litigation in Canada that overturned the old prostitution laws. They put women at risk, as most anti-prostitution laws do, and the new laws put in place this year by the Harper government are sadly no improvement, but at least the courts have ruled and it seems obvious that the new laws won't stand up to a charter challenge, so few police are enforcing the new laws.

Can you expand on this, or provide some links to further information? I am interested to read more about it.

 

[RavenSky]

The problem is people like you who want prostitution legalized, but ignore/deny/don't give a shit about the very real anti-women issues involved in the industry. And before you try to whine that the previous sentence was another attack on your character, it wasn't. It was an observation of your comments - starting with the OP - in this thread. It was all a bunch of frothing at the mouth about "radical feminists"; but not even a single observation of the horrors women do IN FACT experience in the sex worker trade with any ideas on how to protect women in this push for legalization.

Yes, it is an attack on my character. I have addressed these issues before. I fully think all people involved in sex work should be protected and legalization is the best way to do it.

It was an "attack" on the CONTENT of your OP which did not in any way address protecting/supporting the prostitutes, but was instead an immediate spewing of vitriol against "liberals" and "feminists". And I don't care what thread your disgusting anti-woman, anti-minority language comes from because it is the long-standing pattern of your posts that I am addressing.

If you can't discuss your own topic without inserting your anti-women rhetoric, then I will keep pointing out your anti-women rhetoric to you while discussing the actual topic with others.

 

[AthenaAwakened]

What do you consider "sleazy" and how do you quantify it? And making it safer is a good step. Not wasting time and money on trying to bust voluntary prostitutes and their clients with sting operations while collecting taxes is yet another benefit although those freed resources could be used to go after actual traffickers more.

So it's a tossup between proving legal, safe jobs, making another source of taxable income, while driving up bureaucracy costs and lowering property values around brothels while not really curbing the profession as a crime.

Even under your assessment it seems a quite clear net positive, although it could be improved.

- - - Updated - - -

I think that prostitution should be decriminalized and regulated. If a woman wishes to provide sexual intercourse as a paid service, it is her decision, her body, and her choice to make. That is why it should by decriminalized. Due to the abuses that historically have been suffered by women practicing prostitution, it needs to be well regulated. In rural counties in Nevada, it is already legal.

Is this the 7th sign of the Apocalypse?
Also "well regulated" to me implies that regulation should be the least necessary to achieve objectives of safety, prevention of coercion and health. Often regulation is misused as a vehicle to suppress an unwanted legal activity or well-meaning regulators overdo it. Both have the result of pushing part of the trade underground with all the negative consequences thereof.

Derec, well-regulated means well regulated with the emphasis being on the protection of sex worker. And the possibility, even inevitability of illegal prostitution continuing is not reason to under-regulate or under enforce. If prostitution is to be decriminalized, it will happen under great scrutiny and with much regulation and taxation.

 

[RavenSky]

But you MIGHT notice that you cannot use 'right to privacy' to practice medicine. The State still controls who gets to cut into who and under what conditions. so not everything in the transaction is based on 'right to privacy.'

So why not prostitution (other than ideological bias)?

Your 'right to privacy' would probably cover your choice of who to fuck. Getting money for it is still a discrete function.

I think the comparison of recreational prostitution to medical abortion in terms of "right to privacy" is a poor one, but as someone noted earlier perhaps an argument could be made for medically prescribed sex-workers under the same medical privacy as a wedge, similar to medical marijuana.

In addition, what is the specific justification for outlawing recreational prostitution as a private business model? Regulated, yes, but there are very few voluntary business transactions that are outlawed. Probably the best legal argument would be on this point - free market

 

[Achwienichtig]

The issue still remains, in what way does privacy factor in? Sexual activity is considered private because it is considered personal. But once you make it a business, it loses its personal statis. Abortion is private because it is medical. But prostitution is not medical. So in what way can we make a privacy based argument in favor of prostitution?

I actually believe legalizing prostitution is a good idea. I just don't think privacy has anything to do with it.

If I go to a prostitute and have sex with her in her hotel room how is that not private? Why should exchange of money make it non-private?

If two people have sex in a hotel room, make a video of it, and post it on the internet, would you still call that "private" just because they did it in a hotel room? I doubt it.

Location is only one factor in privacy. Once you make something a business with a money exchange, then it will very likely fall under the commerce clause of the constitution, which means congress gets to decide if it's legal or not through the legislative process.

 

[Loren Pechtel]

I think the best argument for legalizing prostitution is the simple position that the onus is on those who want to ban it. What justification do they have? What they usually put forward is weak and falls apart at the slightest investigation.

Yup. I can see nothing that justifies the law banning it. Thus it should be legal.

 

[Bacillus anthracis]

But you MIGHT notice that you cannot use 'right to privacy' to practice medicine. The State still controls who gets to cut into who and under what conditions. so not everything in the transaction is based on 'right to privacy.' Your 'right to privacy' would probably cover your choice of who to fuck. Getting money for it is still a discrete function.

Interestingly, there is one circumstance where getting paid to have sex is legal in US jurisdictions other than Nevada, and it occurs when the idea of privacy is explicitly absent - the making of pornography.

Truly, American law makers are nuts.

Here's the gist:

Requisite to the crime of prostitution is the existence of a customer. And because none of the actors in an adult film are customers, but instead paid actors, no prostitution is involved and therefore no procurement for purposes of prostitution and no pandering. Whether or not prostitution must always involve a customer, it is clear that in order to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification. That is, none of the actors are paying to be in the film and the acts in the film are not interpreted by the courts to be for the purpose of sexual gratification of the actors. Rather, they are all being paid for the purpose of making a film, and adult films are protected speech/expression under the First Amendment.

Further, because sexual acts between adults are not considered obscene, an adult film is not obscene.

And if you want to jump down any nation's throat, the U.K. recently either passed or tried to pass laws against adult films on the notion that any film whose sole purpose is to get someone horny, is obscene.

 

[Crazy Eddie]

As so often you ask a question and then answer it in the very next sentence. The "radical feminism" involved is the idea that prostitutes are the victims of prostitution. You would have to change this perception before you could legalize prostitution.

I doubt very much the perceptions of radical feminists can be changed

It's not radical feminists that hold this perception. In fact, most feminists I deal with on a regular basis generally believe that legalization -- maybe even with regulation -- would make things better and safer for prostitutes and for their potential customers: it would give police more opportunities to crack down on pimping, it would give prostitutes better access to healthcare and better able to mitigate the risks of their work and it would help protect customers from the risk of STDs.

The idea that prostitutes are victims of prostitution is actually a conservative idea rooted in the notion that women who engage in it are sexual deviants and something happened that made them that way. As to why this translates into jail time instead of, say, mandatory psychiatric care, I can't begin to speculate, except that this is one of those things conservatives don't really bother to think about and so the fact that the laws make no sense is probably well below their collective radars.

 

[bilby]

Interestingly, there is one circumstance where getting paid to have sex is legal in US jurisdictions other than Nevada, and it occurs when the idea of privacy is explicitly absent - the making of pornography.

Truly, American law makers are nuts.

Here's the gist:

Requisite to the crime of prostitution is the existence of a customer. And because none of the actors in an adult film are customers, but instead paid actors, no prostitution is involved and therefore no procurement for purposes of prostitution and no pandering. Whether or not prostitution must always involve a customer, it is clear that in order to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification. That is, none of the actors are paying to be in the film and the acts in the film are not interpreted by the courts to be for the purpose of sexual gratification of the actors. Rather, they are all being paid for the purpose of making a film, and adult films are protected speech/expression under the First Amendment.

Further, because sexual acts between adults are not considered obscene, an adult film is not obscene.

And if you want to jump down any nation's throat, the U.K. recently either passed or tried to pass laws against adult films on the notion that any film whose sole purpose is to get someone horny, is obscene.

My apologies if I gave the wrong impression; I wasn't seeking to imply that American lawmakers had a monopoly on being nuts.