Explore Freedom

Explore Freedom » The Absurdity of Laws against Prostitution

FFF Articles

The Absurdity of Laws against Prostitution

by

Aside from voting for candidates for federal, state, and local offices, residents of California recently had the option of voting on a most unusual measure on their election ballots. There were seventeen initiatives on the general election ballot in California this year. Proposition 60, the Condoms in Pornographic Films Initiative, would have required “adult film producers to provide condoms and ensure that performers use them.”

It failed by a vote of 53.94 to 46.06 percent.

California is a leading producer of pornographic films in the United States. The California Division of Occupational Safety and Health (Cal/OSHA) already requires condom use during sex in pornographic films, but “generally enforces these rules by responding to complaints.” During the last two years, Cal/OSHA has cited only four production companies for violations of the condom rules. Moreover, in 2012, the Los Angeles City Council passed an ordinance that mandated the use of condoms by pornography actors on location. Los Angeles County voters then approved Measure B, which required pornography actors to wear condoms on set throughout the county, producers of adult films to pay an annual fee to the county’s Department of Public Health, and all principals and management-level employees of adult-entertainment-producing companies to undergo blood-borne pathogen training.

The official ballot summary of Proposition 60 prepared by the California attorney general reads as follows:

  • Requires performers in adult films to use condoms during filming of sexual intercourse.
  • Requires producers of adult films to pay for performer vaccinations, testing, and medical examinations related to sexually transmitted infections.
  • Requires producers of adult films to obtain a state health license, and to post condom requirement at film sites.
  • Imposes liability on producers for violations, on certain distributors, on performers if they have a financial interest in the film involved, and on talent agents who knowingly refer performers to noncomplying producers.
  • Permits state, performers, or any state resident to enforce violations.

This summary of Proposition 60 was “identical to the initial summary provided to initiative proponents for the purpose of circulating the initiative for signature collection.”

The accompanying fiscal-impact statement expected that the passage of Proposition 60 would result in the

  • likely reduction of state and local tax revenues of several million dollars per year; and
  • increased state costs that could exceed $1 million annually to license and regulate adult-film production and to enforce workplace health and safety rules. The costs would be offset to some extent by new fee revenue.

The summary that appeared on the ballot to be read by California voters was as follows:

Requires adult film performers to use condoms during filming of sexual intercourse. Requires producers to pay for performer vaccinations, testing, and medical examinations. Requires producers to post condom requirement at film sites. Fiscal Impact: Likely reduction of state and local tax revenues of several million dollars annually. Increased state spending that could exceed $1 million annually on regulation, partially offset by new fees.

Spending in support of Proposition 60 by For Adult Industry Responsibility (FAIR), all of which was donated by the AIDS Healthcare Foundation, was more than nine times that spent by opponents of the initiative, organized as the Coalition Against Worker Harassment.

Naturally, the adult-film industry vehemently opposed the measure. But both the California Democratic and Republican parties opposed it as well.

Clearly, from a libertarian perspective, it is an illegitimate purpose of government to regulate the production of adult films or any other films. The use of condoms — or any other protective clothing, equipment, or devices — in the workplace is something to be negotiated between employers and employees. It should be out of the reach of government.

So what do laws requiring performers in adult films to wear condoms have to do with laws against prostitution?

Simple: How can engaging in sex for money be legal in the first instance but illegal in the second? How can the presence of lights, a camera, and a film crew turn an illegal act into a legal one?

To be logical and consistent, it seems abundantly clear that if prostitution should be outlawed, then so should the making of adult films, since both activities involve paying people to engage in sex acts. And even more so in the case of adult films, since acts of prostitution are done privately and in secret, while adult films are made in front of a crew and meant for public viewing by hundreds, if not thousands, of people. Yet most Americans who are not in favor of the government’s outlawing pornographic movies or massage parlors are at the same time in favor of the government’s outlawing prostitution.

There is, of course, one other glaring reason that laws against prostitution are so absurd. How can something that is legal to give away be illegal if one charges for it? If it is legal for consenting adults to have sex as often as they want and with as many different partners as they want, then why should it be illegal if one of the parties pays the other for it? Why does the introduction of money turn sex into a criminal offense? Again, most Americans who are not in favor of the government’s outlawing fornication, adultery, cohabitation, communal living, and swinging are at the same time in favor of the government’s outlawing prostitution.

Aside from those two considerations, the libertarian case against prostitution laws is straightforward.

It is not the job of government to concern itself with how people choose to make a living. There is a big difference between not approving of someone’s actions and thinking the government should arrest, fine, and imprison people for doing something people don’t approve of.

What consenting adults do on private property is none of the government’s business as long as their actions don’t infringe upon the rights of others. That is still true even if the majority of Americans don’t approve of what they are doing.

Every crime needs a tangible victim with measurable damages. It is absurd to criminalize one party or both parties who engage in peaceful, private, voluntary, consensual activity.

Now, none of that means that libertarians favor prostitution or want their wives, sisters, or daughters to be prostitutes. None of this means that libertarians think that prostitution is not immoral, sinful, risky, or hazardous to one’s physical health. None of it means that libertarians are ignorant of or ambivalent toward the plight of women who feel they are trapped in a life of prostitution. None of it means that libertarians don’t support laws against kidnapping, human trafficking, slavery, rape, assault, child prostitution, or sexual abuse. None of it means that libertarians support trespassing, loitering, or other violations of property rights that might occur when prostitutes seek or service customers.

No, libertarians aren’t fans of prostitution any more than they are fans of drug use, gambling, fornication, pornography, and other vices, but they are fans of freedom — the freedom of consenting adults to do anything that’s peaceful as long as their actions are voluntary, don’t aggress against others, and respect private property rights.

  • Categories