The Decriminalization of Prostitution and the Commodification of Sex

close-up photograph of red signal light
"Red Light" by Karoly Lorentey is licensed under CC BY 2.0 (via Flickr)

Democratic lawmakers in New York State have moved to decriminalize sex work, making it legal to engage in the consensual sale of sex. Massachusetts, Maine, and other states have similar laws already in force, but the New York bill will release those in prison for acts that are no longer illegal as well.  

Practically speaking, making sex work illegal has not created safe environments for many people living in the US. When an activity is illegal, it pressures the participants into anonymity and makes it harder for them to receive care and support when harm results from participating in the activity. For sex work, this can mean theft, sexual assault, harassment, exploitation, rape, and worse.

For example, rape and gonorrhea dropped significantly in Rhode Island in the decade following decriminalization of indoor prostitution (as a journalist for Vox reported in 2015: “there was a 31 percent decrease in rape offenses and 39 percent fewer cases of female gonorrhea — and no extraordinary drop in other kinds of crime, suggesting the reduction in rape offenses was not representative of a broader crime drop or better policing across the board.”

Opponents of decriminalization generally object on the basis of the moral standing of sex work, claiming sex work can be categorized as exploitation or commodification.

To argue that sex work is exploitative, one has to establish that it takes advantage of a vulnerability that should be protected, or *not* taken advantage of. This argument points to empirical trends of who engages in sex work (typically members of disadvantaged groups) and the rate of unfortunate side effects or corollaries of engaging in sex work (typically the harms listed above). This line of argument suggests that people ought to be protected from engaging in sex work similarly to how we should be protected from other unfortunate work environments – “sweat shops”, etc.

However, advocates for decriminalizing sex work point out that many people choose to engage with the variety of jobs that qualify as sex work. Further, the risk and negative correlations are greatly reduced when the threat of being subject to the criminal justice system is removed through decriminalization, as the Rhode Island example suggests. Further, this argument can be interpreted as stripping sex workers of their agency, characterizing sex workers in a way that undermines their ability to make their own choices about what to do with their bodies.

Some take issue with sex work even while conceiving of sex workers as free and autonomous people in control of their decisions. The concern here is that sex is not the sort of thing that should be a job or for sale. In short, sex work commodifies something of moral value.

Commodification refers to the moral wrong involved with treating something only in the domain of marketplace norms. In other words, the standards for how something should be treated become understood economically, which is inappropriate given the nature of the object. When we engage with products, it is typically appropriate to treat them as commodities: Norms of the marketplace are maximization norms. The economic marketplace is competitive and if you can get a good deal on something that benefits you, that is not only permissible but the system supports it. If I have a book and am willing to sell it for a certain price, but someone offers me much more for it, according to the norms that constitute the economic domain I get to take that better offer and benefit myself. If I choose to let them know they can save some cash and let them have it for the price I originally envision, I’m being a nice person, surely, acting beneficently. But no economic standards demand this as long as parties act freely and consensually.

A prime example of commodification is slavery – where human beings are treated as products on the marketplace. Clearly there are more norms than economic that apply to how we should treat people. Thus, even if there are willing parties on both ends of an economic transaction, it is not right to buy or sell a person.

Recently in bioethics more complicated questions related to commodification have become relevant. When having a child with a surrogate, parents exchange money for the surrogate mothers’ services. The pregnancy is something that a person can provide in exchange for money, and thus using a person’s body in a sense is treated as a commodity in the market. In New Jersey, surrogacy agreements where the surrogate is compensated are illegal, and in 27 countries compensated surrogacy is illegal (the legal standing of “altruistic surrogacy” varies). Similarly, exchanging money for organs, like kidneys, is criticized as objectionable commodification. The values associated with the human body and medicine, say some, extend beyond the free exchange of goods and services in an economic market.   

To restate, what’s happening with commodification is that you are using norms (namely, marketplace norms) that are inappropriate for the circumstances (typically because they are insufficient, there are more principles or standards that you ought to be governed by than the rather austere marketplace norms). Marketplace norms say that what you ought to do is get as much as you can for yourself. You pursue your own best interests, and as long as the other party consents, you get to exact benefits. Commodification happens when the value of a good or service is reduced to its mere economic worth despite its greater social significance. For example, you shouldn’t approach family interactions using only marketplace norms – there are additional (moral usually) norms you should attend to. There is something of value missing or being disrespected if the only reason families interact is for goods and services exchanged ($20 for showing up to Sunday dinner, if not supported by some kind of relationship, begins to look less like a family relationship for these sorts of reasons).

To take a biomedical example, the doctor-patient relationship comes with extra norms and rules beyond those established by the marketplace. There are often extra protections and responsibilities that come with inhabiting a particular role that means that it would be wrong to treat a patient as merely a person in an economic exchange. There is something going wrong, we think, if a doctor barters with a patient over the cost of revealing lab results, for instance. The nature of the relationship should be based on providing care, which supersedes the doctor’s economic standing as seeking financial benefit.

When critics of bills that decriminalize sex work take moral issue with buying and selling sex, often it is in these terms. Sexual relationships, one could say, should not be solely subject to norms of economics. However, it’s hard to ignore the fact that sexuality is intricately, intimately, and inextricably involved in the economy. Also, workers use their bodies to earn a living in myriad ways that don’t raise a commodification objection – consider manual labor.

Whether opponents consider sex work to be exploitative or commodifying, attending to the wishes of those who actually occupy the professions and respecting their autonomy is an important ethical imperative. In addition to this, the empirical evidence that negative correlations of sex work dramatically reduce when decriminalization occurs have important implications if finding a sensible way forward.

Meredith is an Assistant Professor at the University of Wisconsin, Whitewater. She earned her PhD at the University of California, Riverside, with a research focus in Philosophy of Action and Practical Reasoning and continues to explore the relationship between reason and value. Her current research consists of investigating modes of agential endorsement: how an agent's understanding of what is good, what is reasonable, what she desires, and who she is, informs what she does. Meredith is also committed to public philosophy and applied ethics; in particular, she is invested in illuminating debates in biomedical ethics, ethics of technology, and philosophy of law. Her website can be found at: https://mermcfadden.wixsite.com/philosopher.