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When it comes to prostitution, let freedom be the last word

Deanna Forbush
Deanna Forbush

In a column in the The Nevada Independent, attorney Jason Guinasso recently wrote, “Buying human beings for sex, legally or illegally, is a violation of human rights and degrades human dignity.” However, prostitution doesn’t mean ownership of a human being is being transferred. It is simply the case, as former-UNLV professor and economist Murray Rothbard wrote, “If labor and persons in general are to be free, then so should there be freedom for prostitution. Prostitution is a voluntary sale of a labor service.” 

With respect to one's own body, common law, which has long been the primary basis for property rights, has provided a set of protections that have the effect of granting certain property rights in one's own body, though the law never speaks of these rights as property. Tort law protects us from nonconsensual physical contact and physical invasions of our bodies. 

As the Legal Information Institute explains, “Torts fall into three general categories: intentional torts (e.g., intentionally hitting a person); negligent torts (e.g., causing an accident by failing to obey traffic laws); and strict liability torts (e.g., liability for making and selling defective products — see products liability).” Tort law, by definition, illustrates that humans have property rights to their own bodies.    

In turn, even beyond man-made law, John Locke believed property rights were natural rights because ownership is the only way to sustain oneself.

Further, legal scholar N. Stephan Kinsella writes, “After all, although self-ownership is more fundamental than rights in external resources — one must own oneself in order to own other things — self-ownership is rendered meaningless if the right to own private property is not also respected. This is why Rothbard insisted that all "human rights" are property rights — ownership rights in scarce resources, whether self-ownership rights in one's body or property rights in external objects.”

Economist, philosopher and former-UNLV professor Hans-Hermann Hoppe wrote in 1985,

The answer to the question what makes my body "mine" lies in the obvious fact that this is not merely an assertion but that, for everyone to see, this is indeed the case. Why do we say "this is my body"? For this a twofold requirement exists. On the one hand it must be the case that the body called "mine" must indeed (in an intersubjectively ascertainable way) express or "objectify" my will. Proof of this, as far as my body is concerned, is easy enough to demonstrate: When I announce that I will now lift my arm, turn my head, relax in my chair (or whatever else) and these announcements then become true (are fulfilled), then this shows that the body which does this has been indeed appropriated by my will.

Kinsella provides this illuminating observation, “The act of gaining full self-ownership rights may be regarded as a type of homesteading or appropriation of one's body — reaching adulthood, so to speak — so long as it is kept in mind that it is a special type of homesteading: not homesteading by a body-owner of an unowned (non-agent) resource, but the establishment of an objective link constituted by direct and immediate control of the body by a rational agent.” This is what distinguishes an adult from a child. 

In direct contradiction to “self-ownership” is involuntary servitude or forced labor, an act which denies the most elemental right of self-ownership. “Liberty” and “slavery” have ever been recognized to be polar opposites. 

Mr. Guinasso has equated prostitution with slavery. For this to be true, those working in Nevada’s brothels would have to voluntarily consent to being slaves. But, as Kinsella says, one cannot sell themselves into slavery. A person can only lose their right to self-ownership by committing an act of aggression and in turn being imprisoned.

In addition to his misunderstanding of property rights, Guinasso seems to forget that sex trafficking and slavery are already punishable under criminal law, which prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of oneself. If he truly cares about victims being trafficked, one would think he’d focus his firm’s resources in the area of criminal law.    

Sex trafficking vs. religious trafficking 

Abigail Hall-Blanco, Ph.D. explains, “[C]riminalizing prostitution makes sex trafficking more likely. One widely recognized consequence of prohibition is the formation of cartels, which in a black market are more likely to use violence. This violence drives some producers out of the market, leading to higher prices and large criminal enterprises with monopoly power. Instead of breaking apart sex-trafficking rings, prohibition increases their profitability, making trafficking more appealing to criminal enterprises…

After legalizing prostitution in 2003, New Zealand found ‘no incidence of human trafficking.’ Moreover, legalization made it easier for sex workers to report abuse and for police to prosecute sex crimes.”

Guinasso references studies that show legal prostitution attracts illegal prostitution. To the contrary, Rothbard made the point, “The outlawing of brothels has forced prostitution into a ‘black-market,’ fly-by-night existence, with all the dangers and general decline in quality this always entails.” He then provides an illuminating analogy: “To outlaw trades that may attract crime, however, would in the same way justify prohibition because many fights take place in bars.” 

Guinasso has stated on Pilgrim Radio that the state of Nevada and the county governments where prostitution is legal are “traffickers and de facto pimps.” He equated the taxes paid by legal brothels as “the blood money Judas took to crucify our Lord.”

Catholic theologians viewed prostitution differently, however. Historian Vincent Dever writes in Essays in Medieval Studies, 

…it would seem obvious that Aquinas would want to engage every force against them, especially civil law. Oddly enough he does not. Instead he notes that the state should allow fornication and prostitution to exist for the sake of the common good. Relying on the well-known passage from Augustine's De ordine, Aquinas advocates tolerance of prostitution by noting: "Accordingly in human government also, those who are in authority rightly tolerate certain evils, lest certain goods be lost, or certain evils be incurred: thus Augustine says [De ordine 2.4]: 'If you do away with harlots, the world will be convulsed with lust.'" If these social practices were to be suppressed, the public reaction might be such as to threaten the peace of society.

Thomas Aquinas believed society cannot prescribe "all acts of virtue." Dever writes, “Aquinas asserts, then, that human law cannot ‘exact perfect virtue from man, for such virtue belongs to few and cannot be found in so great a number of people as human law has to direct.’”

Guinasso’s crusade and his likening prostitution to slavery, then, is ironic. Permitting ownership of another human’s body and prohibiting a person who owns their body from doing with it what they will are merely two sides of the same coin. Lost on him and those who agree with him is the strange symmetry between “you must do X labor because I own your body” and “you cannot do Y with your body because I/the state can control it.”

Both erase human agency.

Deanna Forbush is a partner at Fox Rothschild and business litigator who advises clients on general corporate and financing issues, as well as labor and employment law. She also was appointed by the Nevada Supreme Court to Nevada's Blue Ribbon Article 6 Commission, a group formed to study all aspects of the Nevada judiciary.


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