Dankprofessor’s Weblog

A weblog examining sexual politics in higher education and beyond.

U of Chicago law and ethics prof Martha Nussbaum speaks out on prostitution and the Spitzer case

University of Chicago Law Professor Martha Nussbaum has published an interesting essay on societal attitudes toward prostitution and the Spitzer case. A succinct version of the essay appears below. The dankprofessor’s only quibble with Nussbaum is that she fails to recognize that many people, including myself, feel that the Spitzer resignation was appropriate since Spitzer was a zealous advocate of law reform in which the client or john is penalized for partaking in acts of prostitution. I call this dishonest, hypocritical and unethical. This is almost equivalent to “our” president Bush pre-election commitment to not taking part in overseas nation building. Of course, the dankprofessor would like to welcome Bush’s resignation, but would not look forward to welcoming Cheney as the “new” president.

Trading on America’s puritanical streak  Prostitution laws mean-spirited, penalize women

By Martha Nussbaum

Eliot Spitzer, one of the nation’s most gifted and dedicated
politicians, was hounded into resignation by a Puritanism and
mean-spiritedness that are quintessentially American.

My European colleagues (I write from an academic conference in
Belgium) have a hard time understanding what happened, but they know
that it is one of those things that could only happen in America,
where the topic of sex drives otherwise reasonable people insane. In
Germany and the Netherlands, prostitution is legal and regulated by
public health authorities. A man who did what Spitzer did would have a
lot to discuss with his wife and family, but he would have broken no
laws, and it would be laughable to accuse him of a betrayal of the
public trust. This is as it should be. If Spitzer broke any laws, they
were bad laws, laws that should never have existed.

Why are there laws against prostitution? All of us, with the exception
of the independently wealthy and the unemployed, take money for the
use of our body. Professors, factory workers, opera singers, sex
workers, doctors, legislators – all do things with parts of their
bodies for which others offer them a fee. Some people get good wages
and some do not; some have a relatively high degree of control over
their working conditions and some have little control; some have many
employment options and some have very few. And some are socially
stigmatized and some are not. However, the difference between the sex
worker and the professor – who takes money for the use of a
particularly intimate part of her body, namely her mind – is not the
difference between a “good woman” and a “bad woman.” It is, usually,
the difference between a prosperous well-educated woman and a poor
woman with few employment options.

The sliding stigma scale

Many types of bodily wage labor used to be socially stigmatized. In
the Middle Ages it was widely thought base to take money for the use
of one’s scholarly services. Adam Smith, in “The Wealth of Nations,”
tells us there are “some very agreeable and beautiful talents” that
are admirable so long as no pay is taken for them, “but of which the
exercise for the sake of gain is considered, whether from reason or
prejudice, as a sort of publick prostitution.” For this reason, he
continues, opera singers, actors and dancers must be paid an
“exorbitant” wage, to compensate them for the stigma involved in using
their talents “as the means of subsistence.” His discussion is
revealing for what it shows us about stigma. Today few professions are
more honored than that of opera singer; and yet only 200 years ago,
that public use of one’s body for pay was taken to be a kind of
prostitution.

Some of the stigma attached to opera singers was a general stigma
about wage labor. Wealthy elites have always preferred genteel
amateurism. But the fact that passion was being expressed publicly
with the body – particularly the female body – made singers, dancers
and actors nonrespectable in polite society until very recently. Now
they are respectable, but women who take money for sexual services are
still thought to be doing something that is not only nonrespectable
but so bad that it should remain illegal.

What should really trouble us about sex work? That it is sex that
these women do, with many customers, should not in and of itself
trouble us, from the point of view of legality, even if we personally
don’t share the woman’s values. Nonetheless, it is this one fact that
still-Puritan America finds utterly intolerable. (Note, however, that
we no longer allow a woman’s sexual history to be used in a rape trial
because we know that the fact that a woman may have had sex with many
men does not mean that she has become a debased character who cannot
be raped.)

Exploitation the sordid part

What should trouble us are things like this: The working conditions
for most women in sex work are extremely unhealthy. They are exploited
by pimps, and they enjoy little control over which clients they will
accept. Police harass them and extort sexual favors from them. Some of
these bad features (unhealthiness, little control) sex work shares
with other job options for low-income women, such as factory work of
many kinds. Other bad features (police extortion) are the natural
result of illegality itself.

In general we should be worried about poverty and lack of education.
We should be worried that women have too few decent employment options
and too little health and safety regulation in those that they do
have. And we should be worried if men force women to do things
sexually that they do not want to do. All these things are worth
worrying about, and it is these things that sensible nations do worry
about. But the idea that we ought to penalize women with few choices
by removing one of the ones they do have is grotesque, the
unmistakable fruit of the all-too-American thought that women who
choose to have sex with many men are tainted, vile things who must be
punished.

Spitzer’s offense was an offense against his family. It was not an
offense against the public. If he broke any laws, these are laws that
never should have existed and that have been repudiated by sensible
nations. The hue and cry that has ruined one of the nation’s most
committed political careers shows our country to itself in a very ugly
light.

• Martha Nussbaum is a professor of law and ethics at the University of Chicago.

—–
If you wish, you can write to me directly at dankprofessor@msn.com
Guest commentaries should also be submitted for consideration
to the same email address.

Barry M. Dank aka the dankprofessorTM
© Copyright 2008

March 19, 2008 - Posted by | consensual relationships, ethics, prostitution, sex, sex workers, sexual policing, sexual politics, sexual rights

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