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Can anyone make a reasonable case why prostitution should be illegal while pornography is legal? It seems strange to me that it should be OK to pay for sex as long as you PROMISE that it will be filmed and sold to others.

I'm sure a lot of people on here agree that sex work should be legal; I just wanted to see if anyone had any explanation for this.

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    @Keelan Well yes, essentially, from the perspective of the actress/sex worker. What do you see as the constitutive difference? – Eric Auld Aug 9 '15 at 19:34
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    Prostitution is often not voluntarily. Also, in pornography both parties agree to work together. They both get paid. In prostitution, the prostitute cannot choose with whom she has sex, and the other doesn't get paid but has to pay. – Keelan Aug 9 '15 at 19:36
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    Why should prostitution be less voluntary than pornography? By prostitution I mean simply the act of exchanging sex acts for money. No presumption of a pimp/prostitute structure. And why could someone not choose with whom he/she transacts? – Eric Auld Aug 9 '15 at 20:01
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    That is indeed one of the reasons why prostitution is illegal in some countries, as I understand the debate. – Keelan Aug 9 '15 at 20:09
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    actually, Eric, i get your point and dunno fer sure how to answer. i'm pretty liberal and somewhat libertarian but if prostitution was legalized to the extent that it is in Nevada (hookers get business permits), i would be afraid what it might do to societal norms we all are exposed to. somehow, it seems to me that the consumption of porn is less visible than the consumption of sex on the street. i guess it ain't. – robert bristow-johnson Aug 10 '15 at 4:25
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Arguing such cases is not trivial. Both sides are often vehemently opposed to the other side of the logic. I don't think I can get away with holding such a debate in this format (SE is not designed for it).

However, I would like to draw an analogy. The analogy is from electrical engineering and amplifiers. I leave it to you to decide whether such an analogy is well drawn from your question, but I find it has several ways in which it could be connected, so I find it useful to offer.

Amplifiers are usually built with transistors. Here is a graph of the behavior of a transistor (technically a FET, but this is analogy so that detail will not matter). I will ignore many details, but the details which will matter are:

  • Vds is the input to the system
  • Id is the output from the system
  • There is an "Ohmic region" which is rather linear looking
  • There is a "Saturation Region" which is mostly flat
  • There is a "Breakdown Region" which is very abrupt.

Example FET curve

Now, if I want to amplify a signal using a transistor, I will build an amplifier which provides inputs within the Ohmic Region. The audio amplifier in your phone or stereo does this. The goal of such an amplifier is to maintain the characteristic of the sound by simply making it "bigger." Now, let us say there is a "lesser" input (which would correspond to the pornography of your original question) which fits nicely within this region. We actually have well understood rules for dealing with the consequences of this. By the analogy, the effect on both the viewer of pornography and the associated degradation of women fit within a region which can be simply thought of as "amplification." This tends to be thought of as a grey area in ethics: where something is considered bad, but can be balanced against other effects to determine if it is worth pushing back against, or if there are bigger fish to fry.

However, a larger signal can cross a line. A "greater" input (corresponding to prostitution) may leave this region and enter the saturation region. Any signal which enters this region behaves using different rules. Because the curve is so flat in that region, it is hard to tell the difference between 5V (perhaps a minor sex-for-cash enterprise) and 15V (a major heroin-abusing prostitution cartel) simply by observing the output. In electrical engineering, this change is from amplification to "switching." In a more social analogy, it means the system must treat this as a switch - you are either on the wrong side, or the right side. The grey areas which showed up in the Ohmic region is made invisible by the logic of this saturation region. This is where we see arguments like "you are with us, or you are against us."

Push further, and we reach breakdown points. At this point, all useful models start to fall apart. This is the point where you see people "putting their foot down," and allowing all sorts of atrocities in order to combat something. Most societies avoid this with prejudice, but we can see this in comic books, when a hero is told to "do whatever it takes" and goes very far down "the dark path" before arising victorious.

All of this is just a model. It does not have to be a valid challenge to your position. However, it is based on a very simple model:

  • At low "stress," the system has grey areas as it can create proportional control loops to keep things in check.
  • At mid level "stress," the system has to rely on clear right/wrong true/false boundaries as the saturation effects wipe out the grey areas.
  • At high level "stress," the system breaks down completely, allowing virtually any response to occur.

If you can consider such a model valid for the topic of this discussion, then there two very clear points on the model where it is natural that a mere increase in signal may cause the system's handling of the response to change dramatically. The open question for debate would be where those points are (and whether there are additional points to consider). However, from a historical perspective, our society has decided on where the line most likely is, and it is between pornography and prostitution. Perhaps it is not the best place to put the line, but it is the best decision society has been able to make to date.

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    Your point is that a difference in degree can cause a structural change. – Eric Auld Aug 9 '15 at 20:00
  • @EricAuld Yes, thank you for summing up a long position in a sentence ;) (When given such open ended topics, I am known for trying to cover too many bases, and making the position too long! It's a hard to break habit as a modeler) – Cort Ammon Aug 9 '15 at 20:05
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    I agree with your general point. In this case, it seems to me that if anything, pornography is an increase in degree from prostitution. – Eric Auld Aug 9 '15 at 20:06
  • boy, i read through this several times. i am also an EE and i understand the transistor curve thing well and had for 4 decades. but i cannot see even the thinnest connection an FET or a BJT has with the issues of prostitution, pornography, sex, morality, legal theory. they're just not related (other than that there are a lotta transistors in my computer and computers are often used to view porn), not even enough for a comparative illustration. is the "good/bad and what's in-between" dichotomy similar to the different regions of a volt-amp curve? it's not a very compelling analogy. – robert bristow-johnson Aug 10 '15 at 4:15
  • @robertbristow-johnson The analogy applies when those regions can be meaningfully applied to a problem. Many people do not see such regions when it comes to topics such as morality, so they may not see an analogy at all. – Cort Ammon Aug 10 '15 at 5:23
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Prostitution should be illegal because we as a society aren't mature enough to handle it yet.

The line between prostitution and pornography is super thin. Paying for sex can still be legal pornography if you have a camera and a tiny measure of directing. (Yes, people can pay to have sex with porn stars in films, and it is legal.)

We're lucky that pornography is legal, but only because it falls under free speech protection. In the US, porn having actors and being linked to expression was enough for pornography to be legal. This is a legal loophole for prostitution since we all know the end result of prostitution and watching porn is sexual gratification.

There are women's issues in the making of pornography too, so that is not much difference between pornography and prostitution. Human trafficking, violence, pimping, all applies to pornography. But definitely less gender issues when you look at men (particularly gay) in male prostitution and gay pornography. In Canada, many of these issues were thought about in pornography, and it was decided that the benefits of free expression outweighs potential problems. So again, pornography becomes legal only by that legal loophole.

So let's just look at gay male prostitution, because that highlights another aspect that people ignore. Should gay male prostitution be legal? Are we afraid if gays have paid sex, it will result in the destruction of the moral fabric of our society? We don't seem to talk much about male rights, so it's definitely not for human rights. Are we banning gay male prostitutes for their own safety? Currently, gay prostitutes do not get any measure of protection from the law, the last thing they want to do is call the cops if they need help. So making gay male prostitution is definitely not for their safety.

Does prostitution have some major impact on society that pornography doesn't? We can see that prostitution is legal in many countries like Germany, UK, and many European Union countries. I have yet to find a single article saying that legalization of prostitution has sent any of those countries to doom. One example: New Zealand recently made prostitution entirely legal in 2003. We're still making Hobbit films there, so obviously that country isn't that bad off.

Who are actually against legalizing prostitution? It's the same people who were against legalizing pornography: feminists, churches, celebrities. Who are the people with arguments for decriminalizing prostitution? It's respected organizations like Canadian AIDs Society, U.N. Human Rights Council, and Amnesty International.

Given that we know legal status of prostitution isn't about women's rights, safety of sex workers, nor about societal impacts. We can conclude that we're just not ready for prostitution yet. Like the abolition of slavery, it takes time for people to get their heads around an idea. And that's why prostitution is illegal when pornography is not.

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    While this is an interesting overview of the history and law, there's not much philosophy in here. You may want to look at our help center to figure out the sort of answers we are looking for here. – virmaior Aug 11 '15 at 0:45
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    Ah, you are very correct. I read the help center and law is not part of this site. I got caught up in answering the question, which was worded to be about legality. Perhaps the question should be reworded from "Explain why prostitution is illegal when pornography is legal." into "Explain why prostitution is immoral but pornography is ethical.". – James Aug 11 '15 at 20:30
  • As far a legality (in the USA) goes, I'm pretty sure it is the expressive nature of making a movie that makes pornography legal, as free speech; If this legal protection of free speech reflects a moral truth (i.e. that freedom of expression is a true moral good), that could provide an ethical wedge between "artistic" pornography, and non-expressive prostitution. – Dave Aug 12 '15 at 13:12
  • What is "artistic" is in the eye of the beholder. While I understand that some pornography can be considered artistic, just like anything in the medium of film. Anything in using the medium of the human body could also be considered artistic, such as dances by the female pole dancer. Why not take it a bit further to include the lap dancer? Why not one step further to the female prostitute? Sadly, my limited understanding of free speech says art is not free speech. Dave, if you have better understanding of free speech law, then I encourage you to write an answer with that train of thought. – James Aug 17 '15 at 18:17
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Basically your post, taken at face value, consists of two question. The first one

Can anyone make a reasonable case why prostitution should be illegal while pornography is legal?

is similar to what gets posted on Reddit's “Change My View” – but guess what, some views are just flat out flawed, wrong, absurd, fatally inconsistent. It has no value to concoct a pseudo-reasonable case for such views.

If we look at the current US (excluding Nevada) legislation:

you'd have a Mount Everest to climb to get to a convincing-sounding justification.

Now to the most obvious concocted pseudo-justification, from an answer a Quora poster gave, to which user Pacerier linked here in a comment:

A third party is paying them both, but that third arty is not purchasing sex. That third party is buying their labor in the service of making a movie. The money or other material consideration is being exchanged for the end product of a motion picture, not for sex.

About two to three times a month, someone will come into Quora and ask “Can I hire a porn star to have sex with me and say I'm making a movie, but then just never release the movie, and that won't be prostitution?” And the answer is no. People have tried that. The courts won't accept that argument.

yeah … only that it is not uncommon that the producer also stars (= has sex) in the pornographic movie! This itself is not illegal.

The “third party pays” criterion is a figment of the non-lawyer's imagination!

Also, even if it were true, does it matter? If well-meaning uncle Bob pays a prostitute for his nephew Dave because he is a virgin at 20, it would still be illegal. So the only way out of this really is to claim that filming and publishing an act, which is criminal otherwise, magically makes it legal. And this is patently absurd.

Courts will “see through it” … yeah, but not on any remotely objective standard. It's just the very vague gut feeling of the prosecutor (and later the judge or jury) that a certain pornographic movie production seems just a bit too phony.

Okay, maybe we can look at the harm their work does to real pornographic actresses and prostitutes? But here it doesn't seem much better…

The study

“Sexually Transmitted Infection Testing of Adult Film Performers: Is Disease Being Missed?” by Rodriguez-Hart et al. in Sexually Transmitted Diseases: December 2012 - Volume 39 - Issue 12

comes to the conclusion:

Compared with the brothel workers of Nevada, another legal sex worker population in the United States, GC [Gonorrhea] and CT [Chlamydia] prevalence in this study [of pornographic actors in Los Angeles, CA] is significantly higher. […]

The high prevalence of STI infections and the discordance between anatomical sites are especially concerning because the potential for rapid STI transmission within this group is great. The attack rate for the 2004 outbreak of HIV in the AFI was 23%, and 61 primary and secondary sexual contacts were exposed in 23 days. A male performer diagnosed as having HIV in 2010 had 16 primary sexual contacts within the 8 weeks before his HIV and oropharyngeal GC diagnosis, 2 of whom were discovered later to have had HIV at the time of filming. In addition to the large number of sexual contacts, the high geographic mobility of performers contributes to the increasing potential for disease transmission. Of the 161 participants with valid zip codes, 20 (12%) designated 7 states other than California as their home of record, and among these, 5 (25%) had an STI (data not shown). If they reside in the states they listed, there is a significant possibility of STIs acquired in LAC being spread to individuals in cities to which performers return.

Also, in most cases, sex work is not a work you can do till retirement, rather opportunities get meager well before reaching middle age. While an ex-prostitute will have an embarrassing-to-explain gap in her “normal” working history, on top of that a former pornographic actress will also be recognizable as such by colleagues and customers. This will far more seriously limit post-sex-work employment opportunities. Your past life as a pornographic actress will always haunt you.

jobermark's idea that the presence of the camera documents abuse, has some plausibility to it, but completely lacks empirical evidence. For example, why do we not know if the allegations against James Deen are true? Why didn't the camera help to either corroborate the accusations against him (or to exonerate him)? Can jobermark show that the porn set is really such a controlled environment? Also, to make his argument cogent, he should have presented some evidence that criminalization of prostitution really reduces, in total, abuse (this is questionable – including for the “Nordic Model”).

To sum it up, there may be many internally consistent ways to legislate pornography production and prostitution (it becomes a question of your values at some point, of course). But regardless what your position on sex work is in general, one thing is beyond reasonable doubt: the current US legislation is grotesque by all measures.

But now to your second question:

I just wanted to see if anyone had any explanation for this.

We can't justify it, but we can easily explain it, if we just free ourselves from the false assumption that legislation in Western countries is generally sane and consistent. It just isn't.

Lawmakers are often ill-informed or irrational. For example, pornography is often framed as a free speech issue. This is a very effective red herring (many posters here fell into that trap): in the contest of inane slogans often dominating political discourse, “porn is protected by the First Amendment!” seems to win against “sex work is paid rape!”

It's a red herring, because this is not about Marquis de Sade's “Justine, or The Misfortunes of Virtue” or A Serbian Film though these works reach the highest levels of depravity. There isn't the slightest problem to say that the production of such works is protected by the First Amendment: the sex is either a result writing down one's imagination (de Sade) or it is simulated (“A Serbian Film”) – but paying someone for real sex would still be illegal. Just because you film and distribute it afterwards it wouldn't magically become legal. Like with any other crime: a violent riot also doesn't become legal when you make a movie about it.

But far worse than the irrationality of lawmakers is that the pressure from lobbyists or just from – there is a fitting German philosophical term – the “Macht des Faktischen” (the normative power of what is current practice) is immense.

Prostitution was de facto banned in all US states except Nevada by the 1920s. In the progressive era, prostitution (like alcohol) was seen as a social ill to be rationally addressed. Pornography only went mainstream in the 1970s, an age of considerable more liberal social mores. And so there just wasn't enough political force then to ban that too.

Today, with the Internet existing, this probably has been cemented. If the US banned pornography production, it would only harm a domestic industry while relocating the issue to another country where demand would increase.

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The framing around this is paternalistic, it is intended to take freedoms from the prostitute for her own good. It is also intended to protect the spouses of potential consumers. So look at how the camera protects a member of either class (mostly of women) from the abuses she would ordinarily be subject to.

The consumer of pornography is not one of the participants in the sex. Therefore all the participants in the sex act, in theory, have equal rights and access to all the public means of enforcing limits. They are all equally being taken advantage of by the enterprise as a whole, rather than one of them being taken advantage of by the other. Consent is literally recorded in a contract, so rape should be more easily proven.

In (straight) prostitution, which usually happens in private, there is generally a vast disparity in rights between the consumer, who generally has both the greater access to force, and the option of theft by refusing to pay. The prostitute, on the other hand, often has great difficulty setting boundaries on what she is agreeing to, since we are reluctant to discuss the details of sex, and has as recourse against non-payment only the charge of rape, which will not generally be prosecuted if she gave provisional consent where the provisions were later not met.

The presence of the camera should document abuse of the agreement. If a participant does not get paid, or gets mistreated on the set, etc. she can reasonably take the producer to the law and be heard. Since the person responsible for her safety is the one behind the camera (either literally, or by means hiring or directing that person) rather than the person with whom she is having sex, the problematic aspects of diagnosing rape or extortion are limited.

(In states where you can make prostitution into pornography simply by involving a camera, it is often explicitly decided that it cannot be an automated camera, a third party has to be involved.)

Also, the act of publication makes the identities of the individuals involved traceable, so the public contract of marriage can be enforced. If your spouse is a porn actor, you can reasonably find out, if he is a consumer of prostitution, you are unlikely to know, or at least it will be difficult to prove this in court.

I like Spider Robinson's approach (In Lady Slings the Booze, etc.), where everyone agrees ahead of time that anything might be unobtrusively watched, so there is a responsible third party, without someone obtruding into what many folks would prefer to be a private act.

  • I take your point that the camera documents any breach of contract. As for your points that prostitution tends to happen --in private --without explicit, enforceable contracts --without adequate protection --without adequate specification of what is allowed. It seems quite clear to me that these are all the case precisely because it is illegal and therefore must take place outside the protection of the law. Do you agree? – Eric Auld Aug 10 '15 at 20:03
  • @EricAuld No, sex happens in private by nature, straight sex involves one partner who tends to be larger and more demanding than the other, we avoid observing others in the process or intervening, and are squeamish about discussing its details and requirements -- even when it is perfectly legal. So if prostitution were legal, it would still reflect these facts. – jobermark Aug 10 '15 at 21:58
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    That is certainly not my intention...I am questioning the logic of the argument you put forward (whether you share the opinion or not). A brothel is not equivalent to the abusive and confiscatory nature of a pimp. – Eric Auld Aug 11 '15 at 1:55
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    I'm not sure I understand this post, but I want to. Are you trying to say the difference between legal and illegal is the presence of a camera/third-party so that privacy is lost so that we can judge the morality of sex afterwards? – James Aug 11 '15 at 20:42
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    @jobermark So the difference between legal prostitution and illegal prostitution, in your example, is the thin veil of pretense of making an amateur pornography. There's really no philosophical or moral difference. – James Aug 16 '15 at 9:09
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I am going to give a scientific explanation instead of a philosophical one. I am not sure if it's okay for this site. After all, science is a form of philosophy.

According to Matt Ridley,

http://www.goodreads.com/quotes/464439-far-from-being-laws-to-protect-women-antipolygamy-statutes-may

“Far from being laws to protect women, antipolygamy statutes may really do more to protect men.”

This is actually far from surprising. We now that anti smoking campaign actually increase tobacco's companies' stock price. We also know that anti drug laws actually profit drug traders.

Imagine the world where all men are johns and all women are hoes. It make senses for all johns to conspire to lower the hoes' price. A way to do so is by anti polygamy laws.

What has this to do with porn and prostitution?

One very easy way a rich man get a woman is by just paying for it. I have sex with you. You bear my children. Our children will inherit my wealth. What do you think?

Is it a good deal?

Yes. Most girls would think it's a good deal.

Is it a good deal if the rich man have already made many similar deals with 10 other women?

If he's a billionaire, some women will still think it's a good deal.

It's a good deal for those women. In fact, the problem with polygamy is not that too few women wanting it. Too many wanting it.

If too many women go that road, the other men don't get any.

Then what?

In western civilization and ONLY in western civilization, we have this monogamist norms.

Any method where any rich guy can get women simply by paying for it is punished.

And that's why prostitution is illegal. It allows men to get girls simply by paying.

Men can still get girls by paying. However, without explicit or implicit contract, all other ways tend to go wrong. For example, in marriage, men can end up paying huge alimony, commit suicide while the girl may just hump other guys for free now that she knows some suckers already pay for all that.

In fact, prostitution in US is defined to be sex for consideration. Basically any explicit or implicit contract is illegal.

https://law.stackexchange.com/questions/6816/whats-the-limitation-of-sexual-consideration/6818?noredirect=1#comment12842_6818

Now what about porn?

Well, porn is enjoyed by more guys. Also number of porn actress are few to create a "dent" in women market price. So it's allowed.

protected by Keelan Aug 6 '16 at 7:29

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