Legal Commentary

Orly wrote a typically interesting and provocative post about the Spitzer saga yesterday, arguing (as I understand it) that at least some forms of prostitution, namely those involving the possibility of "rational choice" and the relative unlikelihood of "abusive gender exploitation," should be legal.  In the course of making her argument, she wrote, in part:

Yes, [the Spitzer case involves] prostitution, but, I argue, not the kind that feminists should be particularly concerned with. Many of these girls are probably confident, educated, empowered college or graduate students with all sorts of goals in life, who, exercising their agency, prefer making $5000 (or even $2000, after the company takes its share) an hour sleeping with some of the world?s most powerful politicians and business men than waiting tables, washing dishes, or working at Wal-Mart for $8 an hour.

Similarly, in a comment on an earlier post, our frequent correspondent Paul Gowder wrote: "I'm given to understand the prostitute was expensive, so this probably isn't a particularly exploitative relationship, as prostitution relationships go..."

I'm wondering what this story, revealing the name and describing at least some of the background of what purports to be the fateful (and fatal) prostitute in question, does to Orly and Paul's arguments.  It notes in part that the woman "left 'a broken family' at age 17, having been abused, according to [her] MySpace page, and has used drugs and 'been broke and homeless.'"  And it says  she is "worried about how she would pay her rent since the man she was living with 'walked out on me' after she discovered he had fathered two children."

A few initial comments:

1)  First, I cannot say for certain that her statements concerning her background or current status are true.  People have been dishonest before . . . even on their MySpace pages.  But of course, her statements could easily be true; she would hardly be the first woman to have encountered family conflict, drugs, homelessness, and male faithlessness.

2)  If her statements are true, is this really the kind of "confident," "empowered" person who is fully capable of exercising the kinds of rational choice and free agency Orly is talking about?  The kind of woman with whom feminists need not be "particularly concerned?"

3)  If question #2 is a reasonable one, then is it possible that we should not rush to assume that "high-priced call girls," or whatever other cliched phrase we want to use, are some breed apart from those kinds of prostitutes that we think of as lacking genuine choices and agency and needing legal protection?  Isn't it possible that even successful prostitutes don't always have, or see themselves as having, viable options and alternatives?  Does the fact that one is making money (at least in gross, although perhaps not in net), that one chooses prostitution over a job at Wal-Mart, necessarily mean that this is a free and rational choice?

4) I don't mean to be too heavy-handed about questions #2 and #3.  It seems to me they cut both ways.  We generally assume that lots of people possess sufficient human agency to be responsible for their decisions, even if they make bad ones or don't have especially attractive choices.  Most of us -- Barbara Ehrenreich devotees aside -- would treat a person in a low-end or unpleasant job as having at least some agency; indeed, to do otherwise might be tantamount to stripping them of basic respect and recognition.  Why does that necessarily change if the occupation is switched to that of low-end "sex worker?"  Do we assume that unless a sex worker is a "high-end" prostitute, she necessarily  or presumptively doesn't have free agency compared to, say, someone who instead chooses to work at Wal-Mart?  Why are our assumptions radically different?  Should we be more willing to concede agency to low-end prostitutes, and not just "high-end call girls" -- or less willing to treat low-wage workers as having real agency or viable choices of their own?  Can we at least start seeing the "high-end"/"low-end" prostitution distinction as being part of a spectrum rather than a simple dichotomy?

Truly, I don't mean to be too heavy-handed about any of this.  My comments are indeed "initial" ones, and as I have suggested, some of these thoughts cut in different directions.  But two things, finally, strike me when I contrast Orly and Paul's earlier comments with the more sordid and sad details painted in Thursday morning's story in The Times.  First, that we seem to be willing to be more blase about prostitution only once we have scrubbed it through some kind of idealized, glamorized, fictionalized, upper-crust fantasy machine, through which it emerges guilt-free and shorn of any "particular feminist concerns."  And second, that the real-life facts are, inevitably, more complicated -- in every direction.