1. Why does Arkes reject the plea that prostitution is a "victimless crime"? (Page 231.) Is his argument that there are victims -- the hooker, the pimp, the john, a 'love child'? Or does he have other reasons?
2. Arkes suggests, "The argument over prostitution canot be settled . . . by charting material injuries and pointing to harmful, ancillary effects." (Page 232.) Why not?

PROSTITUTION 229 PROSTITUTION IS MORALLY IMPERMISSIBLE Prostitution Hadley Arkes Prostitution: Framing the all of these steps merely confirm the criteria Problem that underlay the original judgment that the movement to prostitution was a move Whatever defines, in principle, the wrong of ment away from relations of personal com- prostitution would probably have to apply to mitment and love concentrated in a mar- the fashionable courtesans, as well as to the riage, and it involved a shift (at the extreme) common prostitute on the street. The cour- toward sexual intercourse on an impersonal tesan may not seem to present the same dif- basis; with members of the public, without ficulty because she may be hidden from commitment and without loves public display, and because the prostitute There is little doubt that it would be far on the street may branch out more easily easier for the law to define prostitution if it into muggings and thefts, which will present could use as the core of its definition the other problems that the police will be com- unambiguous test of whether sexual inter- pelled to deal with. But if a law on prostitu- course takes place in the context of a legal tion were established on its proper ground marriage. But apart from the clarity it of principle, the courtesan would not stand would furnish to the law, this standard so clearly out of reach as she appears to probably points rather precisely, also, to the stand today. For the heart of the matter, I moral grounds on which the condemnation think, has to do with the acceptance of sex- of prostitution would ultimately rest. In ual intercourse outside the special context that event one would arrive at a recognition of law and intimacy that is defined by mar- that one might almost prefer these days to riage and the family From the free employ- leave undiscovered-namely, that the law ment of the epithet "whore," it is evident which condemns prostitution stood on a that common usage takes its guide from much firmer ground in an earlier period, a these very gross, and very clear, markers: period characterized by a more stringent women are labeled freely as *prostitutes" regulation of public morals, when the law when they are promiscuous, and when they was willing to condemn as "fornication" all engage often in sexual intercourse outside sexual intercourse outside marriage. It the relation of marriage. That engagement seems hardly imaginable, of course, that we may be extended; it may be offered imper- could return in our own time to that state sonally, to a larger section of the public, of the laws. And yet if the moral rejection without discrimination, and for the payments of prostitution depends at its foundation on of a fee. But no threshold is crossed here; the special significance of human love and+ 90% 230 SEXUAL RELATIONSHIPS the unique commitments of family, it is every word of moral significance from the sobering to consider the possibility that the law altogether, which is to say that they law which restrains prostitution stood on a would try to deal with a moral problem much furmer ground of principle in an ear- while using descriptions and regulations lier day than it does now, in our own. that were notably free of moral import. The The law today must be far less clear result was, and persistently has been, a mi- about the moral ground on which it would nor burlesque in the law. The City would condemn prostitution, and the result is that require, for example, that "real" massage when the law seeks to address the problem, parlors establish their authenticity by ap- the tendency has been to deal mainly with pearing either in hotels with more than two the peripheral aspects of the most outward hundred rooms, or in centers that contain manifestations of prostitution. The inclina- facilities for sports, such as swimming pools tion has often been to ban "public solicita- (with a minimum of 1500 square feet) tion" or restrict the zone of solicitation-to squash courts (which must be 25 feet wide, treat the problem, in other words, as a mat- 45 feet long, and 20 feet high), or other ter of aesthetic regulation or the abate- kinds of courts whose dimensions may be ment of nuisances. Now it is true, of specified with equal precision.' The extra- course, that solicitation may be a "nui- ordinary precision, of course, reflects the sance" or a form of harassment on indepen ritual of empty exactitude that the law is dent grounds, quite apart from whether it forced to undertake in defining the surface would beckon people to activities that are features of a problem when the authorities illegitimate. The courts have upheld the are either unable or unwilling to define the rights of communities to ban sound trucks moral essence of the offense itself. or neon signs, regardless of whether the ac- "In point of principle, it is not at all clear tivities that were being advertised were le- as to why a real massage parlor must be an- gitimate. Yet it is virtually inconceivable nexed to all of these additional facilities if it that the law could ban all forms of adver- has a claim to be what it says it is, and tisement for products and services that are therefore a right to stay in' business. In the recognized as legitimate. meantime, the return on the bogus mas- In the case of prostitution, however, a sage parlors might be high enough that the ban on all public advertising and solicita- owners could afford to build larger estab- tion has not been considered beyond ques- lishments, containing hotel rooms and tion. It should be apparent that a measure swimming pools and squash courts. After as sweeping as that could not be separated that, the law would presumably have to be- from a judgment in principle about the le- gin specifying the number of patrons who gitimacy of prostitution itself, but still there must make use of these facilities, or per- has been no disposition in the law to come haps even the proportion of hotel rooms to terms with that fact. A case in point has that must be occupied in order to have a le- been offered by New York City in its recent gitimate hotel. In this respect the exercise efforts to counter the bogus "massage par- is as ultimately meaningless as the mea- loss," which have really been brothels in sures that require these "massage parlors" disguise. As the City initially prepared leg- and pornography shops to be at least 1,000 islation on the subject, its approach was feet apart and no closer than 500 feet to characteristic of the line of attack that would be pursued by most lawyers: in the City Planning Commission, December 10, 1975/ Cal- spirit of Holmes, they would try to banish endar = 22. CP-23116, pp. I and 10--+ 90% PROSTITUTION 231 churches and schools. If the businesses in Similarly, many liberals on the West Side of question were law firms, few people are New York who were inclined to consider likely to suggest that it would be salutary prostitution as a "victimless-crime" became for the community to keep these businesses rather concerned when prostitutes began 1,000 feet apart-and 500 feet away from soliciting in large numbers in the more churches and schools. The measure be- fashionable precincts of the West 70's and comes plausible only when it is assumed 80's.' Doorbells would be rung; neighbors that there is something in the nature of the would be awakened in the middle of the enterprises themselves that is unwhole- night by men looking for prostitutes. As the some and illegitimate. But if one could ex- prostitutes settled into the neighborhood, plain the grounds of principle on which along with "topless" and "bottomless" bars, they are found to be obnoxious in the first they would attract a clientele that had a place, then these establishments could be taste for these services, and the clientele, in banned or restricted without the need for turn, would attract muggers and pickpock these charades in legal draftsmanship." ets, For their own part, the liberal residents The charade becomes ever more func- of the West Side would have been content tional, however, when the people who are to see the police deal with the problem un- most earnest in resisting the "legislation of der the cover of "nuisances" without both- morals" become quite insistent, neverthe- ering to spell out the grounds on which the less, that the culture of prostitution and law may properly restrict prostitution itself. pornography be removed from their im- Some have argued, of course, that pros- mediate vicinity. In this manner, The New titution becomes open to legal restraint York Times has been quite firm in defend- precisely because of these ancillary harms ing the legality of pornography under the that it generates-+the increase of street First Amendment, but it has also been will- crime, the propositioning of other women ing to countenance the use of legal ploys to in the neighborhood, and the blight that af- harass the purveyors of pornography and fects the community with this culture of prostitution and "clean up" Times Square. commercial sex, But once again the weight of the argument is placed on empirical ef- fects or material injuries without any ac- The same observation would have to be made, for ex- count of what would be wrong in principle ample, in response to the contention of the authorities with prostitution itself. In the absence of in New York that "if a land use is so Incompatible with that principled argument, the mustering of the predominant uses of a district's zoning as to evidence on the "effects" of prostitution change the character of the area, it is appropriate to simply yields, once again, a mere collection remove that use." See ibid, p. 3. If one entertains the possibility that the "new" use of a building may be for of correlations that entail no conclusions. It a law firm or a good restaurant in a district that for- is certainly true, for example, that the pres- merly contained no law firms or good restaurants, the ence of prostitutes seems to bring an in- statement would reveal its own vacuity, Once again. crease in thefts and muggings. But similar the policy of the city would make sense only if it. were effects may be generated by many legiti- mderlain by a substantive argument as to why broth- els are illegitimate businesses. In the absence of that mate entertainments that happen to bring kind of argument, the legal measures of the city be- out large crowds. The incidence of pick- come reduced to so many legal formulas, without sub- pocketing is likely to rise in and around stance or justification on their own terms. See Walter Berns, "Absurdity at The New York Times," Harper's (May 1973), pp. 34ff See The New York Times. April 4, 1976, p. 47.232 SEXUAL RELATIONSHIPS Yankee Stadium when the Yankees are import of a "union" or a "wedding." To ad- playing an important series, or in Grand mit a fusion in that way with another per- Central Station on Friday afternoons; and son would be unthinkable unless one were yet it would be inadmissible to suggest that motivated by the deepest personal love. these legitimate activities ought to be sup- But to say that two people are bound to- pressed because of the opportunities they gether in love is to say that they are con- afford for crime. In all strictness, it would nected by more than a casual attraction. be as invalid in principle to ban these activ- And that connection finds its proper ities as it would have been wrong, in the ground when it proceeds from an under- case mentioned earlier, to ban the ice standing of those things which make one's cream wagon because its presence on the partner truly worthy of being loved. town common induced people to tread on When that deeper source of attachment the grass. . . is present it becomes a proper ground for The argument over prostitution cannot commitment. And few things express the be settled, then, by charting material in- sense of that commitment as literally as a juries and pointing to harmful, ancillary of- tie made solemn and binding with the pub- fects. None of these items of evidence can lic imprint of law. Nothing could signify have a decisive weight in the absence of a more precisely the nature of that commit- showing that there is something in princi- ment than the willingness of lovers to forgo ple wrong with prostitution itself; and it is their own freedom to quit this relation on that point, ultimately, that all other when it no longer suits their convenience judgments must turn. It might be said that the union consecrated by law stands as the most appropriate sym- Prostitution and "Plain Sex": bol of a moral connection between lovers The Search for a Principled For as we have seen, law arises in the most Argument proper sense only from imperatives of moral standing; moral propositions entail Whether prostitution has been legalized in the existence of law because the logic of any place or not, "prostitute" and "whore" morals is a logic of commitment. The bind- have always functioned as terms of con- ing of a marriage with law may draw to it- tempt. And if we sought to account for the self then the same sense of solemnity and source of this aversion, it would probably moral import that invests the notion of be found in the disparity that exists, in "law." prostitution, between the special intimacy In addition, of course, two people in a of the sexual act and a context that is radi- marriage will often produce children, who cally unsuited to that intimacy. There are embody in their physical presence, in their many tiers of closeness, we know, but there mingling of features from both parents, the is nothing precisely equal to the intimacy of spiritual union of the two lovers. If the the sexual act and the moral portents that marriage does produce children, then it is envelopit. The sense of "penetrating" and all the more important that these children enclosing, of coupling embraces and fusing are brought into the world and nurtured in bodies, marks a relation quite apart from a setting that is already defined by the legal anything that is accorded even to close commitment of a marriage. I venture no friends and confidants. It suggests the im- commentary here on the question of age of two bodies seeking to become one, whether "broken" homes are more destruct and it draws to itself all of the symbolic tive for children than families in whichPROSTITUTION 233 both parents are present. A single parent against prostitution cannot depend on pre- with goodness and sense would clearly be dictions of this kind. It cannot rest on any better than two indifferent and irresponsi- proposition to the effect that a higher inci- ble parents. I simply take account of the dence of prostitution will cause an increase fact that the first agency of moral tutelage in the breakup of families. Even if that no- for the child is inevitably the family, and in tion found some statistical support, it point of principle it matters profoundly would still represent nothing more than a that the child is introduced to the moral contingent proposition, rather than a world through a structure that embodies proposition that must hold true as a matter visibly, concretely, the meaning of a moral of necessity. At the same time, the argu- commitment. ment would become vulnerable to any Perhaps it has been part of the odd ap- showing that certain people are in faet ca- peal of prostitution over the years that it pable of preserving their families, along stands as a reproach to the conventions that with a special love for their spouses, even reflect these moral understandings; but while they seek other satisfactions in prosti- that is precisely the source also of the tution. The matter of the family becomes wrong that prostitution represents in prin- pertinent only as it stands as the instance of ciple. Prostitution inescapably implies that a larger principle that is engaged in the the intimacy of sexual intercourse need not question of prostitution. be connected to any authentic sentiment of From that perspective, the importance love and that it need not take place in a set- of the family is that it is the most immedi ting marked by the presence of commit- ate school of moral instruction,, and this ment. In that sense it might be said that moral import of the family is in fact central prostitution patronizes the corraption of. to its definition. A. I. Melden once pointed physical lovenit reduces physical love to the out that the obligations which children are kind of hydraulic action that animals may thought to have to their parents cannot be share, and as it does that it detaches the act entailed simply by a biological connection. of intercourse from the kind of love that is A man who sires a child and then deserts distinctly human. The love that may arise his family cannot claim later the duties between human beings is not simply a mat- owed to a father. Those obligations are ter, after all, of successful orgasm; it may predicated on moral terms, on the under- also involve, at its highest level, a respect , standing that the father has discharged the for that character or principle of which responsibilities of a parent in the care of his one's partner is an example. child." Parental rights, then, cannot flow to To the extent that prostitution dispar- a father simply by virtue of his biological ages the notion of a love that is distinctly definition; they can be claimed only by the human, the argument has been made that man who has fulfilled the moral definition prostitution strikes at those institutions, like of a father. We might say here more strictly the family, which depend most importantly what any child would understand: that a fa- on the ties of love. But care must be taken ther who does not satisfy the moral defini- here to avoid the form and properties of an tion of a father is not really a father; or, as "empirical" argument. Principles clearly the saying goes, he is a father in name only. have consequences, and we ought to be aware that the erosion of certain moral un- derstandings may have serious, adverse re- "A. I. Melden, Rights and Right Conduct (Oxford sults for the family. And yet, the case Basil Blackwell, 1959), Sees. III-VI, pp. 9-20.234 SEXUAL RELATIONSHIPS In the same way it could be said that a It does not strictly matter, then, what family is a family only in its moral defini- the evidence may tell us about the "health" tion, A natural biological group cannot be of children raised in legal families or infor- considered a family if it is not constituted mal "living units." As a matter of princi- in the first place on terms that recognize ple-as an emanation from the very no- the binding force of principle. A man and tion of principle itself-a family in its woman "living together" informally with moral definition must be constituted by their child may furnish, for all we know, a commitments made manifest in law; it sense of affection and care which exceeds must represent in its very structure an that of many legal families. But quite apart awareness of a moral universe; and if it from their performance, there is an inde- does not have these features, it is not really pendent ground of concern for the terms a family. on which this "living arrangement" is con- Some critics may intervene at this point stituted. There is something fearful in a and grant all of this to be true, but they family life whose founding doctrine is that may raise the question of why all sex must no one may be bound ultimately when he be confined to the family, and why all sex chooses not to be bound. This doctrine is at must be "serious" sex. They may concede war with the very notion of morals, and it is as Alan Goldinan does, that sex may be af- not hard to consider what its consequences fected with a much larger significance may be if it comes to pervade the life of the when it is enveloped by love and commit- family. (And if it is not meant to define the ment, but he would suggest, quite aptly, character of the family, we would be left to that many other prosaic activities may also wonder why the partners would make this be transformed when they are animated by understanding the cornerstone of their "re- deep personal love. (One thinks of a lationship.") It may be liberating to know mother in middle years, anticipating a visit that responsibilities are accepted out of af- from her married son, and concentrating all fection rather than compulsion; and yet . her loving care in the preparation of his fa- that sense may be fostered in many legal vorite tuna casserole.) And yet sex may also families as well, while the informal "living be, as Goldman says, "plain sex": it may in- arrangements" are incapable of teaching volve simply "a desire for contact with an- what is manifest in the very constitution of other person's body and for the pleasure a legal family. The child of an authoritarian which such contact produces." What is father may find his parent disagreeable, but central here is "the immersion in the physi- he may come to understand in a number of cal aspect of one's own existence and atten- ways that his father is committed to certain tion to the physical embodiment of the responsibilities for his care by a law outside other." the family. He may know that the commit- The serious mistake, says Goldman, ments of his parents cannot be discarded at comes in confusing love and sex: there can will, and that his claim to their care will not be no such thing as "casual love" as there end when he ceases to please them. In that may be "casual sex." Love, he suggests, is way even some of the least appealing legal properly monogamous; it involves "a long- families may nevertheless impart to their term, deep emotional relationship between children the meaning of lawfulness; and children who have absorbed that lesson have cultivated also an awareness of the Alan H. Goldman. "Plain Sex," Philosophy and Public rudiments of morals. Affairs, Vol. 6, no. 3 (Spring 1977), pp. 267-87, at 268. [Reprinted in this volume -Eds. ]PROSTITUTION 235 two individuals." For that reason it is possi- light when he seeks to argue that "there are ble, as he argues, that men and women may no moral implications whatever [in sex]. be attracted erotically to a number of peo Any analysis of sex which imputes a moral ple; they may be drawn by the beauty of character to sex acts in themselves is wrong others, they may even extend their love and for that reason. There is no morality intrin- admiration to people who genuinely merit sic to sex, although general moral rules ap- love; but none of this may disrupt the ply to the treatment of others in sex acts as unique love and the special relation that they apply to all human relations." That is, they have with one other person. there is no morality intrinsic to sex any Still, what if that "other person" has a more than there is a morality intrinsicito different reaction? What if a wife happens driving a car or hitting a golf ball. But the to feel less "unique,"and somehow dimin- man who drives recklessly, or the sports- ished, if the intimacies she regarded as spe- man who finds his satisfaction in stroking cial and exclusive were now shared easily his golf balls through other people's win- with many others? But if the issue really dows, may suffer the restraint of his free- turned on the injured feelings of spouses, dom. And yet, until they misuse their free- then the problem would essentially dissolve dom in this way, they have a right to their in those instances when the spouses do not freedom to drive or play golf, and Goldman object (and where they may in fact claim . would make essentially the same claim for the same franchise for themselves). When "plain sex" pursued, with an innocent mind, the spouses do feel injured, the pursuit of for the special pleasure that sex may afford. sexual pleasure may take on the additional purpose of inflicting injury on another, and If we have reservations about an argu- the sexual act, in that aspect you'd be sub- ment of this kind, they would no doubt be- jest to condemnation That kind of case gin with the conviction, nourished by gen- would not be different from a class of other erations and consecrated by song, that cases in which people pursue their sexual there is, after all, something different about pleasure in ways that are designed to shock sex.Of course any activity may be innocent or assault others-for example, the men until it is directed toward wrongful ends, whe expose themselves in public, or the and on that point there would indeed be no couples who have intercourse in the. difference between sex and parachute- streets+ and these people would no doubt jumping (though one should be fearful, I be subject to reproach and restraint. suppose, of marrying someone who did not But when sexual intercourse is not used know the difference). But sex may be dif- to harm another without justification, then ferent in ways that are morally significant, it is Goldman's argument that it must be and the recognition that it is different is of- treated just like any other innocent activity ten borne out indirectly by people who are that is pursued for its own pleasure. It has inclined to take an "advanced" position on been a necessary part of my own argument matters of sex. A few years ago a group of in these pages that people undergraduate women at Yale demanded the exercise of their personal freedom in all that rape should be recognized, in the code of its expressions unless they do something of student conduct, as a crime quite apart that is in principle wrong, and it is only on from others. Presumably assault was al- the basis of a principle that the lawmay re- ready a crime according to the statutes of strain that freedom. Goldman's argument probably ought to be understood in this Ibid, p. 280.90% 236 SEXUAL RELATIONSHIPS Yale, and if rape were nothing more than victim was sterile. Our understanding of another assault-an unwarranted setting the crime is formed by our awareness of upon the body of another person-then it the special significance and the moral im- would have been no more necessary to port that invests the act of sex. That is why make any further specifications for rape the moral outrage which the crime elicits is than it would have been to distinguish as- virtually indifferent to any showing that the saults directed at the head, say, from as- probability of conception in rape is very saults directed at the legs. Why then should slight (which it is) or that the participants rape have been different? were incapable of generating children. The There was an awareness, I think, of rape same reason may also inform the tradi- as not merely a striking of the body, but an tional objections to casual sexual encoun act of larger arrogance and violation. There ters by people who may not seem im- is something different, after all, about the pressed with the unique significance of sex, penetration, the forceful access to an inti- or who are conspicuously less than awed by macy that is reserved only for people with an inventory of consequences that truly whom the woman has a special connection. merits their awe. beth It may be hard to put the matter artfully, But the outrage that has arisen tradition but it must be said also that this is an as- ally in response to rape has held a tendency sault in which the assailant presumes to en, also to moderate with the showing that the gage the reproductive capacity of the woman involved was notoriously unselec- wornan: That is, altogether, quite different tive in admitting people to her intimacies; from the average mugging or the lifting of a that her consent, in effect, to enter was wallet: this assault, unlike other assaults, usually bestowed with no more hesitation may actually generate new life; and one than is shown by the average ticket-taker; does not typically engage in anything as and that she was willing to risk the engage- grave as that with anyone who just happens ment of her reproductive capacities-per- along on the street. And in the passions .haps even with strangers in the dark-for a that have ever been aroused over *this price that was not overly demanding. In crime, the child that is conceived as the in- short, the awareness of a wrong diminishes nocent issue of the crime has often been as the putative victim comes closer to that marked as a fit candidate for abortion, as pattern of conduct which fits, more or less though he were, in himself, a memorial to strictly, the sense of prostitution. the trauma, or as though he somehow Again, the popular understanding here shared responsibility for the original crime. is probably a more accurate guide to the In that way there seems to be immanent in nature of the problem than the more inge- the agony of this violation an impulse to ef- nious offerings of social scientists. The face the original injustice with another one wrong of prostitution cannot be found in more lethal. any contingent reckonings about venereal It is hard to account, I think, for the re- disease, the stimulation of crime, or the vulsion that marks rape as a crime apart breakup of families. It must be found from others without recognizing what is rather in principle-in a principle, we different about the intimacy of sex and the might say, that begins with the awareness of portentousness of reproduction. At the principle itself and of beings that alone same time it should be apparent that the have access to the understanding of princi- revulsion would not be diminished in any ples. The aversion to prostitution finds its way by the news that the assailant or the proper ground in the recognition that therePROSTITUTION 237 is something of inescapable moral signific tution in the United States). But could cance about sex in creatures who may have prostitution be regarded, then, as a "busi- moral reasons for extending or withdrawing ness" just like other businesses? Would he their love; whose purposes in conceiving have been willing to see his daughter work children may be enveloped with a far more in a brothel during her vacations from complicated understanding than the mo school-as willing as he would be, say, to tives that inspire procreation in animals; see her work in a restaurant or an office? and who treat as profoundly serious the The answer, unequivocally, was no. terms of principle on which sexual fran- If the argument I have been offering chises are tendered. here is correct, this ultimate aversion to What is finally unacceptable, in princi- prostitution is grounded in something more ple, about prostitution is that it, most deny substantial than convention, and it is not implicitly this kind of significance in sex. It likely to disappear in future generations. must reject this understanding because it is We would expect that, twenty years from compelled to deny the ultimate and insis- now, even parents holding the most ad tent sovereignty that is entailed in our lives, vanced views are not likely to offer a stand- in all aspects of our lives, by the capacity of ing ovation when their son announces that human beings for moral judgment. In that he is about to withdraw from medical sense I think it may be said that the wrong school in order to become a male prosti- of prostitution would be drawn, in Kantian tute. But the opinion of parents cannot be fashion, from the idea of morals itself ,and unaffected by the things that society from the nature of that creature which has teaches through the law about the kinds of the capacity for morals. It would arise, that occupations that are respectable; and if the is, as a matter of necessity if one is com- laws become equivocal in regard to matters pelled to acknowledge the special signifi- like prostitution and pornography, we cance of sex in creatures that have access to should not be surprised to find even par- moral understanding. ents taking a more relaxed view of these enterprises, especially if they themselves Child Prostitution, can turn a small profit. The most bizarre Pornography, and "Legal example, which has burst upon us just in Paternalism" the past few years, is the growth of child prostitution and what has been called "kid- A friend recalled for me once, with linger- die porn" (OF child pornography). Parents ing admiration, the brothels he came to were found hiring out children as young as know in China and Japan after the Second three and four years old to perform sexual World War. The services in those establish- acts for pornographic magazines and films. ments were rendered with all the delicacy In January 1977 a couple in Colorado were and exquisiteness that comes with the culti- vation of a fine art. My friend began to "Of course if prostitution should ever become a legiti- make the case for legalized prostitution mate profession, we should expect that it will show the along the familiar lines of argument, and he same banal urges of other professions to adorn itself contended, in addition, that the existence with a vocabulary that will support its pretensions to of legalized prostitution in China and Japan professionalism. Its practitioners will probably carry did not seem to threaten the institution of attache cases, and state universities will probably offer the family there (although he thought it both preprofessional and M.A. programs in Sexual Therapy, perhaps as part of an overall School of Ther- might have a corrosive effect on that insti- apeutle Sciences.238 SEXUAL RELATIONSHIPS arrested for "selling" their twelve-year-old the supporters and the serious difficulties son for sexual purposes for $3,000. In that some of them would have in working Rockford, Illinois, a social worker was con- out a rationale for the legislation. It was no victed for permitting his three adopted particular problem to support laws that re- sons to perform sexual acts before a camera stricted the use of children in prostitution for $150 each." In some cases the parents and pornography if one was generally in fa- performed with their own children, and ac- vor of restricting both prostitution and cording to Judianne Densen-Gerber, this pomography. And yet if one happened to new vogue in incest managed to produce, believe that prostitution should be legalized in two grotesque cases, gonorrhea of the or that pornography should generally be throat in infants as young as 9 and 18 available without restriction to mature months old. adults, then it was far harder to produce an These outrages produced one of the rare argument that came anywhere near the ex- moments of unity these days in the political pression of a principle. . . class of the country, Political figures and The easiest rationale, for the Left as well commentators, on the Left as well as the as the Right, was that the legislation, after Right, joined the call for legislation. (The all, was about minors. With a few notable only reservations came from sections of the exceptions, it was still common to assume American Civil Liberties Union, which that young people do not have the maturity feared that the government might not to manage the most consequential deci- merely prohibit the use of children in sions in their lives, and restrictions have pornography, but that it might actually go been accepted on minors that would not be on to prevent adults from viewing these established for adults. It was thought, in productions!)" The result of this rising na- this respect, that the engagement in sexual tional sentiment was the Act for the "Pro- acts for public display was one such grave tection of Children Against Sexual Exploita- matter that minors might not have the ma- tion," which forbade the employment of turity to determine for themselves. (This children in pornographic enterprises. The judgment was freely offered, it must be act also carried penalties for parents and said, even by people who were also quite guardians who knowingly permitted their convinced that minors had the maturity to children to be used for these purposes.13 decide for themselves whether to have But the consensus achieved on this issue abortions, without the knowledge or con- temporarily masked the differences among sent of their parents.) Beyond that, it was argued that the employment of children in Congressional Record, March 31, 1977, p. H2853. pornography could be treated without "Notes on Press Conference, Washington, D.C. (Feb- strain as another incident in the restriction ruary 14, 1977). of child labor more generally. And yet that explanation did not entirely I See the statement of Ira Glasser reported in the Congressional Record, March 31, 1977, p. H2853. satisfy. The restrictions on child labor car- ried many exemptions, and some of the 418 U.S.C.A. 2252 (1978). The problem of prostitu- most notable were the exemptions granted tion was covered under the old "White Slave Act," but Congress amended the section on the "Coercion or to children to act in legitimate movies or enticement of minor female" and changed it to the to model clothes in catalogues. There Transportation of minors." In that way the act was was reason to believe that children who broadened to take in male children as well. 18 U.S.C.A. 2423. were thrust, at young ages, into the role of celebrities could suffer alterations inCHARGES AGAINST PROSTITUTION 239 personality and character that were not al- in movies for Disney or modeling in cata- ways wholesome. It was apparent, also, that logues for Sears, and the obvious question the parents who sought to propel their chil- must be put: Why this discrimination? dren to stardom were often moved by im- Would it not be apparent that the differ pulses that were no less self-serving than ence between the cases must turn, not on the motivations of those parents who the labor of children, but on the things that traded off the careers of their children in separate Disney movies and Sears cata- pornography. But the legislation on child logues from pornography and prostitution? pornography was supported, as I have said, And how could the legislation be defended by many people who professed to regard then unless we were finally able to explain the production of pornography as a legiti- what it is that makes prostitution and mate business, as legitimate as making pornography in principle offensive in a way movies for Disney and catalogues for Sears. that Disney movies and Sears catalogues It goes without saying that there was no are not? . . move to restrict children from participating