July 26, 2009

On Victims and Libertine Oppression

Justin Katz

Today's epiphany — which I wouldn't be surprised to find to be common understanding among a great many people more insightful than myself — is the intellectual proximity of those who would erase from the books any "victimless crime" and those who see a "victim" of a social crime in every unhappy circumstance. The first believe that an act must directly harm an innocent party in order to be a crime, and the second, agreeing, qualify the circuitous, unintentional effects of social movements as adequate evidence of victim-producing acts.

For my part, I find it more practical to consider the presence of a victim to be only one factor in determining whether something ought to be a crime, and not necessarily the definitive one. After all, any undesired consequence can be reformulated as an imposition on a victim, reducing the debate over appropriate laws to a tug of war across the sliding scale of victimhood and, then, pitting one claim against another.

The thought arises in response to a comment from Dan to my most recent post on the matter of legal prostitution in Rhode Island:

Justin, I have been a long-time reader of Anchor Rising. I fully support your efforts to reduce the size of the state, out of control spending, corruption, and intrusion into the private lives of citizens. Which is precisely why these isolated pet "moral" issues of yours and Matt Allen's bother me so much, they are such transparent hypocrisy and they undermine all of the good that you do here. How do you determine what private consensual conduct should be regulated by the state and what private consensual conduct should not be? And why should you be the one who decides these "moral" issues for everyone else, banning any conduct which you don't think a righteous person should engage in? I submit to you that the most positive philosophical and practical change you could make for yourself would be to drop these moral crusades against victimless crimes. If somebody isn't harming anyone else, and a transaction is consensual by all parties (human trafficking/slavery/abuse aside, we already have laws against that) then the state should not have the right to intervene. A victimless crime is no crime at all, and the state certainly does not need an excuse to grow itself, spend money, and regulate its citizens further, I think we would all agree on that. The kindest thing you can do for someone is stop trying to save them from themselves. We, as people, all have the God-given right to do as we wish with ourselves as long as we do not harm others in the process. Any coercion that infringes upon that right, whether it is by the state or some private action, is an abomination.

For the presentation of a direct rejoinder, it might be sufficient to note that the essential observation of the post was the concession by the progressive legislators who oppose closing the prostitution loophole that it is not a "victimless crime":

Where does this leave the remaining women, likely the large majority of prostitutes, who engage in sex work by choice, whether out of [1] economic hardship or because of [2] substance-abuse problems?

Even a conservative can discern a fair degree of victimhood in either of those circumstances, as emphasized by efforts of those who profit from the women's condition to perpetuate it. To wit, it is not enough simply to declare that no victim means no crime; one must prove the prior point that there is no victim.

Of course, even believing the women to be victims, I'm not inclined to rely on that conclusion as the basis for supporting legislation to criminalize their profession. Therefore, I'm even less inclined to construct the argument that would prove society to be the victim, although the case would be strong. Instead, let's focus on the core proposition of Dan's comment, which he poses rhetorically as questions:

How do you determine what private consensual conduct should be regulated by the state and what private consensual conduct should not be? And why should you be the one who decides these "moral" issues for everyone else, banning any conduct which you don't think a righteous person should engage in?

The plain answer is that I determine what conduct ought to be discouraged, what conduct ought to be encouraged, and how that direction ought to be pursued based on the rational application of principles that are inherently and wholly religious in nature. The mildly less plain extrapolation of that statement is that everybody performs a similar assessment — unavoidably, as a consequence of self-cognizance.

It won't surprise readers, even as it may shock them to read it stated, that my judgment is primarily guided by the efficacy of the various possible policies at drawing the maximum number of people toward the realization of Christ's divinity, with all of the spiritual and material benefits that I believe to be consequent to that revelation. Others judge the possibilities against a scale of emotional satisfaction, whether the social average or their own, and a multitude of other options and combinations thereof exists.

With respect to Dan's second question, I can only explain that my rational application of Christian principles leads to the conclusion that I should not — cannot — "be the one who decides these 'moral' issues for everyone else." However, it is the most fundamental of assumptions, in any democratic system of government, that individual citizens must possess the freedom to define their own societies to the greatest conceivable degree. The liberties involved with private behavior pale in significance when compared with the right to apply one's judgment to the system under which one must live.

Balancing the inevitable contradictions of such an imperative quickly becomes a complicated matter — impossible absent a tolerance for disagreement. The fullest expression of that tolerance (true tolerance) comes in the acceptance that fellow human beings will congregate elsewhere to live an incompatible manner. That is why I would oppose an international or national ban on prostitution. The inverse of that opposition, however, is an insistence that we be able to ban the practice at a lower tier of government; as things stand, the lowest feasible tier is that of the state.

From there, the issue becomes a persuasion of preferences, and I want my society to be one in which sex is not available for commerce. We could have a very interesting discussion about the reasons that should be the policy, which would bring the degradation of the women (and men) back into the conversation, as well as introduce the cultural diminution of sex, marriage, and ultimately human life. The immediate point, though, is that I think enough of my fellow Rhode Islanders agree with my final conclusion that the law ought to be changed.

I'll debate the intricacies right down the dregs of disagreement, but public opinion probably would not require such debates prior to a decision to ban prostitution outright. Those who take Dan's point of view seek to present the question in such a way as to declare the preferences of that majority invalid, and the likes of Rep. David Segal undertake the slithering strategy of preventing the question's ever being directly put based on one prevarication or another.

Either way, the dark underbelly of bold libertarianism rolls around to expose the moral sclerosis by which libertines would impose their vision of society on everybody else. A philosophy that would declare even "private actions" to be "an abomination" if they seek to affect the behavior of others is not, in the end, concerned with rights and civic freedom, but with coercing the state to protect its own immorality.

Comments, although monitored, are not necessarily representative of the views Anchor Rising's contributors or approved by them. We reserve the right to delete or modify comments for any reason.

Frank Zappa once said, "If being a conservative means you want to keep government small and taxes low, then yes, I am a conservative." Thought I might disagree on how to achieve those goals, there's nothing inherently wrong with conservatism.
It's only when some people perverted conservatism by diving into people's bedrooms and private lives and trying to dictate what goes on there that the problems began. There should be many more conservatives today, except plenty who sympathize with its economic goals have been turned off by the intrusions into our personal business.

Posted by: rhody at July 26, 2009 1:28 PM

I don't disagree with your general statement, which is why in the vast majority of cases, I think it furthers my ultimate goals to advocate for individual liberty.

The difficulty, with prostitution, is that it makes "people's bedrooms" their places of business, and their "private lives" their public professions. Note that, in terms of functionality, making it illegal to buy sex or profit from others' sale thereof would not penalize prostitutes who are able to make it literally a private matter.

I wouldn't support intrusive investigations to determine whether, say, a promiscuous woman is making a profit from her practice. Moreover, I'd actively oppose the allocation of significant resources to cracking down on individual transactions (as opposed to organized pimping).

P.S. --- I'm not even going to attempt to unravel your anachronism... as if the world existed in a state of Edenic libertarian bliss until conservatives started beating down doors some time in the late 20th century. Quite a world you inhabit, there, Rhody. Quite distorted.

Posted by: Justin Katz at July 26, 2009 1:54 PM

Justin's response to Rhody is perfect. You can't have it both ways. Either prostitution is a legitimate commerce, which by definition is public and thereby subject to laws and regulations like other forms of commerce, - or it is not in which case it is illegal. Justin is right in pointing out the issues associated with each. While Rhody just screams "get out of my bedroom!" either missing or ignoring the concern.

Also, the argument defending prostitution on the grounds of people forced into it by abuse or economics does not fly. Where does one draw the line? Selling drugs? Gun manufacturer? Everyone should be able to use his or her skill to make a living in a free country, right? There are two legitimate sides and cost and benefits for each side - if one chooses to look past the rhetorical oversimplifications.

Posted by: msteven at July 26, 2009 2:55 PM

Justin, thank you for your thoughtful response. Of course I do not disagree with your conclusions, but I am always delighted to have meaningful conversations on such important topics.

First I do not agree with your characterization of libertarians as "libertines." Many libertarians have strict moral codes for themselves as well as for others. The distinction is that libertarians do not seek to impose that moral code on others by force (through the state) as long as there is no significant harm in the action of the other party. I know many libertarians who are monogamous, give to charity, and find theft and violence abhorrent. They are certainly not unrestrained or "anything goes" types of people.

You seem to be objecting that many seemingly victimless crimes may have a more abstract victim through the state or through externalities, or that victimhood itself is hopelessly subjective. In my mind, whether someone is a victim or not is very clear. The important test is whether they have consented or not to what is being done to them. It is therefore impossible to victimize oneself, through prostitution, drug use, or any other self-affecting behavior. Perhaps one of the cruelest and historically most abused notions is that the state has a duty to protect an individual citizen from him or herself. Indeed I am sure you agree this is an illegitimate function of the state when it comes to private property issues and government services such as health-care, which is why it is always so perplexing to me when you take the opposite position in matters involving sex, drugs, or things of that nature that you happen to find immoral for whatever reason, religious or otherwise. I certainly live a productive, healthy life and I do not want or need the government to tell me what I can or cannot do in my personal life. I am sure you feel the same way about yourself. Of course it is always "the other guy" we are worried about, but what are we except "the other guy" to a liberal or progressive or anyone else? Would you welcome such restrictions upon your own personal life? Surely not. I would dare say that you engage in many activities each day that aren't healthy or particularly good for you, such as watching excessive television or eating fast food, but you might find it backwards and inhuman to have such options removed for you under the theory that you as an adult cannot be trusted to make responsible choices. Nor are McDonalds or the cable company victimizing you by giving you such services and creating this culture, since in the end it was your decision to pay for and engage in them.

I am not particularly concerned whether we have a culture of "degrading" women or not, since ultimately it will be each individual woman choosing to "degrade" herself or not, again absent any physical coercion which would itself be illegal under existing laws. Furthermore, it is possible that many of these women you feel need to be protected (from themselves apparently) would not see it as degrading at all. If you see it that way, then perhaps you should simply stay clear of people who engage in the behavior you find offensive, and refrain from engaging in it yourself. As the saying goes, it is easier (and more compassionate in my opinion) to put on shoes than to carpet the entire world, especially when it involves coercion, and by the state no less.

The most confusing part of your post for me was how libertarians and voluntaryists are "imposing their vision of society on everyone else." This seems like "war is peace, freedom is slavery" doublespeak to me. If allowing others to make choices for themselves is imposing a worldview on everyone, then the word "imposition" loses all meaning. The distinction, which is clear to me at least, is that one system would coerce others to refrain from personal choices while the other permits people to do as they please as long as all transactions are voluntary. If you consider allowing somebody to freely choose for themselves to be an "imposition of will" or a coerced libertarian worldview, then again, the words simply lose all meaning and we are left with no way to make moral distinctions at all.

Posted by: Dan at July 26, 2009 7:52 PM

A person's choice to be conservative (or Buddhist, or to eat more than they should, or, hell yeah, to be liberal) does others no inherent harm.
A person's choice to marry someone of the same sex does others no inherent harm.
A person's choice to watch TV shows others may not approve of does no inherent harm.
No harm, no foul.
As a liberal, I have no right to impose my choices on others (just don't participate, or simply change the channel). And you know how the converse goes.

Posted by: rhody at July 26, 2009 11:15 PM


For clarity: I'm not equating libertarians with libertines; I'm suggesting that libertarians give libertines the run of the place. When it comes down to it, those "individual" liberties have a way of imposing their presence on neighbors; consider the brothel in Middletown that has driven out the science education store next door. Or consider my personal objection, which is that sex should not be something that society regards as salable, much as one's children should not be salable. This is an entirely distinct principle from the progressive urge to protect people from themselves. As I said, if a whore can manage to keep her activities entirely private (to such a degree that her clients are not regularly arrested), then I would advocate against trying to suss her out.

I like your "carpet the world" image. For my part, I've developed sufficient calluses that I don't really need shoes, but certain practices in which other engage — proclaimedly without having any effect on me whatsoever — seem apt to splatter muck across the landscape, and I assert the right to work to limit that muck in various ways. Indeed, I'd assert the right of others (with whom I don't agree on this count) to carpet, not the world, but a region in which they shape their own government. On the matter of prostitution, the state appears to be the level at which we answer the binary "yes/no."

Your argument goes beyond advocating for the legality of prostitution for its own sake, or as a firewall against impositions on other freedoms. The uniqueness of Rhode Island's law proves it, as does your couching of the debate in terms of what the state has a "right" to do. You believe that the state has no right to ban prostitution, which therefore means that I have no right to vote in such a way as to make prostitution illegal. I would restrict the commerce of sex; you would restrict my right to determine the government under which I live. I find the latter to be more authoritarian, especially since you go so far as to deride even "private action" as just as abominable as state coercion, but you may disagree.

By the way, I wonder where your limits are on "voluntaryism." Could a man sell his body to a cannibalistic fetishist, for the killing and eating (something not unheard of)? If not, why not?

Posted by: Justin Katz at July 27, 2009 10:09 AM

And look, context matters, on these things. It's not just that a particular act is legal in Rhode Island; rather, a particular act that is illegal just about everywhere else is legal in Rhode Island. An industry that is defined, globally, as a criminal enterprise finds respite in our state.

Is it your view that that has no deleterious effect on every other resident of the state?

Posted by: Justin Katz at July 27, 2009 10:29 AM

Justin, I agree with Dan on this. You can't legislate morality. There's a reason that prostitution is known as the oldest profession. Even Christ hung out with a hooker. And though it may be that most every country/state bans it, it still occurs.

Drugs, same thing; make them legal and you eliminate half the income for organized crime and gangs. I smoked pot and worse when I was younger. Did I deserve to go to jail? No. And all arresting me would have done is make some lawyer's bottom line better while costing the state money. And if your child used drugs and was caught, wouldn't you do everything you could to keep them out of jail?

The point is that if people want to behave in ways that are damaging to themselves, society can't stop them.

An excellent example is my 18-year-old stepson who went through high school with what had to be an almost conscious desire to fail. Nothing his mother or I did would deter him from that path. So we told him that when his peers graduated he was out the door, no matter what. He was shocked when we followed through.

When he comes back in a year, he has to have a job and pay rent. That rent will be less if he's going to school, but there's no more free lunch.

Posted by: andrew at July 27, 2009 10:59 AM


Not sure how you got to mentioning a person’s ideological or religious choice. Is anyone advocating becoming more like China? But there are lines to be drawn. Do you suggest that content should not be regulated at all? Should Southpark be on national TV during primetime? Should there be any standards of language/content since there is always the option to ‘turn off’? As far as SSM, Justin will tell you I am not your typical anti-SSM, but legally allowing people to marry animals, incest or polygamy does not affect my marriage and it can be argued does inherent harm. But I feel there are legit reasons to not support any of those. Also, the presence of religious symbols does not do inherent harm to others but there are many liberals who want to remove them from public view on the basis or separation of church & state. Many laws and regulations exist in lieu of inherent harm. Laws result in impose choices on others – sometimes in direct ways such as speed limits, sometimes indirectly such as taxes to support things which some may disagree with. Many laws are considered preventative – such as seat belts.

My point is that the “inherent harm” line is not as straight forward as it is made out to sound.

Also, I want to share my appreciation of the Dan’s thoughtful and well-reasoned response.

Posted by: msteven at July 27, 2009 4:48 PM

Andrew has an interesting point. And I agree that morality cannot successfully be legislated. But it is possible to encourage moral behavior through legislation – or depending on how one chooses to look at it, immoral behavior can be discouraged. This are current examples such as the government encouraging opposite sex couples to marry (and discouraging divorce) to tax benefits for donating to charity to sin taxes on products such as alcohol and tobacco.

In the context of drugs and prostitution, I do believe they are worthy of government discouragement. I feel there is enough evidence that while they may not result in inherent harm on a case by case basis, that they are they ultimately harmful to society. I know people can and have made the same argument about guns. Again, I draw a line between the use of guns for sport/entertainment and those automatic weapons whose only purpose is killing humans efficiently.

You are correct that society, legislature or judiciary cannot prevent people from behaving in ways that damage one another. But that does not mean it should not attempt to encourage or discourage appropriate behavior. Of course there are lines to draw as to what behaviors should be discouraged/encouraged and to what degree. But, in my view, governments have some role in this. Maybe this eliminates my membership in the libertarian party.

Posted by: msteven at July 27, 2009 9:57 PM

Andrew, where did you come across this notion that Christ hung out with a hooker? I surely hope you aren't refering to the popular but misguided myth about Mary Magdalene, because nothing whatsoever in the Bible suggests she was ever anything but a virtuous woman.

Posted by: Sagamore at July 28, 2009 1:02 AM
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