The Ethics of Prostitution (Part Three)

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(Part One, Part Two)

This is third part in my ongoing series about the ethics of prostitution. As per the previous two entries, this one continues my odyssey through Ole Martin Moen’s article “Is Prostitution Harmful?”. Assuming I don’t wear myself out first, I’m hoping to eventually get to some critiques of Moen’s piece, but for the time being I remain focused on it alone.

To briefly recap the previous two entries, Moen is arguing that there is nothing particularly objectionable about prostitution. To be more precise, he is arguing that prostitution is not harmful, at least no more so than casual sex. Since most people don’t think the later should be prohibited or restricted, we have no good reason to think that the former should be as well. To defend this basic thesis, Moen critiques nine arguments for the harmfulness of prostitution. So far, we’ve looked at six of these arguments. Today, we look at the remaining three.


1. The Selling One’s Body Argument
Prostitution involves the sale of one’s body. This is troubling to many people. But let’s try to be clear about this. There are at least three things we could be mean by the phrase “selling one’s body”:

Complete Transfer: The sale is much like that of any other piece of property. The seller transfers the property (in this case their body or some part thereof) to the buyer, and the buyer thereby acquires total ownership and control over that body.

Unrestricted Rental: The body, or some part thereof, is rented to the buyer for a certain period of time, within which the buyer can do with that body as he or she pleases (i.e. there are no restrictions on usage within the rental period).

Restricted Rental: The body, or some part thereof, is rented to the buyer for a certain period of time, within which there are restrictions on what the buyer can or cannot do with the body.

Moen argues that the kind of sale taking place in prostitution is of the third type: the client gains temporary access to a particular set of bodily services (usually negotiated in advance). It is not complete transfer, nor is it unrestricted rental. It is true, of course, that some people are sold into sexual slavery, and that prostitutes can be abused and assaulted in their course of work. But in the former case, it is the slavery itself that is objectionable not just the sexual aspect, and in the latter case no plausible permissive regime would tolerate abuse and assault of prostitutes. Again, this is because those things are objectionable in and of themselves. Thus, when we talk about whether prostitution should be permitted, we are only really talking about restricted rental of one’s body.

Clearly, some people think that even this kind of restricted rental is harmful. They would have to make the following argument:

• (33) If an activity involves the restricted rental of one’s body, then it is harmful.

• (34) Prostitution involves the restricted rental of one’s body.

• (35) Therefore, prostitution is harmful.

The problem is that once you spell the argument out in this more precise manner, its motivating principle looks somewhat dubious. Lots of perfectly acceptable businesses and trades involve the restricted rental of the body. Moen gives the examples of “dancers, masseuses, sumo wrestlers and football players”, each of whom temporarily rents their bodies in return for some economic reward, and some of whom are lauded and respected for doing so. Why should prostitution be viewed any differently?

• (36) There are many perfectly acceptable, perhaps even laudable, occupations that involve the restricted rental of one’s body.

Perhaps the problem is that the principle is being stated in too general a form? Perhaps the problem is not with the restricted rental of the body as a whole, but rather the restricted rental of some specific part of the body? In the case of the prostitute, the rental covers particularly intimate body parts (genitalia and other orifices). This makes the prostitute quite unlike the masseuse or the football player.

• (33*) If an activity involves the restricted rental of one’s intimate bodily parts, then it is harmful.

• (34*) Prostitution involves the restricted rental of one’s intimate bodily parts.

• (35) Therefore, prostitution is harmful.

The term “intimate bodily parts” is deliberately vague. Obviously, it encompasses the genitalia, but given the range of sexual activities and proclivities out there it must encompass more than that. Fortunately, the precise scope need not concern us too much here. We can try to deal with paradigmatic organs and see whether the principle (33*) applies to them.

Again, we have some possible counterexamples. Nussbaum gives the hypothetical of a colonoscopy “artist”: a person who rents out his or her colon to medical engineers so that they can design more effective and comfortable colonoscopy equipment. If that isn’t paradigmatic enough for you (since it doesn’t involve the genitalia), you could also imagine a woman who rents out her body so that more effective and comfortable cervical smear testing equipment could be designed. To be sure, both professions would be odd. But is there anything morally troubling about them? Would the participants really be harmed? The suggestion from Nussbaum and Moen is that they wouldn’t be. In which case, it’s difficult to see why prostitution should be viewed differently.

• (37) There could be acceptable, perhaps even laudable, occupations that involve the restricted rental of intimate bodily parts (e.g. Nussbaum’s hypothetical colonoscopy artist, or my hypothetical cervical smear test model.)

Of course, these arguments focus purely on the “bodily” aspect of prostitution. Could it be the combination of the intimate bodily “transactions” with certain mental states that makes prostitution harmful? That’s what the final two arguments try to claim.


2. The Habitual Faking Argument
Here’s an interesting thought: prostitutes may have to consistently fake sexual responses (excitement, enjoyment, willingness etc.) in order to succeed in their profession. Could it be that this habitual faking is psychologically harmful?

• (38) If an activity requires habitual faking, then it is harmful.

• (39) Prostitution involves habitual faking (of sexual responses).

• (40) Therefore, prostitution is harmful.

There is some prima facie plausibility to the notion that habitual faking is harmful, or certainly suboptimal. People are often concerned with maintaining an authentic personality or self, and habitual faking would seem to undermine that. But, still, there are problems with the argument.

For starters, it’s not clear that premise (39) is true. At least, not strictly speaking. A prostitute may not need to feign sexual interest or excitement for every client; and it’s possible that some may even authentically enjoy the process. But leave that to one side since some faking will probably be required.
The main issue is with premise (38). It would seem to be vulnerable to counterexamples. Moen considers the case of acting. Professional actors often have to “fake” emotional and psychological states in order to succeed at what they do, and they have to do this on a routine, day-to-day basis. Some go to great extremes. Consider the multiple Oscar-winner Daniel Day Lewis, who is renowned for his ability to completely embody the character he is playing. This involves “faking” an alternative persona. Are we to believe that he is harmed by this process?

• (41)There are acceptable, even laudable, professions that require habitual faking, for example: acting.

I should add: the argumentation here is a little bit weak. Ending on a rhetorical question is never a great idea: it could be the case that actors are harmed by this kind of habitual faking. I’ve never seen a study done on this though. In any event, I guess the point would be that even if acting was harmful in this manner, it still shouldn’t attract stigma or censure. (This highlights the problems with Moen’s structuring of every argument in terms of harmfulness).

Another point to bear in mind here is that the very first argument that Moen dealt with in his article was about psychological harms. There, he freely conceded that prostitutes are psychologically harmed, but responded by saying that there was no clear evidence to suggest that this harm was caused by the selling of sex. Rather, he suggested that the harms could be caused by social taboos, and gave the example of homosexuality to illustrate his point. Well, if we were to return to that argument for a moment, and accept the evidence that prostitutes suffer from more psychological problems than those in other profession, might it not also be worth considering the hypothesis that this harm is caused by habitual faking? Again, I don’t know of any research on this, but it seems like it could be valuable. And if a plausible psychological mechanism was uncovered linking habitual faking to psychological harm, we might need to revisit the argument.


3. The “Selling One’s Soul” Argument
The preceding response to the habitual faking argument claims that there is nothing intrinsically bad about habitual faking. But maybe, once again, that misses the point. Maybe it is the exceptionally intimate nature of the sexual exchange, and the mental states that accompany that exchange, that is the problem? This is the message underlying the “selling one’s soul” argument.

The “soul” of course is a faintly mystical notion, but it can be cashed out in more plausible and concrete terms. Suppose we say that “soul” is the term used to refer to one’s deepest values, beliefs, desires and character traits. Then, we could argue that prostitution requires the handing over of one’s soul to another for a fee. And given the importance of the soul, so understood, to one’s sense of self and well-being, we could argue that this is a bad thing. The analogy can be drawn with friendship, which also involves an intimate exchange between two “souls”. Many would argue that this kind of intimate exchange cannot be bought and sold, and indeed that if it is bought and sold the unique value of the bond is undermined.

• (42) If an activity involves the commodified exchange of one’s deepest values, beliefs, desires and traits, then it is harmful.

• (43) Prostitution involves the commodified exchange of one’s deepest values, beliefs, desires, and traits.

• (44) Therefore, prostitution is harmful.

Moen has two problems with this argument. The first is that premise (43) assumes the strong significance view of sex (see part one LINK). In other words, it assumes that sex must be an emotionally enriched, romantically significant act, if it is to be morally acceptable. But if we accept the permissibility of casual, no-strings attached sex, then this is a bit of a non-starter.

Premise (42) is also dubious. As Nussbaum has pointed out, there are other professions that involve the commodification of one’s deepest values, beliefs, desires and traits, and they are not deemed harmful. She gives the example of a philosophy professor, who is paid money to write and think about his or her deepest values and beliefs. The professor will find that others encroach upon this set of values and beliefs in the course of her work. She will be challenged and critiqued by others; students will demand her to explain more about these values and beliefs to them, and maybe misunderstand or misconstrue what they are. Arguably, these values and beliefs are more fundamental than those relating to sex and sexuality, and yet we don’t have a problem with their commodification.

• (45) This assumes the strong significance view of sex, but if casual sex is permissible, the strong significance view is false.

• (46) There acceptable, even perhaps laudable, professions in which people commodify their deepest values, beliefs, desires and traits, e.g. Nussbaum’s Philosophy Professor example.

4. Conclusion
Okay, so that brings us to the end of Moen’s article. As we have seen, he doesn’t think much of the typical arguments profferred against prostitution. I have noted some weaknesses in his analysis as I went along, particularly in relation to his treatment of objectification, exploitation and male dominance. Still, I’m inclined to accept the basic position: there is nothing intrinsically objectionable about the commodification of sexual services.

Two final points to finish up on. First, as noted way back in part one, Moen doesn’t think that establishing the harmfulness of prostitution will settle questions in relation to its permissibility. Instead, he thinks that any harms (and he accepts that, as currently practiced in many parts on the world, there are harms) associated with prostitution would need to be weighed against its potential benefits. There are other professions that carry risks and yet we do not stigmatise those involved in them (he gives the interesting fact in New Zealand, where prostitution is legal, it is deemed less risky than being an ambulance nurse LINK).

Second, Moen is sensitive to the possibility that his arguments could be said to assume an overly utopian vision of sex work. In particular, that they assume that many of the negative features currently associated with prostitution could be easily removed by some alternative system of regulation. But he thinks this charge can be rebutted. He thinks his arguments do not assume perfect information or rationality, and they often rely on plausible historical analogies. A shift in attitudes akin to that undertaken in relation to slavery, racism, or homosexuality might be all that is required to improve the lot of sex workers. If such shifts have been possible in the past, why wouldn’t they be possible in the future?

The Ethics of Prostitution (Part Two)

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(Part One)

This is the second part of an ongoing series about the ethics of prostitution. Currently, we are working through the arguments in Ole Martin Moen’s article “Is Prostitution Harmful?” which appeared in the Journal of Medical Ethics in 2012. Eventually, we’ll be looking at some criticisms of that article, but for the time being we are focusing solely on what Martin has to say for himself.

Part one looked at Moen’s argumentative strategy. As we saw, he is claiming that, despite what many people think, there is nothing about prostitution that warrants its moral censure or prohibition. In other words, there is nothing in the commodification of the sexual act that transforms it from something that would otherwise have been permissible and acceptable into something that it not. To defend this conclusion, Moen addresses nine objections to prostitution. We have already worked our way through the first three. We will now work our way through three more (I was going to do all six, but it ended up being too long).

Before we get underway, I need to clarify something that came up in the comments to part one. Moen couches all of the objections to prostitution in terms of harmfulness. He does so because he thinks that beliefs about the harmfulness of prostitution drive other debates about the correct social and legal attitude towards prostitution. In other words, it is because people think prostitution is harmful that they think it warrants social disapproval, moral censure, criminalisation and so on. But Moen doesn’t really engage with those other debates in his article. Why not? Because his whole argument is that prostitution doesn’t meet the threshold of harmfulness that would be needed to get into those debates. (There is a slight exception to this at the end of his article, we’ll talk about it the next day).


1. The Exploitation Argument
Stereotypical images of prostitution tend to encourage the belief that prostitutes are exploited. This provides the impetus for the following argument (numbering is continuing from part one):

• (17) If an activity involves (economic) exploitation, it is harmful.

• (18) Prostitution involves (economic) exploitation.

• (19) Therefore, prostitution is harmful.

I have put “economic” in brackets to clarify that what we are really talking about here is unjust enrichment at the expense of another. That is to say: a situation in which one (or more) actors unduly profit from the work of another. There may be other senses of “exploitation”, but we are not considering addressing them here.

So what are we to make of the argument? Moen grants premise (17). That leaves premise (18) as the remaining bone of contention. Is it true that prostitutes are alienated from the true “value” of their work? Again, that’s certainly part of the stereotypical image: the prostitute as an impoverished woman, abused by a pimp and receiving only a fraction of the pay she deserves. But this stereotype might be misleading.

First, under a classic Marxist analysis, most workers are exploited and harmed; there is nothing special about prostitutes in this regard. Assuming we don’t want to take that Marxist approach, the question is really whether prostitutes are more exploited that the average worker. And here the picture is rather more complex. Indeed, one could argue that prostitutes have a better deal than most workers.

One example of this is the existence of luxury escorts or high-end call girls, many of whom earn considerable sums of money from each client. A famous example of this would be Ashley Dupre, the call girl implicated in the Eliot Spitzer scandal. According to reports at the time, she received $4,300 for one “assignation” (though $1,000 of this was a deposit for future services), which is a considerable sum for one day/night’s work. Well above the average income.

• (20) There can be luxury prostitutes who earn above-average incomes.

Even if we move away from the elite world of luxury escorts, to the seedier underbelly of the profession, we find that the evidence does not support the exploitation hypothesis. Lena Edlund and Evelyn Korn, for example, start their analysis of prostitution with the puzzling observation that prostitutes have an average yearly income that is between two and six times that of other women in low skill, labour intensive jobs (which are viewed as the realistic alternative form of occupation). Similarly, freakonomicist Steven Levitt, and his co-author Sudhir Alladi Venkatesh, found that on-street prostitutes in Chicago earn between $25-30 per hour. This was four times the minimum wage.

• (21) Low-end prostitutes still earn incomes that are multiples of workers in low skill, labour intensive industries.

What about the pimps? Isn’t it true that they take a significant portion of the prostitutes earnings? Again, the reality doesn’t seem to match the stereotype. Levitt and Venkatesh found that those working under a pimp earned more than those who didn’t, despite working fewer hours and performing fewer “tricks” (as they are known in the business). Edlund and Korn point to evidence (from the mid-1990s) suggesting that less than 6% of L.A. prostitutes share income with a pimp; and evidence from Malaysia showing that only 2% of income is shared with pimps. When you compare these figures to the disparity between a young associate lawyer’s billable hours and what he or she actually earns, you’d have to wonder who is really being exploited? (Admittedly, the analogy is inapt since lawyer’s can earn more later in their careers, have longer working lives, and receive benefits-in-kind not typically available to prostitutes, but there are other analogies that are closer.)

• (22) Prostitutes who work under pimps are exploited.

• (23) The evidence doesn’t seem to back this up: relatively few on-street prostitutes work under pimps, and those that do seem to earn more than those that don’t.

So the upshot here is that prostitutes do not seem to be economically exploited, at least no more so than workers in other professions. Two worries: first, the evidence might be limited to particular localised prostitution markets; conditions might vary considerably from place to place; and second, the wage premium earned by prostitutes may, in part, be a function of how risky and stigmatised the profession currently is. If prostitution stopped being taboo, would the wage premium be so significant?

2. The Male Dominance Argument
Some feminists claim that prostitution constitutes, expresses and perpetuates male dominance:

• (24) If an activity involves male dominance, it is harmful.

• (25) Prostitution involves male dominance.

• (26) Therefore, prostitution is harmful.

Granting premise (24), Moen looks at an argument from Carole Pateman in support of (25). Now, I’ll have to confess that even after reading Pateman’s article, the argument isn’t particularly lucid to me (LINK). But I think it’s something like this. The market for sexual services is an expression of a particular kind of masculinity, one that is induced in/imbibed by men at an early age. This brand of masculinity emphasises the separateness of the male from other opposing forms (especially that of the female). The Hegelian model of the master-slave suggests those who conceive of themselves in this manner constantly seek to re-emphasise their separateness through dominating others. Hence, the male demand for sexual services is part of the attempt to sustain separateness and domination.

There would seem to be many problems with this. First, it’s not true that all prostitution involves heterosexual male-female transactions, and to that extent one wonders whether prostitution always and everywhere reinforces male dominance. Still, one can leave this to one side since it is still probably true that the vast majority of prostitution is of the heterosexual male-female variety. Even then, however, one wonders about Pateman’s argument. Moen calls it a “gross overtheorisation” of why it is that men demand sex, and one that is only effective against those who are motivated by such a desire for domination.

I can’t even begin to map out the structure of Pateman’s argument (so I won’t try), but I suspect she might reply that the motivations do not need to be explicit; they can be entirely implicit, in which case it’s not that easy to dismiss it. Furthermore, I suspect that there are more lucid and compelling versions of the male dominance critique. For example, the speech act arguments I looked at previously in relation to pornography suggest various mechanisms whereby a culture of male dominance and female suppression can be reinforced. I don’t know that they are that plausible, but they are certainly much easier to follow than Pateman’s suggested psychoanalytic/Hegelian mechanism. It might be worth analysing those kinds of argument too.

To be fair, Moen also briefly comments on work by Debra Satz which argues that prostitution degrades women, but he rejects this on the grounds that it collectivises and essentialises women, and on the grounds that the reason why prostitution is degrading is still left opaque. Nevertheless, I think there is more that could be said in relation to the male dominance critique. Indeed, Satz herself has expanded on it in her recent book Why Some things Should not be for Sale?, which I might cover on another occasion.


3. The Economic Dominance Argument
Rather than being an expression or perpetuation of male dominance over women, it could be that prostitution contributes to various forms of economic dominance:

• (27) If an activity involves economic dominance, then it is harmful.

• (28) Prostitution involves economic dominance.

• (29) Therefore, prostitution is harmful.

The key to this argument is understanding what is meant by economic dominance. Moen identifies three different ways in which to cash out the concept, which results in three different forms that the economic dominance argument could take.

The first is to argue that dominance is inherent to the roles of buyer and seller. One could say that the seller must always give something up in order to gain from the buyer; and so the buyer is in the dominant position because it is his willingness to pay that determines whether or not a valuable transaction will take place. But this first version of the argument is far too broad, and not worth considering in any real depth. After all, if this were true, every economic transaction would be objectionable. This seems to stretch the bounds of credulity. Furthermore, it is counter-intuitive: to claim that it is always the buyer that has the upper-hand. It makes concerns about consumer welfare and consumer interests seem bizarre, when in reality they are not.

The second form that the argument could take is slightly more plausible. It is to claim than any transaction involving a (relatively speaking) rich buyer and a poor seller (or vice versa) involves economic dominance, and is harmful for that reason. That gives us the following:

• (27*) If an economic transaction involves an asymmetry between the wealth of the buyer and the seller, it is harmful.

• (28*) Prostitution involves richer buyers and poorer sellers.

• (29) Therefore, prostitution is harmful.

Of course, spelling out the argument in this manner reveals some problems. For starters, premise (27*) looks somewhat implausible. If it really were true, then a vast array of economic transactions would be deemed harmful. Are we going to say that every time the wealthy businessman buys a newspaper from his local cornershop, the owner of the cornershop is harmed? Or that every time I buy a laptop from Apple computers, I am harmed? Surely not. Indeed, the classic economic analysis is that these are mutually valuable exchanges.

Premise (28*) is somewhat implausible too. As we saw earlier, even low-end prostitutes earn more than other low-skill, labour intensive workers. And yet presumably their clients might occasionally come from this pool of workers. Are we going to flip things round and say that the prostitutes harm their clients in these cases? Again, surely not.

• (30) The claim that every asymmetrical economic transaction is harmful is implausible: counterexamples suggest that a richer buyer does not necessarily harm a poorer seller; nor that a poorer buyer is necessarily harmed by a richer seller.

• (31) Prostitutes are not necessarily poorer than their clients: evidence suggests that they earn more than comparable workers in other industries. Their clients may be drawn from the pool of workers in these industries.

That brings us to the final version of the dominance argument. This one doesn’t focus on the relative buying power of the participants to the transaction, but rather on their absolute buying power, particularly that of the prostitute. If someone is poor, in absolute terms, then they will often have to act of economic desperation, doing anything they can to secure the goods and services they need to survive. So if prostitutes are poor, in absolute terms, then one could argue that they are harmed.

• (27**) If an economic transaction involves a seller who is poor in absolute terms, then it is harmful.

• (28**) Prostitution involves a seller (the prostitute) who is poor in absolute terms.

• (29) Therefore, prostitution is harmful.

We already have the response to this, of course. Prostitutes are not necessarily going to be poor in absolute terms. Furthermore, this argument is not really about prostitution in particular but about poverty in general. Certainly, we can agree that poverty is a bad thing, whenever and wherever it arises, but it is dissociable from prostitution.

• (32) Prostitutes are not necessarily poor in absolute terms: there can be high-end prostitutes with above average incomes, and even low-end prostitutes earn more than the minimum wage.

So once again, we have an objection to prostitution that is somewhat lacking. That brings us to the end of this particular post. In the next post, we’ll pick up the thread again by looking at the three other objections to prostitution with which Moen deals.

The Ethics of Prostitution (Part One)

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Is there something ethically wrong with exchanging sexual services for money? Many people frown upon it. Traditional, conservative moralists view it as a taboo, (some) feminist scholars think that it exemplifies and contributes to a culture of male domination, and even those in favour of liberalisation and decriminalisation tend to stigmatise (or look down upon) those involved in the sex trade.

But should this be the case? Should prostitution attract moral censure? In this series of posts I want to address these questions. I do so by looking at Ole Martin Moen’s article “Is Prostitution Harmful?”, which appeared in the Journal of Medical Ethics in 2012. I will also look at some critiques of Moen which have appeared in the same journal.

Moen’s article has a structure and style of argument that I find appealing. Starting with some basic assumptions about the nature and quality of sexual activity, he makes a prima facie case for the permissibility of prostitution. He then systematically responds to nine counterarguments. This makes it easy to parse, and easy to map the argumentative structures involved. This is something I’ll do as I work my way through the piece.

In the remainder of this post, I’ll look at Moen’s prima facie case for permissibility, and three of the objections to his view.


1. Starting Assumptions about the Nature of Sex
Building upon some work done by David Benatar, Moen identifies two general views one could have about the ethics of sexual activity:

The Strong Significance View: Sex is only permissible when it is the expression of romantic love (i.e. when it has romantic significance).

The Weak Significance View: Sex is permissible when it is an expression of romantic love, and also, sometimes, when it is not.

The weak significance view embraces the permissibility of casual sex. That is: ephemeral (or ongoing) sexual hook-ups between consenting adults with a minimum of emotional or psychological baggage. The strong significance view rules these out. If we assume that the weak significance view is correct, then we should also embrace the permissibility of (at least some types of) prostitution. Or so, at least, Moen argues. For if sexual activity is unobjectionable when it is without romantic significance, then what is the harm in the commodification of such activity? What can money add to the transaction that transforms it into something worthy of moral censure?

“Lots”, you’ll cry. But be patient, we’ll get to the standard objections in a moment. For now, we’ll focus on the prima facie claim. For my part, I think Moen’s starting assumptions touch upon something important, something I’ll call the intrinsic unobjectionability of sex. This is the notion that, in and of itself, the activities involved in most sexual practices are morally unobjectionable (certain extreme forms of S&M might be special cases, requiring independent consideration). This should be unsurprising given that sex is often deemed to be an important, and valuable part of human life.

What makes a moral difference are the properties that are associated or combined with these acts. These come in two main varieties: (a) the beliefs and attitudes of the participants to the acts; and (b) the downstream consequences or effects of the acts. Thus, for example, rape and sexual assault are objectionable because one (or more) of the parties to the sexual activity lacks consent. This is what transforms what is otherwise acceptable into something that is unacceptable. In a similar vein, sexual activity that is carried out with the purpose (and effect) of humiliating or exploiting someone for gain is objectionable (e.g. as in sexual blackmail through the release of sex tapes).

If we accept this basic picture of sexual activity, we have a model for how to argue and reason about the ethics of sex. In particular, we know not to look directly at the sexual acts themselves (except in the extreme cases mentioned above) but rather to the extrinsic properties that can be associated with those acts. Are these objectionable? Are they dissociable?

In the case of prostitution, we are always looking the combination of sex with a monetary (or other economic) exchange. We are wondering whether the combination of the two is enough to transform what is otherwise unobjectionable into something that is. Moen wants to argue that it is not, that adding the economic exchange to sex makes no more difference than adding an economic exchange to other unobjectionable activities. Is he right? Let’s see.


2. The Psychological Harm Argument
One of the simplest argument against prostitution points to its deleterious psychological effects. Surely, we might say, there is something emotionally damaging about constantly selling sexual services? The argument can be run like this:

• (1) If an activity leads to psychological problems, then it is harmful.

• (2) Prostitution leads to psychological problems.

• (3) Therefore, prostitution is harmful.

Interestingly, that’s where Moen cuts off the argument in his article. This is because he interprets all nine objections to prostitution in terms of harmfulness. Nevertheless, the implication in his discussion is that kind of harm singled out by these arguments is sufficient to render prostitution worthy of moral censure or prohibition. Thus, one could tack on the following two premises to each of the arguments in this series:

• (4) If an activity is harmful it ought to be prohibited/deemed impermissible/attract moral censure etc.

• (5) Therefore, prostitution ought to be prohibited/deemed impermissible/attract moral censure etc.

Of course, tacking on these premises reveals a crucial weakness: not everything that is harmful is worthy of moral censure. Indeed, Moen exploits this weakness toward the end of his article when he suggests that, even if prostitution is harmful, we need to weigh the costs and benefits. It is also something he exploits here when dealing with the merits of the first part of the argument.

What then of that first? Interestingly, Moen concedes the gist of its two premises. In fact, he goes out of his way to highlight research showing that prostitutes suffer from panic attacks; eating disorders; depression; insomnia; guilt; regret; remorse; and that they have a suicide rate that is six times that of the average population.

This seems like a significant concession, but it is at this point that Moen emphasises one of his methodological constraints. Since we are asking whether prostitution is worthy of moral censure, we cannot use the fact that most people think it deserves moral censure, or the fact that these beliefs have certain consequences, as evidence in support of our view. In other words, we cannot use the fact that prostitution is stigmatised, marginalised, and driven underground as evidence in favour of its prohibition.

Moen gives the example of homosexuality. As he points out, historically homosexuals suffered from similar psychological problems (and possibly still do). But with the exception of some conservatives, no one now thinks that this is a sufficient reason to prohibit or censure the activity. Why not? Because many of the psychological problems are thought to be driven by the traditional taboo against homosexuality: it is because people stigmatise and censure that activity that those who engage in it feel guilty, shameful etc etc.. The arrow of causation is the reverse of what we was traditionally believed.

Moen is clear that he is not claiming that homosexuality and prostitution are perfect analogues. Far from it. All he is saying is that the mere fact that a particular kind of sexual practice is correlated with a particular set of psychological problems is not enough to support the desired conclusion. We’ll have to point to some plausible psychological mechanism that explains those correlations, and we may find that those mechanisms point in the opposite direction from what we initially believed.

How best to interpret this objection? I think it’s best understood as a rebuttal to premise (2), above. It challenges the claim that prostitution actually “leads” to psychological problems:

• (6) The mere fact that prostitution is correlated with psychological problems is not enough to show that prostitution causes those problems. It could be that current social attitudes drive the problems, not the activity itself (support: homosexuality example)

This is illustrated below.

3. The Correlation with Danger Argument
With certain exceptions, prostitutes and prostitution have an unglamorous reputation. The stereotypical image is that of a poverty-stricken, drug-addled woman who sells sexual services out of economic desperation, thereby exposing herself to all manner of risks. This stereotypical image suggests that prostitution may be correlated with more than mere psychological harms:

• (7) If an activity is dangerous (i.e. carries high risks) it is harmful.

• (8) Prostitution is dangerous.

• (9) Therefore, prostitution is harmful.

Moen’s response to this argument follows a pretty much identical pattern to what was just outlined. Again, he offers significant concessions to the second premise. He highlights research suggesting that prostitutes are at a higher risk of being physically abused and assaulted; that they carry increased risks of venereal disease; and that they are more likely to be involved in drug abuse and criminality.

But are these correlations ethically significant? The problem, once again, is that it could be the social (and oftentimes legal) prohibition of prostitution that gives rise to the increased risks, not the prostitution itself. Moen uses the example of homosexuality once more: when that was an underground, and socially stigmatised activity, it carried increased risks too, but that doesn’t mean it warrants censure.

One could argue that legal prohibition, in particular, makes prostitution a high risk activity. In many countries, prostitutes cannot organise into labour unions, legally work in brothels, hire security agencies to protect their workplaces, have standardised working contracts, be subject to health and safety inspections, and so on. Why not? Because their work is criminalised. Arguably, if one removed those legal barriers you would remove some of the risks.

This is a rebuttal to premise (8):

• (10) The mere fact that prostitution is correlated with higher risks is not sufficient to show that it causes those risks. It could be that social and legal prohibition of prostitution is what makes it a high risk activity.

I agree with this idea in principle, though I am aware of some scholarship which suggests that the mainstreaming of prostitution is difficult, and far from a panacea. Is this because the commodification of sex is, itself, harmful, irrespective of its broader consequences? That’s what the next argument tries to suggest.

4. The Objectification Argument
A classic complaint is that prostitution involves the morally problematic objectification of the prostitute. Is this true? Well, as Moen points out there are (at least) two different ways of understanding the term “objectification”. The first coming from the work of Thomas Mappes; the second from the work of Howard Klepper:

Narrow Objectification: Arises whenever a person is dealt with by force or fraud, and is manipulated and disposed of at the will of another.

Broad Objectification: Arises whenever a person is treated as a means to an end, not as an end in him/herself (Kantian objectification).

Give these two different senses of objectification, there are two different ways in which to run an objectification-based argument against prostitution. The first would be in terms of narrow objectification.

• (11) If an activity involves narrow objectification (i.e. force, fraud, manipulation, disposal) it is harmful.

• (12) Prostitution involves narrow objectification.

• (13) Therefore, prostitution is harmful.

Moen readily concedes premise (11), but challenges premise (12). Certainly, there is no reason to think that prostitution necessarily involves force, fraud, manipulation and disposal. One could imagine someone freely and knowingly entering into a contract to sell sexual services, without such things being present. Furthermore, force, fraud, manipulation and disposal are problematic wherever they arise. They would render many other contracts and economic exchanges morally problematic too. But that doesn’t mean that those exchanges are inherently problematic. Why think the situation is any different for the sale of sexual services?

• (14) Prostitution need not involve narrow objectification: a person could freely and knowingly enter into a contract to sell sexual services, without being the victim of force, fraud, manipulation or disposal.

Then we have to consider the broad objectification argument:

• (11*) If an activity involves broad objectification (i.e. instrumentalising another person), it is harmful.

• (12*) Prostitution involves broad objectification.

• (13) Therefore, prostitution is harmful.

Moen argues that both premises are questionable here. It has long been pointed out that Kantian-style objectification is not always and everywhere harmful. We instrumentalise one other constantly. Moen gives the example of the newspaper delivery boy (fast becoming a cultural artifact), who deliver his daily newspaper while he is still asleep. Clearly, Moen instrumentalises the boy in this economic transaction: he only cares about getting his paper, he does not care about the person who does it. But is this really harmful to the boy? It seems implausible. Other examples abound.

Furthermore, it’s not clear that prostitution necessarily involves broad objectification. The sexual act often has a strong element of reciprocity to it: the pleasure I derive from it is at least partially constituted the pleasure that my partner derives from it. It could be that prostitution incorporates this reciprocity: the pleasure that the client derives from it might in part be constituted by the pleasure the prostitute derives from it (or at least from the belief that he/she is deriving pleasure from it - more on this later). As Moen puts it, it could be that prostitutes are far less fungible than other service providers. The client is likely to care a lot more about the particular prostitute with whom he is having sex, than Moen cares about the particular boy that is delivering his paper.

So we have rebuttals to both premises:

• (15) It is not always harmful to instrumentalise another person; indeed, we do this routinely without harming those we instrumentalise (e.g. newspaper delivery boy).

• (16) Prostitution is not necessarily instrumentalising: arguably, prostitutes are far less fungible than other service providers because the clients care about whom they are having sex with.

One thing I will say about all this is that there accounts of objectification that Moen passes over in his analysis. For example, Martha Nussbaum, in her famous article about the topic, identifies seven different aspects to objectification, ranging from fungibility to instrumentalisation to denial of subjectivity. These seven forms overlap with some of the concerns addressed by Moen, and I’m reasonably confident that similar responses could be offered to each of them. Nevertheless, their existence within the literature suggests that a more nuanced treatment of the objectification argument is possible.

That brings us to the end of the third objection. So far, Moen thinks that the prima facie defence of prostitution is still standing. Let’s see if anything changes the next day, when we look at the remaining six objections to prostitution.

Plea Bargaining and the Signalling Problem (Part Two)

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(Part One)

This series of posts is about game theory, signalling and plea bargaining. It is based on Russell D. Covey’s paper “Signaling and Plea Bargaining’s Innocence Problem”. The problem addressed by Covey’s paper is this: how can a defendant, with private knowledge of their innocence, credibly signal this information to a potential prosecutor during pre-trial plea bargaining? Covey proposes an answer based on an analogy with a card game.

We ran through the basic elements of the card game the last day. There are two players: H (the house) and G (the Gambler). H deals four cards, face-down, onto the table in front of G. The cards are dealt at random, but two are red and two are black. If the bottom card is red, then G gets to keep his money. If the bottom card is black, he loses $20. Consequently, G’s expected loss is $10, and conversely H’s expected gain is $10. But dealing out is costly to H, so H is willing to accept 50% of his expected gain from G prior to dealing out the cards. If G is rational, he should accept this offer.

We finished up the last day by adding a twist to the game — private information. We allowed G to look at the top card, but not to show it to H. Doing so changed G’s expected losses. For example, if the top card was black, his expected loss was $6.66 not $10. But could G do anything with this information? It was suggested that he could use it to negotiate a more favourable deal with H: if H is willing to accept 50% of his expected gain in order to avoid dealing out costs, then he should be willing to accept $3.33 whenever G sees a black card on top. But the reality is that G could never convince H that the top card really was black. For even if it was red, G would have an incentive to pretend that it was black, and H wouldn’t be able to tell the difference. This is somewhat analogous to the situation confronting the innocent defendant in the plea bargaining scenario.

What we’re going to do now is consider another variation of the game that allows for G to credibly signal his private information to H. This is called the “Sub-Wager” version of the game. We’ll then see what implications this has for plea bargaining.


1. The Sub-Wager Version of the Card Game
The subwager version of the card game changes what was originally a one-step game into a two-step game. It works like this:

Step One - Private Information: H deals four cards face-down onto the table, two red, two black. G gets to look at the top card, but cannot show it to H. G holds the top card to one side. A third party, T, then looks at the bottom card, and agrees to reveal its identity to G and H should that be needed once the second phase of the game is completed.

Step Two - The Subwager: H makes G a new offer, which he can either accept or reject. If he rejects the game continues as previously described. If he accepts, then the remaining three cards are shuffled and the identity of one of them is revealed. If that new card turns out to be red, H must settle the game for much less than what he was originally demanding (say $1.25). But if that card turns out to be black, then H can settle the game for much more than he was originally demanding (say $10).

Should G accept the subwager? Well, it all depends on what he saw when he turned up the top card during step one. If the top card was black, then he knows that there is 0.66 chance that the card revealed during the subwager will be red. Those odds look pretty good. Conversely, if the top card was red, then he knows that there is a 0.66 chance that the card revealed during the subwager will be black. That’s not so good. Here then are G’s expected losses from the subwager under both permutations (note: this might look confusing but bear in mind that G’s expected loss in both instances is the probability weighted sum of the two possible outcomes of the subwager.)

G’s expected loss from subwager if top card was black = - [0.66($1.25) + 0.33($10)] = - $4.16

G’s expected loss from subwager if top card was red = - [0.33($1.25) + (0.66)($10)] = - $7.09

The upshot of this is that if the top card was black, G has a strong(ish) incentive to accept the subwager: his expected loss from doing so ($4.16) is less than what he loses if he accepts H’s original deal ($5). Conversely, if the top card was red, he has a strong incentive not to take the subwager: his expected loss from doing so ($7.09) is more than what he loses if he accepts H’s original deal ($5).

Something interesting has happened. By introducing the subwager, H has given G a way to credibly signal his private information. G’s willingness to accept the subwager is, in effect, signalling to H that the top card was black and vice versa. H could then use this information to negotiate an alternative settlement without going through with the subwager. The signals that were previously mixed are now distinguishable.

Of course, it is not that straightforward. There is still some probability of mixed signals. One or two gamblers might be risk takers and might be willing to signal their intent to take the subwager in the hopes that this will signal to H that they saw a black card. They might hope that in doing so H will be incentivised to strike a more favourable deal with them prior to completing the subwager. But obviously this ups the risk factor. If H calls their bluff, then those Gs stand to lose much more than they would have if they accepted the original deal.

Surprisingly enough, Covey doesn’t mention this last point in his article. But he should have since it threatens to undermine his argument.


2. Subwagers in Plea Bargaining
Card games are all well and good, but how does any of this apply to plea bargaining? Well, we already know the basic analogy: H is like the prosecutor and G is like the defendant. The next step is to see whether anything analogous to the sub-wager can be introduced into the plea bargaining game. Covey thinks that something analogous can indeed be introduced. I lay out the argument first, then consider some objections.

Covey’s argument draws upon work done in relation to the right to silence. The right to silence is, roughly, the right of any putative defendant not to answer questions that might tend towards self-incrimination. The right is optional: the defendant can choose to remain silent or he can submit himself to interrogation. If he chooses to exercise it, then judges and juries will not be allowed to infer guilt from his silence. If he submits himself to interrogation, then anything he says can (and will) be used against him at trial.

Some people worry that the right to silence is too generous; that it gives guilty defendants more protection than they deserve. Why shouldn’t we be able to infer guilt from silence? Common sense dictates that the innocent man would have nothing to hide. These appeals to common sense are attractive, but as some theorists point out, they ignore the benefits that the right to silence bestows upon the innocent defendant. The existence of the right to silence actually gives innocent defendants a way to credibly signal their innocence.

How does this work? The option of submitting to interrogation is the key. If the protection of the right to silence is robust — i.e. if it really is true that guilt will not be inferred from silence — then a guilty defendant has a strong incentive not to submit himself to questioning. Why so? Well, presumably if you are guilty you are more likely to be found out if you submit to interrogation: consistently maintaining a lie is more difficult than consistently maintaining the truth. Contrariwise, if you are innocent, you will have a good chance of establishing this through the interrogation: you are telling the truth, so it’s easier to maintain a consistent story and persuade the interrogators. Thus, your willingness to undergo interrogation, coupled with the results of that interrogation, provide you with a means of credibly signalling your innocence.

You can see where this is going. Covey is suggesting that optional interrogation performs a similar function in plea bargaining. It is like the subwager from the card game. The analogy is almost direct:

Step One — Private Information: P is trying to prosecute D for a crime. D knows that he is innocent but has no way to signal this to P. P wants to avoid trial costs, so he is willing to accept D’s plea to a lesser crime. D would obviously prefer not to accept this, but it looks like a good deal: the expected loss at trial is higher.

Step Two — Optional Interrogation: To break the deadlock between them, P gives D the option of voluntarily submitting to interrogation. If he doesn’t submit, then the game continues as normal (they go to trial or D accepts the original deal). If he submits and his story holds up under robust questioning, then he has good chance of proving his innocence. If he submits and his story does not hold up under robust questioning, then this can be used as evidence against him at trial (or at later stages of plea bargaining.

So the claim is that voluntarily submitting to interrogation provides D with a means of credibly signalling his innocence. Covey provides several reasons for thinking this is true in fact, not just in principle. Experimental work done on interrogation and willingness to waive Miranda rights (i.e. right to silence) suggests that innocent suspects are more willing to submit to interrogation than guilty ones . Furthermore, data gathered from actual cases suggest that a willingness to submit to interrogation does correlate with a reduced likelihood of being charged (see: Leo “Inside the Interrogation Room” and Cassell and Hayman “Police Interrogation in the 90s”).

This is a clever argument, no doubt about it, but it has some obvious limitations. The structure of the incentives, and the power of interrogation to get at the truth, need to be delicately balanced if this is going to work. And the problem is that it is easy to upset that balance and denude optional interrogation of its signalling power. For example, if the interrogation methods are too robust — e..g. if they involve torture — then the likelihood of an innocent defendant holding up under the pressure will diminish. It will be too easy to extract false confessions. This will make interrogation too costly from the defendant’s perspective, and thereby erode the signalling advantage. Similarly, it’s quite possible that hardened criminals will be able to hold up under robust questioning. If so, their presence within the pool of willing interrogatees will spoil the value of the signal. Furthermore, if remaining silent is too beneficial (e.g. it makes it really unlikely that the prosecutor will be able to succeed at trial), then interrogation will not be an attractive option, regardless of the innocence of the defendant.

All this is to say that reality more complex than the model. But that’s nothing new. There is still much value in Covey’s model of plea bargaining. It illuminates the strategic dynamics of the plea bargaining process, and it highlights the importance of signalling within that dynamical structure. Thinking about the process in this manner, and playing with the various components of the model, is likely to be a useful undertaking.

Plea Bargaining and the Signalling Problem (Part One)

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Plea bargaining is the common practice whereby someone who is being charged with a criminal offence will agree to plead guilty to a lesser offence in order to avoid the risk of being tried for the more serious offence.

Suppose I shoot someone in the course of an armed robbery. I am arrested and charged with murder. For the sake of avoiding a lengthy and costly trial, the state prosecutor is willing to make a deal: if I plead guilty to manslaughter, she will drop the murder charge and ask the judge for a more lenient sentence. Should I accept the offer? I know the state are likely to have a tough time proving specific intent to kill at trial. Still, from my perspective, bringing the case to trial is risky: the jury might convict me for murder; and the judge might be inclined to impose a harsher sentence. I agree to take the deal.

Plea bargaining is often rational from both the prosecutor's and the defendant's perspective. The prosecutor wants to maximise the amount of punishment per unit of prosecutorial resources; trials are costly (the resources spent in one trial could be used to secure other convictions); and their results are unpredictable. Accepting a lesser plea helps to maximise convictions and minimise costs. Contrariwise, from the defendant's perspective, the goal is to minimise the amount of punishment, but, again, trials are unpredictable and pleading to a lesser offence is often the best way to minimise expected punishment.

Indeed, so complementary are the incentives of the two sides that, according to a standard rational choice/ game theoretic analysis, submitting a guilty plea is the dominant strategy, even for innocent defendants. Why? Well, the argument is somewhat intricate but, roughly, if there isn't overwhelming objective evidence of your innocence, and if the prosecutor has unfettered discretion to offer you any sort of deal (however minimal the proposed punishment), then you should make some sort of deal. There is some degree of punishment you should be willing to accept, however minimal, in order to avoid the risk of trial.

This has been referred to as plea bargaining's Innocence Problem. In his article, "Signalling and Plea Bargaining's Innocence Problem", Russell D. Covey analyses this problem using some tools of game theory, specifically tools relating to signalling theory. As he sees it, the innocence problem arises (at least in part) from the fact that innocent defendants have no way to credibly signal their innocence to prospective prosecutors. He then suggests various ways in which the signalling problem could be solved.

Over the course of this post, and the next, I want to take a look at what he has to say. As it happens, I'm not too interested in the plea bargaining aspect of his inquiry - though I have to mention it for other things to make sense. I'm much more interested in what he has to say about signalling and the problem of credibly conveying private information.

To that end, the remainder of this post is broken into two main sections. First, I provide a closer analysis of the signalling problem and its effect on plea bargaining. Second, I introduce the card-game analogy that Covey uses to illustrate some of his key claims about signalling and plea bargaining.


1. What is a signalling problem?
As humans we spend much of our lives producing and interpreting signals. They are central to our social intercourse, with language merely representing the most obvious and intricate of our signalling devices. A "signalling system" can be defined as any system with these three elements:

Message Set: A set of possible signals that could be sent through the system, e.g. “P” and “not-P”. Typically, these signals are propositions about the actual or likely state of the world.

Sender: An agent who selects one of the possible signals from the message set and conveys it to another agent (the receiver).

Receiver: An agent who must interpret the signals from the sender and assign some truth value to them (e.g. "P is true").

Obviously, the term "agent" has to be understood broadly here: not every signalling system involves actors with human levels of intelligence, foresight or awareness. Far from it. All that matters is that they are capable of making minimal "decisions", specifically that they be able to select elements from a message set and assign truth values to them. That said, the more interesting signalling systems will involve agents with somewhat complex, competing or overlapping goals.

There are many problems that can afflict a signalling system: the message set may be too minimalistic to convey the truth; the sender may not be able to "see" all the elements of the set; the quality of the signals may degrade as they are passed through the system; and so on. Nevertheless, for our purposes, all references to "the signalling problem" can be taken to refer to a scenario in which the receiver is incapable of distinguishing true signals from false signals.

A classic example of this, which I'm sure I've used before, can be found in the biblical story of Solomon and the two prostitutes. As you'll recall, the story is that both women claimed to be the mother of the same baby. They couldn't both be right, but the signals they were sending to Solomon ("I'm the true mother") were the same. He could not distinguish between them. The result was a signalling problem.

Covey's claim is that something similar is going on in the case of plea bargaining. A defendant might have private knowledge of his or her innocence, but has no way to credibly signal this to the prosecutors. Declaring innocence won't do since guilty defendants are just as likely to proclaim their innocence as innocent defendants. The signals are indistinguishable from the prosecutorial perspective. Hence, we have the signalling problem.

Of course, Solomon solved his signalling problem by threatening to divide the baby in two. This changed the incentive structure of the system in such a way that the signal from the real mother was distinguishable from that of the impostor. The question is whether something similar is possible in the case of plea bargaining: can we change the nature of the pre-trial bargaining game in such a way that the signals from a genuinely innocent defendant are distinguishable from those of a guilty one. Covey answers that question by way of an analogy to a card game. The analogy is complex. We’ll look at the first couple of variations of it in the remainder of this post.


2. The Card Game Analogy
We're going to imagine a card game, and we're going to presume that the players are utility maximisers. In other words, we are going to presume that their goal is to maximise their expected payoff from the game. The importance of the word "expected" lies in the fact that it leads us to multiply the actual payoff of a particular game outcome by the probability of that outcome.

The card game works like this. There are two players: (a) the Gambler, G; and (b) the House, H. The House deals four cards from a deck, face-down, onto the table in front of the Gambler. Two of the cards are red and two are black. The cards are dealt at random so neither H nor G knows what order they are in. (It's actually a little difficult to see how this could work in reality. If it helps, imagine that the cards are dealt by a third party, who informs G and H that two of the cards are red and two are black, but gives no indication of the order in which they have been dealt).

The game has the following structure of payoffs. If the bottom card is red, then G gets to keep his money. If the bottom is black, G has to pay H $20. Obviously, this means that G is either going to lose money, or break even. H's payoffs are just the reverse of G's. He is either going to break even or gain $20. Given that the probability of the bottom card being red is 0.5, that gives us the following pair of expected payoffs:

G's Expected Payoff = - [$20(0.5)] = - $10

H's Expected Payoff = + [$20(0.5) = + $10

I know this is elementary stuff, but I wanted to spell out the calculation because things will get more difficult later on.

Suppose dealing out the cards is costly to H, and that he would rather avoid those costs. As a result, he is willing to offer G a deal. He will accept 50% of his expected payoff from G now, in exchange for not dealing out the cards and playing the game to completion. In other words:

H's Proposed Payoff = + 0.5 [$20(0.5)] = + $5

Since G's loss is just the reverse of H's gain, under the proposed deal G stands to lose less than what he expects to lose if the game is played to completion. So he’d be an idiot if he didn't accept the deal.
Obviously, the claim is that this game, with the proposed deal, is somewhat analogous to the plea bargaining scenario. G is like the defendant, who knows he can expect some punishment if his case goes to trial. H is like the prosecutor, who would prefer not to have the expense of going to trial. The proposed deal is like the plea bargain. And like G, the defendant would be an idiot not to accept a guaranteed level of punishment if it is less than his expected punishment from going to trial.

The analogy is imperfect, to be sure, and we will talk more about those imperfections in part two. One obvious way in which it is imperfect is that, so far, it doesn't involve any "private information". Unlike the defendant in a criminal trial, G does not have private information that he would like to be able to convey to H. Let's see if we can correct for this by adding the following variation to the game:

The Card Game with Private Information: The game is as before only this time, when the cards are dealt onto the table, G is allowed to look at the top card (and H knows this), but G is not allowed to show the card to H.

Being able to see the top card changes G's expected payoffs. If the top card is black, then the chances of the bottom card being red increase from 0.5 to 0.66. If the top card is red, then the chances of the bottom card being red decrease from 0.5 to 0.33. Given the way in which the game works, this means that G's expected losses are as follows (remember: H's expected gains are simply the positive versions of these amounts):

G's expected payoff if top card is black = - [$20(.33)] = - $6.66

G's expected payoff if top card is red = - [$20(.66)] = - $13.2

The claim now is that G has private information, that this private information changes the expected payoffs, and that the kinds of private information he has are analogous to those of the defendant in a criminal trial. Roughly, knowing that the top card is black is like knowing that you are innocent; whereas knowing that the top card is red is like knowing that you are guilty (this is an imperfect analogy). The information is private because neither H nor the prosecutor have direct access to it. Since we are interested in the case of the innocent defendant, we will focus on the case in which G knows that the top card is black in the remainder of this series.

What can G do with the private information? Well, you might think that he could use the information to renegotiate the terms of H's proposed deal. H is willing to accept 50% of his expected gains. His expected gains are simply the reverse of G's expected losses. So G should (by all rights) be able to negotiate a more favourable deal when he knows that the top card is black. To be precise, he should be able to get H to accept $3.33 to avoid dealing out costs (since half of $6.66 equals $3.33).

But there is no way that G could actually get H to accept such a deal. Why not? Because G has no way to credibly signal the fact that he saw a black card to H. His attempt to renegotiate the deal certainly won't do the trick. If the top card was red, G would still have an incentive to pretend that it was black. He wants to minimise his losses, after all. As a result of this, there is no way H is going to be willing to accept the lesser amount. We have a signalling problem.

Again, the claim is that this is somewhat analogous to the plea bargaining scenario. Like G, the innocent defendant has private information that he thinks is relevant to the game, but he has no way to credibly signal this to the prosecutor. The guilty and the innocent all end up looking the same from the prosecutors perspective.

What we're going to do next is see whether we can change the structure of the card game so that there is a way for G to credibly signal his private information to H. We’re then going to see if we can carry that over into the plea bargaining game. Those are jobs for part two. Stay tuned.

Some notes on consent and sexual offences (Part Two)

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(Part One)

(Trigger Warning: This post discusses consent to sexual relations, and describes various scenarios in which consent may or may not be present.)

This is a follow-up to my earlier post on consent to sexual relations. The earlier post dealt with the ontology of consent, i.e. what is consent, really? There are two basic accounts: (i) attitudinalism; and (ii) performativism. According to the first, consent is constituted by some set of mental attitudes, i.e. whether or not A consents to sexual activity with B depends on what A thinks, feels, desires, or hopes. According to the second, consent is constituted by some set of (publicly assessable) actions, i.e. whether or not A consents to sexual activity with B depends on whether A performed some consent-signalling activities. Although there is much to be said for the performative account — particularly in the legal context — I suggested at the end of part one that the attitudinal account is to be preferred, at least when it comes to understanding what is harmful about non-consensual sexual activity.

Today, I want to take up a related topic, one that is particularly pressing in the legal context. Consider the following hypothetical (but all-too real) scenario:

Transgender Sex: A woman and a transgender man meet in a wine bar. They flirt with each other. The man returns with the woman to her apartment where mutually satisfying sexual intercourse takes place. Subsequently, the woman discovers the man is transgender and claims to feel violated. She reports the matter to the police and requests that he be charged with rape on the basis of his failure to disclose his gender history.

For a rape charge to work in such a case, the sexual activity would have to have been non-consensual, but prima facie, and ceteris paribus (and whatever other Latin hand-waiving equivocation you want to add) consent looks to have been present in this scenario. So here’s the question: is consent present or did the failure to disclose gender history negative consent? If so, why? If not, why not?

Now, as it happens, I’ve stolen this example from my colleague Alex Sharpe, who has written eloquently and, in my opinion, persuasively about the problems with the gender history disclosure requirement in UK law. I would encourage you to read what she has to say. I use the example here because it is a rather exquisite provocation of the issue du jour: what conditions negative consent?

What follows is little more than a series of notes on this issue, based on my reading of Douglas Husak’s article “The Complete Guide to Consent to Sexual Relations”, which is itself a review of Alan Wertheimer’s book. As Husak notes, there are three kinds of condition that are thought to negative consent: (a) deception; (b) coercion; and (c) intoxication. I’ll briefly discuss all three in what follows.


1. Consent and Deception
If I get you to perform an activity on the basis of a false representation, then it seems fair to say that any consent you render to that activity is morally questionable. For example, if I get you to sign a contract for membership to my club, but neglect to inform you that membership requires the forfeiture of all your worldly possessions, we would rightly call into question your consent to become a member. That much seems unobjectionable.

But aren’t some false representations acceptable? For instance, Bob may induce Kate to have sexual relations with him on the basis that he is a “great lover”, but when it turns out that he is far from that, does it necessarily follow that Kate’s consent is negatived?

What we are dealing with here are fraudulent or deceptive inducements to engage in some kind of activity. To resolve the ethical questions associated with such inducements, theorists typically divide them into two categories:

Fraud in factum: B induces A to consent to some activity (X), which in fact turns out to be a different kind of activity (Y).

Fraud in the inducement: B induces A to consent to some activity (X), which turns out to be activity X, but procures A’s consent by deception.

An example of the first kind of fraud would be:

Gynecologist: A doctor informs his patient that, as part of a medical examination, he will need to insert a medical device into her vagina. She agrees to this. Instead, he inserts his penis.

Clearly, consent is negatived in such a case. The situation might be different if the activity types were very, very similar, but when they are as different as this, consent is surely absent. Indeed, I find it hard to imagine any scenario in which consent to a non-sexual activity could be transferred over to a sexual one. Thus, it would seem like the moral issues involved in the first category of deceptiveness are relatively uncontroversial.

The second category of deceptiveness is a different story:

Affection: Bob tells Kate that he loves her. As a result, she agrees to engage in sexual intercourse with him. It turns out that Bob was lying, and that he did so to get Kate to go to bed with him.

In this case, and the “great lover” example given earlier, Kate knows exactly what type of activity she is consenting to, but her consent is procured by a misrepresentation or lie. Is this sufficient to negative consent? Legally speaking, the Sexual Offences Act 2003 says that impersonating someone known to the victim will negative consent, but that’s just the law. Morally speaking, the issue is quite fraught. This is particularly so when the fraudulent inducement arises not so much from what was said, but from what was unsaid. Hence, in the opening example of Transgender Sex, the woman’s objection arose from the man’s failure to disclose gender history, not from any explicit fraud.

In his book, Wertheimer suggests that there is no satisfactory theory about which kinds of fraudulent inducement will negative consent. Everything turns on which facts are emphasised and how the scenarios are described. Indeed, there are many cases in which what originally looks like fraud in the inducement can be turned into fraud in factum. Take the Affection case from above. You could say that Kate only consented to , whereas what happened was . Is this re-description fair? Does it change the moral character of the cases? Arguably it does.

One thing that can be said with some surety is that perceived deceptiveness that is based on prejudice will not be deemed sufficient to negative consent. Thus, for example, it is unlikely that you could claim a lack of consent if you engaged in sexual intercourse with a black man, but only because he was presenting or “passing” as white. The same is true for other racial or ethnic qualities (and for gender history, if we follow Alex Sharpe’s arguments). Considerations of equality and social justice trump considerations of fraudulent inducement, at least in these kinds of cases.


2. Coercion and Consent
Suppose I am a poor, down-on-my luck student and I come to you looking for money. I plead my case, ask you to be sympathetic, and you agree to lend me some cash. Sounds okay, doesn’t it? Now suppose that instead of pleading my case and calling upon your sympathies, I hold you at gunpoint and demand that you hand over the cash on pain of losing your life. Surely that’s morally objectionable? I cannot claim, in good faith, that you freely and willingly handed over the money.

What’s happening in the second case is known as coercion, and it is generally agreed that coercion negatives consent. Examples of coercive sexual activities abound. For instance, Bob could hold Kate at gunpoint and force her to perform oral sex. That would obviously negative consent. Bob could also threaten to kill some third party unless Kate has sexual intercourse with him. That would negative consent. Or Bob could threaten to fire Kate unless she had sexual intercourse with him. Would this negative consent too?

Wertheimer is one of the leading scholars of coercion, and he defines it in (roughly) the following manner:

Coercion: A coerces B if (i) A makes a credible threat to (ii) make B worse off than they already are (c) unless B adopts a particular course of action that B would not otherwise have undertaken.

This definition of coercion captures the paradigmatic instances of the phenomenon, and it’s probably true that the satisfaction of those three conditions will negative consent. But there are some problems, as Husak points out.

First, there can be cases in which the credible threat is trivial or silly. For example, A could credibly threaten to kill B’s goldfish if B does not have sex with him. But would that really be sufficient to negative consent? Second, there can be cases in which the credible threat is to harm the coercer not the coercee. For example, A could threaten to kill himself if B did not have sex with him. Arguably, a threat of that sort would be sufficient to negative consent. Finally, the threats could come from an outside party. For example, unbeknownst to A, C could threaten to kill B, unless B has sex with A. That’s obviously coercion, but would it make A guilty of rape? The theoretical problem could be resolved here by saying that although B did not consent to the sex (i.e. C’s coercion was sufficient to negative consent), A has a defence of reasonable belief.

In addition to this, there can be cases in which there is no explicit threat to make B worse off, but rather a general atmosphere of menace and fear. In the English case of Olugboja, for example, the victim had sex with the defendant after being driven to and dragged into his house. The case was a landmark insofar as it decided that mere submission to sexual intercourse was not sufficient for consent, and this seems morally correct to me, but as far as I can make out from the case report, there was never any explicit threat to make the victim worse off (apart from one, arguably trivial, threat not to drive her home). Rather, there was physical coercion and an atmosphere of menace. These things obviously negative consent, but they do not sit neatly into the definition of coercion that was given above.


3. Intoxication and Consent
A lack of capacity is obviously an issue when it comes to consent. And intoxication obviously impairs our capacities. But does intoxication negative consent? This is a hugely significant issue since many rape cases involve mildly-to-severely intoxicated victims (and defendants).

One approach to the issue is to be risk-aversive. In other words, to say that it is not worth running the risk of the harms associated with non-consensual sex; that those risks are always heightened when intoxication is involved; and so the (social) rule should be that intoxication precludes effective consent (unless perhaps the intoxication it is very minimal). This could be modified by a rule specifying that if consent is procured prior to intoxication (“I agree now to have sex with you when later I will be intoxicated”) it is acceptable. But even that would be problematic.

Wertheimer challenges this risk-aversive approach with a contractarian one. Basically, he applies the Rawlsian question about schemes of distribution to the rules about consent. Specifically, he asks: what rules on intoxicated consent would be chosen by women ex ante (i.e. before the event)? He suggests that they would choose a rule in which consent is possible up to the point of moderate intoxication. Why? Because that may be crucial to what some regard as a desirable sexual and social experience.
Husak finds this approach refreshing because it pays attention to the different “strategies” women may use to procure sex, and thereby serves as a corrective to the dominant view that it is men who employ the devious, Machiavellian strategies when procuring sex.

But I’m not sure what to make of this. My only hope is to revisit Wertheimer’s approach to intoxication more fully at a later date. Maybe then I’ll have a clearer sense of the argument he is presenting.

Some notes on consent and sexual offences (Part One)

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(Note and Warning: I teach criminal law and the philosophy of criminal law. This year, I’m trying to expand my knowledge of the ethical and philosophical debates about sexual offences, something which I have largely ignored in the past. As part of this effort, I’ll be doing a few posts on topics like consent, rape, sexual taboos and sexual assaults. Obviously, these posts may contain triggers for some people.)

Consent is, without doubt, the most important concept when it comes to understanding sexual offences. With the exception of crimes of sexual taboo, which are less and less common these days anyway, the “criminality” of sexual offences derives largely from the fact that a sexual act is performed without the consent of one or more parties to that act.

Take the definition of rape in England and Wales. Section 1 of the Sexual Offences Act 2003 defines rape in the following manner:

A person (A) commits an offence if - 

(a) he intentionally penetrates the vagina, anus or mouth of another (B) with his penis 

(b) B does not consent to the penetration, and 

(c) A does not reasonably believe that B consents.

Conditions (b) and c) both appeal to consent. They tell us that the offence cannot be committed if B consents to the penetration, nor if A reasonably believes that B consents. The suggestion from this definition is that consent is morally transformative. Its presence changes what would otherwise be a prohibited criminal offence into something that is permissible; and its absence does the reverse. How does consent manage to accomplish this feat?

Two sub-questions would seem to arise. First, what is the nature or ontology of consent? And second, under what circumstances is consent absent or negated? Over the course of this post and the next, I want to sketch some possible answers to these questions. I do so by following the discussion in Douglas Husak’s article “The Complete Guide to Consent to Sex: Alan Wertheimer’s Consent to Sexual Relations”, which as you might have guessed from the title is a review of a book by Alan Wertheimer. Ideally, I should read Wertheimer’s book, but Husak’s article introduces the main themes and issues.

I want to be clear at the outset that these two posts are not considered or well-thought-out views about consent to sexual relations. They are really only slightly polished versions of my notes on Husak’s article. I offer them partly in the hope that in writing them up I will clarify the issues in my own mind, and partly in the hope that others might find them useful.


1. Performative vs. Attitudinal Accounts of Consent
When it comes to the ontology or nature of consent, there are basically two accounts with which to contend:

Attitudinal Account: Whether a person has consented, or not, to a particular act depends on their subjective attitude toward that act.

Performative Account: Whether a person has consented, or not, to a particular act depends, at least in part, on whether they performed one or more consent-signalling acts.

Each account has its defenders. The attitudinal account is pretty intuitive, at least when we approach the matter from our own perspective. I certainly tend to think that whether I have consented to an act depends on my mental state, nothing else. But the performative account has its attractions too, particularly when considered from a legal perspective.

One of the good things about the performative account is that it puts the onus on the person claiming that there was consent to prove that it was indeed present. The default position in a liberal society is that people have a right not to be physically interfered with. The presence of consent could move us from the default position, but we need sound reasons for making that move. Objectively-assessable evidence is the only thing that could supply those reasons. So what were the actions that signalled consent on the part of the alleged victim?

Of course, the performative account has its problems too. What counts as a consent-signalling act? Ceteris paribus, saying something like “Yes; I wish to have sexual intercourse with you” would probably count (the “ceteris-paribus”-clause is all important here). But what about other signals? Could “no” mean “yes”? Could wearing provocative clothing signal consent (at least enough for A to reasonably believe it was present)? The affirmative answer to these two questions has traction among certain people. Surely we wouldn’t want an account of consent that entertained these possibilities?

An easy solution to this problem is to adopt a common knowledge test for performative signals of consent:

Common Knowledge Test: Between two persons (A and B), an act token X will count as a performative signal of consent if and only if it is common knowledge between A and B that X counts as a performative signal of consent (i.e. A knows that X counts; B knows that X counts; A knows that B knows that X counts; B knows that A knows that X counts; and so on…)

But this solution has its own difficulties. Common knowledge is a subtle and difficult thing to achieve. In a previous set of posts, I discussed Pinker, Nowak and Lee’s theory of strategic speech. These authors pointed out that many people use indirect or ambiguous speech acts to try to achieve certain ends. They do so because such speech acts allow people to signal their desires while maintaining plausible deniability. Part of the reason for this is that indirect speech acts block the route to common knowledge. I’ve no doubt that indirect speech acts (and other ambiguous signals) are routinely used by people to enter into sexual relations. Do all these cases involve non-consensual sexual activity?

Perhaps. The question is not intended to imply that the common knowledge standard should not be used. It is just to say that it may demand more than we realise. One could argue that the risks of causing the harm associated with non-consensual sexual activities are sufficient to merit this high standard.


2. Harmfulness versus Wrongness
Still, there is some confusion lingering here. The performative account tells us that consent is only present if there are performative signals of consent. But how can something constitute consent if it must also signal consent? Surely the signal and the thing signalled must be distinct? The implication would seem to be that the performative signals are merely indicative of some underlying mental state, and that it is this mental state that really constitutes consent.

The confusion may stem from the conflation of harmfulness with wrongfulness. Consider the following case (which comes from Wertheimer’s book - I think the name is unfortunate but it is original to the book):

Quadriplegic B really desires, hopes and wants A to have sexual intercourse with her. Due to her condition, however, she unable to communicate or signal her wishes. A decides to penetrate her anyway.

Has A done something wrong? Yes, clearly. Has B been harmed? Maybe not. To my mind, it seems like B has not been harmed. After all, she really desired, hoped and wanted the sexual intercourse to occur. It is difficult to see how a person could be harmed if their considered, second-order desires have been fulfilled.

But A’s act is still contemptible. The reason for this is that A needs to act from appropriate moral reasons. The default position, as I said above, is that interfering with another person is wrong. A has no evidence or grounds for moving from that default position. Secretive consent cannot change his reasons for action.

This suggests that the attitudinal account gets it right when it comes to the harmfulness of rape and other non-consensual sexual activities; and that the performative account gets things right when it comes to the wrongfulness of such activities. Clearly, the performative account is more relevant to the criminal law.