Sex Work

Libertarian ideas surrounding sex work are rooted in consent and individual rights. Libertarians believe that the private sexual choices of consenting adults should not be criminalized nor subject to public policy, and this does not change when payment is involved.

Sex work is a broad category, encompassing a variety of “adult entertainment” mediums and direct or indirect sexual services. (For a deeper discussion on the term and its implications, as well as more history of sex work criminalization, see this Cato Unbound essay by sex worker Maggie McNeill.)

In the United States, many forms of sex work—for instance, strip clubs and pornographic films and videos—are generally legal. But accepting payment directly for sexual intercourse or a few other forbidden sex acts is criminalized, under state or local law, in all but a few counties in Nevada. Purchasing or attempting to purchase sexual services is also illegal, as is promoting prostitution, profiting from it, or assisting it in any way, even when everyone involved is a consenting adult. And while prostitution as such is not illegal under federal law, crossing states lines for the purpose of prostitution is. The FBI, the Department of Homeland Security, and other federal agencies are all regularly involved in local prostitution stings, often under the mantle of fighting sex trafficking.

Today, many in government, activism, and media use the terms sex trafficking and human trafficking interchageably with prostitution and sex work, applying the former to any commercial sexual activity, no matter the identities of the participants or their level of personal agency. Meanwhile, many in the public hear these terms and think of cinematic tragedies involving abduction, smuggling, physical containment, and worse.

Under U.S. law, sex trafficking needn’t involve any of those more severe elements—yet it is still distinct from commercial sex more broadly. Federal criminal code defines commercial sex acts as “any sex act, on account of which anything of value is given to or received by any person.” To constitute sex trafficking, a commercial sex act must involve some element of coercion, fraud, or force and/​or someone under age 18.

U.S. sex trafficking laws—including the 2018 “Fight Online Sex Trafficking Act” (FOSTA)—tend to cast too wide a net in the conduct defined as trafficking. FOSTA prohibited owning, operating, or managing an “interactive computer service … with the intent to promote or facilitate the prostitution of another,” theoretically criminalizing any web service where sex workers advertise or organize. A series of laws since 2000 have grown the definition of sex trafficker to encompass not just people who intentionally cause harm and their abettors but anyone who “recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or benefits, financially or by receiving anything of value, from participation in a venture” involving anyone who is under 18 and/​or being coerced or forced. The broadness of these laws makes them ripe for abuse and has dangerous implications for free speech and civil liberties, while incentivizing a type of policing that makes everyone involved in sex work (including victims) less safe.

The general idea with sex-​trafficking laws, however, is right: we should criminalize commercial sex acts that involve underlying harms such as child abuse, physical assault, or threats, and separate these real crimes from voluntary activities. Meanwhile, general prostitution statutes should be stricken from the books and commercial sexual exchange between consenting adults decriminalized at all levels.

Decriminalization in the context of sex work means that all criminal or civil penalties for the consensual purchase or selling of sex would be abolished. Likewise, arrangements that are legal in other contexts—such as renting space to sex workers or providing internet services to them—should also be decriminalized. In the parlance of advocates, decriminalization differs from legalization, which tends to refer to a state-​managed system of legal sex work outside of which all prostitution is illegal. This is the system in Nevada, where even in counties with legal prostitution it’s still illegal to sell or pay for sex outside of a few licensed brothels, and in many parts of Europe, where prostitution outside of certain circumstances still carries criminal penalties.

Libertarians believe that sex work between consenting adults must be decriminalized, and this lack of legal penalties should not be restricted to a small number operating within state restrictions.

This does not mean that general rules would not apply to sex workers or sex businesses. Rape and child abuse would still be illegal in these settings, of course. Independent sex workers would, as many do now, follow tax and regulatory rules that independent contractors or the self-​employed generally do. Things like public sex could still be banned.

Nor does it mean that schemes for formalizing sex work could not exist in various forms. State and municipal governments could choose or not to allow “brothels.” Industry associations could set up some sort of sex worker licensing system for those who wish to participate. There are many ways technology could be utilized to make experiences safer for sex workers and their clientele. From a libertarian perspective, the key element in all of these things is that they be voluntary—that is, the basic act of engaging in sexual activity for something of value outside of these formal systems would not be criminalized. To criminalize sex work outside of some narrow state-​defined terms merely recreate the harms associated with prohibition more broadly.

“Sex work should be decriminalized because the criminalization of sex work violates the rights of sex workers and their clients and it has bad consequences,” as ethics and political philosophy professor Jessica Flanigan writes in the book Debating Sex Work.

The prohibition of prostitution is the root of many of the harms to those engaged in it. As with other forms of prohibition, it pushes things into a black market, where normal legal protections are not available, bad actors aren’t as likely to stand out, potentially exploitative third-​parties are more necessary, and actions, technology, and other things that could make sex work safer—regardless of whether those invovled are there by choice or force or somewhere in between—are off limits. It also puts people into unnecessary contact with law enforcement authorities, invites individuals and the general public to unnecessary surveillance in its name, wastes public resources, takes time and effort away from fighting non-​consensual activity, and subjects those caught to things like police abuse, fines, fees, jail time, criminal records, prison sentences, sex-​offender status, and a lifetime of closed-​off opportunities, all in the name of preventing private and mutually agreed-​to sexual and economic activity.

Historically, many libertarian thinkers and writers have supported sex worker rights, and this continues today. For instance, the contemporary Libertarian Party platform states that the party “supports the decriminalization of prostitution”—making it the only political party to explicitly do so—and “assert(s) the right of consenting adults to provide sexual services to clients for compensation, and the right of clients to purchase sexual services from consenting sex workers.”

There need be no small-​l libertarian position on the morality of sex work, or the desirability of engaging in or with it. Rather, it’s the ethical, cultural, and religious realm where debates and qualms about sex work should stay. For libertarians, the important point is that outside of situations involving other (already criminalized) harms, prostitution and other forms of sex work should not be a matter of criminal law or government intervention. To pull in some popular sex-​worker rights slogans, sex work is work, and sex workers need rights, not rescue.

The libertarian philosophy on sex work is a moral stance—in favor of principles like bodily autonomy, individual choice, equal protection, and economic liberty, as well as a utilitarian stance in favor of harm reduction and sex-​worker safety. Study after study has shown that decriminalization helps make everyone involved in sex work more safe, and it is not the proper role of the state to tell consenting adults what they may or may not do in private with other consenting adults.