Consent and Commodification: Objections to the Market for Sex Work

This article discusses two ethical objections to the commodification of sex. First, it questions the ability of sex workers to give genuine consent to sex. Specifically, it examines the significance of financial insecurity as a coercive factor in one’s decision to practice sex work and the characteristics of sex work that might make informed consent difficult to obtain. Second, it discusses the capacity of markets to crowd out nonmarket norms, establishing new conventions that reinforce harmful patterns of behavior. The commodification of sex helps entrench these norms and is, therefore, ethically problematic. Ultimately, though, these ethical challenges may be better addressed by the revision of our social institutions more broadly than by the prohibition of the market for sex work specifically, since the latter response may only add to the harms faced by sex workers without reducing the concerns presented in this article.

1. Introduction

One of the most enduring questions in the philosophy of economics is that of the moral limits of markets. When does a market become ethically problematic, and under what circumstances is the regulation or prohibition of that market justified? A particularly complex debate surrounds the market for sex work (MFSW). This article examines two facets of this debate that have been under-considered. First, it argues that it is difficult for an individual to give genuine, informed consent to work in the MFSW, and that this is ethically objectionable. Second, it discusses the effect that market relations can have on our social norms, asserting that the commodification of sex can help facilitate harmful conceptions of sex workers and contribute to the greater incidence of sexual violence they face.

These two lines of objection are unique because they cannot be legislated away with well-crafted regulation. They are essentialist, meaning that they are inherently present in any permutation of the MFSW, and thus they will persist no matter what regulations are put in place. This is a crucial point. Recent work on market architecture, most notably that of Jason Brennan and Peter Jaworski (2015[a], 232), has advanced the claim that “most, if not all, objections to markets in this or that good or service are not objections to markets as such, but to particular features of markets.” In light of this argument, the anti-commodification theorist will be most persuasive if they critique a market based on its intrinsic qualities—aspects of a market that cannot be removed by artful regulation. Two such objections can be levied against the MFSW: first, that it is doubtful whether a person can ever give full and informed consent to sexual labor, and, second, that practicing sex work, under any circumstances, helps establish commodifying norms that will in turn harm sex workers and women in general.

However, these arguments are concerned with the ethics of sex work specifically. They do not imply that sex work should be legally prohibited. I ultimately argue that, because prohibiting the MFSW does not adequately address the objections raised in this article, legalization would be a better policy. Still, I am concerned with objections to the MFSW because, where legalization of the MFSW does gain support, that support should take full account of the costs that even the most well-implemented version of such a project might bring with it. Mitigation of those costs will only be possible if they are fully understood, and this article thus aims to articulate them clearly.

2. Financial Coercion and Consent to Sexual Labor

According to the Rape, Abuse & Incest National Network (RAINN 2022), a constitutive aspect of genuine sexual consent is the ability of the actor in question to revoke it at any time, without being coerced by the “pressure of intimidation or threat.” Put simply, a person should have the option of terminating any sexual encounter of which they are a part at any time. In the MFSW, ending a sexual encounter prematurely would also terminate the commercial contract that outlined the terms of that encounter. Such a contract is itself an instrument of consent, combined with a promise of conditional reward. One of the involved parties agrees to perform some labor in exchange for remuneration from the other party. When a person terminates a commercial agreement, the expectation of labor is dropped and the promised payment is forfeited. Revoking sexual consent requires terminating the sexual encounter in question, and revoking contractual consent requires refunding compensation that was conditional upon the performance of work that will no longer be done. Thus, any agreement involving sex work can be unproblematically canceled as long as a) the parties involved are allowed to revoke their consent to the engagement and b) any payment that was conditional on participation in said engagement is refunded. If these conditions are met, the consent that is a necessary precondition for sexual engagement and for commercial contracts can be said to be genuinely revocable.

However, the above line of argument does not adopt a realistic view of the requirements of occupational labor. I define an occupation here as the trade an agent adopts in order to support themselves. In accordance with this definition, if an agent is to engage in some practice as an occupation specifically, they must be able to rely on that practice as a source of income. The above discussion of contract and consent preserves the sex worker’s ability to dissolve, and thus to genuinely consent to, the contracts they undertake, but in doing so it only offers the sex worker two choices regarding any given job: perform the agreed-upon contract and collect remuneration, or dissolve the contract and forego payment. Any sex worker who relies on the MFSW for their occupation will not, practically speaking, be able to consistently avail themselves of the second of these two options. Their income will depend on routinely fulfilling contracts for sex work. Accordingly, for whatever group of contracts makes up their minimum acceptable income, the choice between accepting or rejecting a contract will be a hollow one. The worker in question must accept most of these contracts unless they are prepared to find an altogether new source of income, and this finger on the scale works against the genuine exercise of sexual consent. Participation in contractual employment, conceived generally, need not marginalize considerations of sexual consent.^[1] But maintaining an occupation demands a more constrained set of choices—specifically, participation in the MFSW effectively requires sex workers to choose between genuinely consenting to their work and earning their living.

It is best to call this pressure on sex workers financial coercion. An agent who performs sexual labor as an occupation is compelled to undermine their own ability to give genuine consent to their work in order to secure a living for themselves. A sex worker driven by financial insecurity, therefore, must choose from an unacceptably constrained set of options.^[2] For Rhéa Jean (2015, 53-54), exercising genuine agency requires “being free from external coercion,” a condition that a context of economic desperation squarely undermines. When a person enters an occupation solely in order to earn enough to secure a basic level of health, comfort, and dignity for themselves, the choice between accepting and rejecting the job in question is, in an important respect, a false one. To reject the job would also be to reject the provision of one’s basic needs, which one cannot be expected to do. Thus, when sex workers “decide that prostitution can be their best economic option and their only way to feed their children and pay their rent,” they do make a choice, but any agency they express in doing so is partial and qualified (55). Such choices are made “in a context of survival” (55). They can be made deliberately, but they cannot be made freely.

Taken on its own, the problem of financial coercion could mark the MFSW as a harmful industry. But once this objection is contextualized by the current realities of the American labor market, it becomes much less persuasive, because it is debatable whether this difficulty is unique to the MFSW. Martha Nussbaum (1998, 712) argues that financial coercion is “a pervasive problem of labor in the modern world, not a problem peculiar to prostitution as such.” In a capitalist economy, the ability of an individual to procure their basic needs is fundamentally dependent on that individual having enough money to buy those needs, and wage labor is a primary way to obtain a legal, consistent stream of money. Thus, individuals will always be put under pressure by some degree of necessity to obtain money, and thus by some degree of dependence on wage labor.

Jairus Banaji (2003, 71) takes up this point from a Marxist perspective when he argues that “Marx and Engels clearly did not see the isolated wage-earner as a free agent or the wage contract as a free contract.” As Banaji (2003, 71-72) explains, “coercion is everywhere, because the outcomes [of bargaining] are heavily conditioned by the legal order in effect at any given moment.” Specifically, one can refer to the legal order that undergirds our economic markets, which price basic needs; our labor laws, which dictate how individuals can attempt to enrich themselves; and our welfare laws, which dictate what kind of support is available to supplement or replace that provided by wage labor. Thus, for example, the ‘legal order’ of the United States allows for the federal $7.25 per hour minimum wage (U.S. Department of Labor 2022). Assuming a 50-week year of working for 40 hours each week, an individual earning the federal minimum wage earns $14,500 per year.

To compare, the poverty line in the United States is $12,880 for a 1-person household, $17,420 for a 2-person household, and $21,960 for a 3-person household (U.S. Department of Health and Human Services). Thus, in the 20 states where the federal minimum wage is not replaced by a higher rate, those who earn minimum wage barely stay above the poverty line when supporting just themselves, and sink quickly below it if they must support dependents (U.S. Department of Labor 2022). It could be replied that broad statistics like poverty rates miss some of the nuances of how individuals may be able to support themselves. However, if poverty data tracks the means of individual support, data on spending—the ends—validate its conclusions: as of this year, 59% of Americans did not have the financial resources to cover an unplanned $500-$1,000 expense (CBS19 News 2022). Financial insecurity is a profoundly generalized phenomenon in the U.S.

Taking this reality into consideration, to take financial instability as an indicator of a morally impermissible, insufficiently “voluntary” contract is to make a more or less moot point. Banning certain professions simply because people were motivated by poverty to choose them would be to ban the occupations of half of the country. Thus, it may be true that, as Debra Satz (1995, 65) says, “we should be suspicious of any labor contract entered into under circumstances of desperation,” but we cannot treat that suspicion as a reason to prohibit isolated professions. Such a policy would be inconsistent and arbitrary unless it attempted to outlaw all the different industries that the massive number of people driven to work by financial pressure choose. Indeed, adopting such a prohibitive stance is actively damaging to those in poverty because it deprives them of an opportunity to earn income, making their financial instability worse and increasing the motivating power of their poverty. If sex work is a field that low-income people select due to financial pressure, the most helpful policies would increase the financial independence of those people in some way. Criminalizing their selected occupation will not help do that (Nussbaum 1998, 721-722; Satz 1995, 83).

In fact, prohibiting a person’s occupation throws the validity of contracts into question in the same way that poverty does. Banaji (2003, 72) points out that it is when there is uncertainty as to “whether the contract would have been made had each party had other physically imaginable though socially unavailable options available to him” that “question[s] of ‘duress’ arise” in a matter of contract formation. In other words: the ‘voluntary’ nature of a contract is diminished to the extent that actors were limited in their choices when making that contract. Thus, poverty throws contracts into question because it limits a person’s choices. Prohibiting certain professions, like sex work, would do precisely the same thing and, as such, would throw the validity of the contracts made after such a prohibition even more into doubt.

However, this comparison becomes less appropriate if we insist that, among the occupations that individuals select when they find themselves in dire financial straits, sex work is particularly objectionable. We could argue that, while financial desperation is a generalized phenomenon in the United States, some jobs are too dangerous to be justified even by the pressures felt by workers trying to secure basic needs. Indeed, I deploy this type of argument in the following section of this article when I assert that sex work can have a uniquely serious influence on the mental and emotional health of those who practice it, and that, accordingly, an inability to give informed consent to sex work should be treated as more serious than an inability to give informed consent to other types of work. The preceding discussion of financial coercion operates according to the same logic as this point about informed consent, and the two arguments should stand or fall together.

3. Informed Consent

So far, I have argued that even if it is theoretically possible to give genuinely revocable consent to sexual labor, a reliance on the MFSW for income is inextricably connected to a degree of financial coercion. Given the ubiquity of financial insecurity in the United States today, this characteristic of the MFSW is not, on its own, particularly notable, though it becomes more significant if sex work is a uniquely harmful type of labor. I will now assert that the particular nature of sex work also raises questions about whether the consent to provide sexual labor can be informed consent, another challenge to the idea that contracts made in the industry are truly voluntary.

The ability to predict the consequences, both material and emotional, of an action is a key aspect of one’s ability to genuinely consent to that action. Elizabeth Anderson’s (1990) examination of the market for surrogacy underlines this point. A woman who is paid to have a child for someone else commits contractually to give away the child she gives birth to. If the mother cannot predict how attached she will become to the child, and thus how painful giving that child away will be, she may not actually be able to consent to such an action ahead of time (Brennan and Jaworski 2015[a], 234). Or, more specifically, she may be able to give consent, but she may be unable to give informed consent due to an unresolvable failure of information. Similarly, with regard to worker safety: “workers’ choices must reflect deliberation upon full information about the risks they encounter. This requires not only that information be available to workers, but that they… make good use of this information” (Anderson 1993, 197). It is the task of “making good use of the information” that might be difficult in the case of surrogacy or sex because the predicted feelings of the agent ex ante might differ significantly from their actual experience.

Anderson’s concern about surrogacy might be resolved by the inclusion of a “change of mind” provision stating that “if, for any reason or for some specified set of reasons, the surrogate changes her mind, the contract is null and void” (Brennan and Jaworski 2015[a], 235). With this measure, individuals could not be pressured to stick to contracts that they would rather abandon. Thus, even if genuinely informed consent could never be given, the consequence that would normally make this point so worrisome—namely, an unforeseeable yet profound regret on the part of the agent—would be avoidable. However, here the possible comparison with sex work breaks down.

Sex, like surrogacy, does often involve strong and complicated feelings that are difficult for the agent to accurately predict beforehand, and so it poses the same question of informed consent. Surrogacy, however, includes an option of reversibility that sex does not. When people pay for surrogacy services, what they are ultimately paying for is the child produced by the surrogacy, not the surrogate’s experience of pregnancy. Conversely, patrons of sex workers pay for the experience of a sexual encounter specifically, not for any product that results from the encounter. The service being consented to, and to which the actor in question cannot give informed consent, is tangible for the surrogate and irrecoverable for the sex worker since custody of a child can be switched between parties after the child is born, whereas a sexual encounter cannot be undone.

Thus, while a surrogate mother can choose to either keep or give away the results of her surrogacy, changing her mind, refunding her patron and reversing the contract, a sex worker cannot ‘change their mind’ after they have already performed a particular sexual encounter.^[3] A ‘change of mind’ provision for the sex worker would have to take effect during the action being consented to, not afterward. It would be, in effect, a guarantee that they could revoke consent during an encounter once they realized that they no longer wanted to adhere to the contract they initially agreed to. However, we established in the previous section that a sex worker who relies on the MFSW for their income cannot reliably revoke their consent to the sexual encounters in which they engage. They will be constrained in their choices and, I now argue, unable to give informed consent to the choices they do make.

It is important to clarify that the mere fact that it is difficult for sex workers to predict how they will feel when plying their trade does not, on its own, render the MFSW objectionable. Strictly speaking, people rarely know completely how they will feel when they agree to perform any duty in any kind of market. This kind of power is called precognition. But sex work is distinct because it can have an extreme and lasting effect on the emotions, perceptions, and general psychological health of its practitioners. Voluminous firsthand testimony from sex workers and robust academic literature affirm this fact.

Evelina Giobbe’s collection of sex workers’ reports of their experiences helps make this dynamic clear. The women she profiles express feelings of extreme self-reproach because of their occupation: “I’ve felt… like I was dirty, nasty, not worth anything, no self-esteem, no confidence” (Giobbe 1991, 152). They have difficulty forming relationships: “I feel like my life is over when it comes to ever having a relationship”; “for a long time I hated all men”; “I am most definitely afraid to have sex” (153, 154). They experience moments of psychological trauma: “I had acid flashbacks for more than a year… I would hallucinate full grown human beings that weren’t there” (156).^[4] They can also develop persistent mental and emotional pressures and an inclination towards self-harm (157).

This last, and most serious, circumstance is not a fringe phenomenon. Gilbert Geis (1974, 174) reports that, in one survey, 75% of sex workers polled had attempted suicide at least once, and posits that “15 percent of all suicides brought to public hospitals are reported to be prostitutes.” All of this is to say that the effect of sex work on the mental and emotional landscapes of those who practice it is not marginal or casual. The trauma inflicted by the MFSW is diverse in its impacts, substantive in its influence on sex workers’ lives, and, if left to develop in the wrong way, uniquely dangerous.

We should view a particular trade with caution when it demonstrates the twin conditions of a) effects on its workers that are difficult to predict and b) stakes that are high enough to render workers’ incorrect predictions dangerous. Condition b) separates markets like the MFSW from more benign market exchanges. A person who agrees to watch half-a-dozen dogs over the weekend, or whose job requires learning how to skydive, may be totally unsure how their occupational duties will affect them when they agree to take them on. But, even if such a person realizes when they are performing such jobs that they have made a mistake, they are unlikely to be seriously scarred from their misstep. Skydiving and pet-sitting lack the emotional and psychological costs that can attend sex work. The similar concern that Elizabeth Anderson expresses in her objection to surrogacy is also distinguished by this point. Giving birth to, and then giving away, a child involves unique emotional and psychological pressures. The worker who enters into a contract to take these pressures on while remaining unable to fully understand them until they actually arise is left vulnerable to harm that simply does not attend other markets.

We are now in a position to propose a limited anti-commodification argument. The performance of sexual labor in an occupational context is ethically objectionable because performing such labor requires a suspension of consent that places an undue burden on the worker in question. This argument is imperfect, however, because it is difficult to draw a direct link between the adverse effects of sex work and the pure act of paying money for a sexual encounter. As Brennan and Jaworski (2016, 11) point out, an objection to an activity that should not be performed in any context, inside or outside of a market, is not a criticism of commodification per se. A market for nuclear weapons would be objectionable because nuclear weapons should not be controlled by anyone who is not a head of state. But, by this logic, it would be equally bad to sell nuclear weapons and give them away. We are concerned here with the presence of weapons outside of government silos, not with the act of selling them. Anti-commodification objections must take issue with commercial exchange specifically. Such approaches should argue that the application of market processes to certain actions “introduce[s] wrongness where there was not any already” (10, original emphasis).

The above arguments about the unique danger of the MFSW do not quite do this, because there are often multiple possible explanations when sex work detrimentally affects the mental and emotional states of its practitioners, and not all of these possible causes are commercial. Some negative experiences in the MFSW, for example, are closely related to the perpetration of crimes that no proponent of an MFSW would ever endorse. This association is interspersed throughout Giobbe’s collected testimony, visible in statements that describe sex work as “abuse,” or as the phenomenon of getting “totally sexually assaulted every… conceivable way possible in my life” (Giobbe 1991, 153). One woman that Giobbe profiles explains her experience with sex work as a confrontation with “a real deep pain, an assault to my mind, my body, my dignity as a human being” (156). These sentiments may reflect the startlingly high incidence of violence that is directed against workers in the MFSW. Of the sex workers surveyed by a 1998 Commercial Sexual Exploitation Resource Institute (CSERI) study, 59% of them had been “raped by a client… 48% were forced to commit a sexual act against their will,” and 55% were “beaten by customers” (Carter and Giobbe 2006, 28). They may also reveal an association by sex workers of even “consensual” sex work with body violation.

Sex work that takes place in an atmosphere of coercion and fear, even if it does not involve outright violence, is likely to contribute to the perception that “[p]rostitution is like rape… I don’t know how else to explain it except that it felt like rape” (Giobbe 1991, 144). Criticisms of illegal violence and informal coercion should play a central role in our criticisms of the MFSW as it exists today. But, to the extent that these threats account for the negative experiences of sex workers, those experiences should not be used as arguments to prohibit a hypothetical, strictly-regulated MFSW from which they would be absent.

The social stigma attached to the MFSW is also often cited as a source of the emotional stress of sex work. Jackman, O’Toole, and Geis (1963, 153) theorize that an intense disassociation reported by sex workers may be the product of attempts by said individuals to distance themselves psychologically from the “general social values” that they feel they have transgressed. Some sex workers attempt to “[dichotomize] their world… by depersonalizing their prostitute roles and living almost entirely in the dominant world of American middle-class values” (156). Giobbe (1991, 155) details the impulse felt by some sex workers to “numb the experience [of sex].” In the words of one woman: “I used to experience leaving my body… I didn’t want to feel what I was feeling” (144). Others, viewing themselves as outside the realm of social respectability, internalize negative self-perceptions: “No one’s ever going to want me anymore” (Giobbe 1991, 153).

Once again, though, it’s possible that this issue could be solved by shrewd regulation. Brennan and Jaworski’s analysis of cultural values may be particularly well-suited to address this clash between the labor that sex workers perform and the social perception of that labor. History is rife with examples of different populations viewing the same actions with wildly different moral significance. The representative example, referenced by Brennan and Jaworski and by James Rachels, is that of the Callatians and the Greeks, related in Herodotus’s History. The two groups had different funerary practices—the Greeks preferred to burn their dead, while the Callatians preferred to eat them—and each considered the other’s traditions barbaric (Brennan and Jaworski 2016, 63; Rachels 2014, 54). Such disparate views of the same action, Brennan and Jaworski argue, demonstrate that the “symbols and rituals” that we use to express our values in a social context are “highly contingent, fluid, and socially-constructed” (Brennan and Jaworski 2016, 63, 50).

This is not to say that such perceptions lack meaning, but rather that they can theoretically be changed. Indeed, Rachels (2014, 65) asserts that a recognition of the variability of social custom is powerful because it is an “antidote… for dogmatism.” It emphasizes that our preconceptions often lack the objective quality we assign to them, and better equips us to keep “an open mind” (65). Accordingly, when “cultures… impute meaning to markets in harmful, socially destructive ways,” such interpretations can be disarmed by “revi[sing] the meaning we assign to these markets” or, failing that, by “conscientiously rebel[ling] against” said meaning (Brennan and Jaworski 2016, 50). If the MFSW in its current form subjects its workers to harmful social stigma, the best response may be to alter our social norms until we are able to remove this stigma without having to prohibit the MFSW as a whole.

The argument so far has been laid out as follows: the occupation of sex work can have significant negative effects on those who practice it. Such negative effects are problematic in their own right, but they also make it difficult for a person to genuinely consent to perform sex work. They may not be able to predict the development of these effects, and so when they agree to a contract for sex work they will necessarily be doing so without being fully informed. And, because the experiences that a sex worker cannot predict have the potential to influence said sex worker so profoundly, we should take issue with a system in which an agent cannot secure informed consent.

Having said this, this objection may not be fatal to the argument in favor of an MFSW. If the negative experiences mentioned above, which make a lack of informed consent so significant, are not intrinsically present in all permutations of the MFSW, it may be possible to neutralize them with some regulatory schema that diminishes the social stigma surrounding sex work and the high degree of violence that is directed toward sex workers. It is important to emphasize, though, that it should not be taken as a given that such regulations exist. I have presented some arguments for why some of the harms experienced by sex workers may not be inherent in the pure act of performing sexual labor in exchange for money. Such arguments do not rule out the possibility that such harms, or similar ones, are inherent in the profession of sex work, and the burden of proof is on advocates of the MFSW to disprove this assertion. Testimony that explicitly separates sex work and sexual assault (i.e. ‘Prostitution is like rape’) and yet still associates one with the other should be given particular scrutiny.^[5] Such reports suggest that the practice of sex work could be harmful even if the illegal elements of abuse were filtered out of it, and, in light of these claims, we should pause before arguing that it would be possible to engineer an MFSW that was totally removed from the physical and psychological harms described above. References to possible alternate causes of said harms do not, taken on their own, settle the issue.

4. Crowding Out Nonmarket Norms

Even if there did exist a version of the MFSW in which all questions of consent were resolved, the corruptive effect that markets can have on our social norms, and the actions this corrosion would facilitate, could still pose a serious ethical challenge of its own. Michael Sandel (2013) illustrates the extent to which markets can instill particular norms that may replace other values we care about. Sandel (2013, 128) brings up the example of a study conducted by Uri Gneezy and Aldo Rustichini that tested whether imposing a fine on parents who were late picking up their children from daycare deterred tardiness. It did not. In fact, the number of late parents spiked after the fine was instituted. Gneezy and Rustichini concluded that the parents “treated the fine as if it were a fee.” A fine is a sanction that is meant to condemn a moral transgression, while a fee is a distinct price one pays to gain permission to act a certain way. Before the experiment, parents were motivated by whatever moral imperative they initially had to pick their children up on time. The norm they followed was an interpersonal one: “I have an obligation to my child, or their teacher, to arrive promptly.” Afterward, the fine provided an unambiguous, accessible standard of how much punctuality was valued, which replaced parents’ more amorphous internal motivations. It put a price on tardiness when it should’ve acted as a deterrent (128). And, in doing so, it established a new norm for parents to follow: “being late is OK, as long as you pay.”^[6]

Importantly, once preferences are altered in one context, they can influence our decisions in situations that are unrelated to that context. Bowles (1998, 80) asserts that “economic institutions may induce specific behaviors—self-regarding, opportunistic, or cooperative, say—which then become part of the behavioral repertoire of the individual.” This process can be described more formally as a “behavioral spillover”—the generalization of an internalized value to new contexts (Truelove et al. 2014, 127-128). Brennan and Jaworski also acknowledge the socializing power of market infrastructure, though they tend to focus on the market’s ennobling effects rather than its corrupting ones. They assert that “people from market societies characteristically know how to put themselves in their trading partner’s shoes,” and that “as a matter of empirically verifiable fact, market societies induce people to play fair” (Brennan and Jaworski 2016, 97).^[7] They also report that “‘priming’ people with words related to markets and trade makes them more (not less!) trusting, trustworthy, and fair in experiments. That is, people get into the market mindset [emphasis added], they become nicer” (97). The use of the phrase ‘market mindset’ here is especially revealing. The insight of research regarding cultural mental models and behavioral spillover is not only that a market context can push individuals toward certain values in the short term. Rather, research reveals that a particular context can equip an agent with a set of values that will persist once the individual leaves that context and that can be triggered in different environments to influence behavior.

This process of value inculcation is even acknowledged by Gary Becker, one of the most vehement proponents of the view that preferences among agents do not, in fact, change—that they are “stable over time and similar among people” (Stigler and Becker 1977, 76). Despite this insistence, Becker’s views on welfare policy center on the idea that participation in a market can instill values in an agent that continued unemployment cannot.^[8] Becker (1995) lauds “the effects of a free-market system on self-reliance, initiative, and other virtues.” A reliance on welfare, correspondingly, “corrupts the[se] values,” (Becker 1995). In light of this fact, the benefits of the welfare system should be greatly reduced; when this happens, agents will be “forced to make decisions and provide for themselves,” and their powers of “responsibility and initiative” will increase. Becker argues that the distinct contexts of unemployment and professional work instill different values in agents.

Once we determine that a market environment brings with it its own set of potentially durable norms, we must reject the idea that “markets are inert, that they do not touch or taint the goods they regulate” (Sandel 2013, 128). In doing so, we can provide a response to Brennan and Jaworski’s requirement that an anti-commodification argument must identify a way in which the market in question “introduce[s] wrongness where there was not any already.” When a market plays host to harmful norms, and when these norms can influence the actions of agents in harmful ways, we can say that such a market has “introduced wrongness” now inherent in its structure. When these norms are purely a function of the act of commercial exchange, and not of some peripheral, editable feature of the market in question, market architecture cannot erase them. As long as the market exists, the values it supports will exist too.

5. Semiotic Objections: The Effects of Market Messages

Having established that market institutions come with distinct norms and that agents can internalize those norms when they buy and sell things amongst themselves, we are now in a position to ask: what norms are inherent in the MFSW? Is it a problem if these norms become widely accepted? To put the issue more specifically, I critique the messages that participation in the MFSW could conceivably send. It is possible that the commodification of sexual labor could change the way agents regard sex workers and sexual activity in general, and these changed perceptions could motivate harmful actions. This objection is a semiotic one, meaning it asserts that “participating in [certain] markets can express or communicate certain negative attitudes, or is incompatible with holding certain positive attitudes” (Brennan and Jaworski 2016, 21). However, such critiques can only hold if we conclude that the proliferation of these ‘negative attitudes’ is genuinely harmful, a contention that the scholarship strongly rejects. An abstract defense of semiotic objections is, therefore, necessary before we can discuss the norms that the MFSW might specifically propagate.

Within Brennan and Jaworski’s framework, semiotic objections cause harm when a) the operation of a certain market expresses some judgment about the commodity being exchanged, b) this judgment is viewed as improper or disrespectful by some observer, and c) said observer’s well-being is diminished by this perception. Harm is caused when a person is offended by the treatment of a good in a negative way. It is debatable, however, whether the observer semiotically offended by a certain market can make any demands upon that market’s participants. Whether a person takes offense at a certain message is partly dependent on what judgments that person makes about what they see. Thus, it is possible for someone to be justifiably offended after correctly concluding that another person has behaved improperly. It is also possible to be unjustifiably offended, having drawn such a conclusion erroneously. It is easier to assign ethical weight to the outrage in the first of these two examples and more difficult to do so in the second. Depending on the circumstances, we might conclude that the justified party in the first example has a right not to be treated in the way that offends them, and that the person responsible for the offense would be blameworthy if they did not change their behavior. The offended person in the second example may not enjoy the same right. And if they have no grounds for complaint, their responsibility is to “get over their aversion” to whatever has incensed them (Brennan and Jaworski 2015[b], 1068-1069).

I will argue momentarily that the above characterization of semiotic objections underestimates the harm that market messages can cause. It is important to note, though, that Brennan and Jaworski’s account of semiotic objections, if it is correct, undercuts the essentialist critique of the MFSW that I am trying to make. An analysis of cultural relativism helps clarify this point. Herodotus’s description of the Greek and Callatian mourners is meant to underline the idea that different rituals can express the same common sentiment; wildly dissimilar funerary rites can, in their own contexts, fulfill the “moral obligation to signal respect for [one’s] dead [father]” with equal reverence (Brennan and Jaworski 2016, 63). An agent that favored one of these rituals and took issue with the other would have little reason for their preference, besides the fact that their chosen rite was endemic to their own culture. The idea that “some markets necessarily signal disrespect” that “is not a mere contingent social convention” is difficult to support if we conclude that the messages conveyed by our social practices are relative (63). This logic undermines essentialist critiques of markets. Problematic semiotic norms, relative as they are, can theoretically be changed (recall Brennan and Jaworski’s earlier endorsement of smart market architecture). When change is difficult or time-consuming, we can transgress these norms, secure in the knowledge that they are not objectively defensible (Brennan and Jaworski 2015[b], 1057-1058).^[9]

I agree with this analysis but believe it only applies to the specific class of semiotic objections that Brennan and Jaworski identify. I propose a different conception of semiotic objections, informed by the thesis of endogenous preference formation within market environments. Within this framework, semiotic objections cause harm when a) the operation of a certain market expresses some judgment about the commodity being exchanged, b) this judgment alters an agent’s preferences, often in a durable way, c) the changed preferences go on to influence the agent’s actions towards others, and d) these future actions cause harm to others that the agent has no right to inflict. For me, along with Brennan and Jaworski, a semiotically objectionable market is one in which transactions convey the judgments mentioned in step a). But my conception of semiotic objection is qualitatively different from Brennan and Jaworski’s. Within my framework, an agent participating in a semiotically objectionable market helps cultivate personal and social norms that contribute to harmful action, and, as such, acts reprehensibly. Conversely, Brennan and Jaworski maintain that an agent in an objectionable market is guilty only of offending another party.

The difference here is an important one: we may lack an obligation to avoid causing unjustified offense, but we must be culpable to a greater degree when we knowingly contribute, even indirectly, to the perpetration of violence against some group. Thus, contrary to what Brennan and Jaworski claim, we cannot encourage agents to transgress semiotic norms when doing so would help bring about harmful action. Their recommendation that we change harmful semiotic norms is still a good one, but once we reject their claim that semiotic norms can be transgressed when they are too difficult to change, we must pay some attention to the demands of practicality. We cannot, for example, defend a norm-violating market just by promising to change the norms it violates. If such change is not feasible, and if we are not ethically permitted to flout the norms in question, the market becomes more difficult to justify.

I should note that there is some overlap here with Brennan and Jaworski’s (2016, 21) conception of a “corruption objection.” Corruption objections argue that “participating in certain markets might tend to cause us to develop defective preferences or character traits” (21). These changes to our character influence our actions, and thus some markets may make us more likely to act in improper ways. A semiotic objection, strictly speaking, claims that “participating in markets can express or communicate certain negative attitudes, or is incompatible with holding certain positive attitudes” (21). Corruption objections address what we value while semiotic objections relate to what we communicate to others. This article’s emphasis on the ability of markets to influence our preferences is, to some degree, a corruption objection.

However, it is also meant to suggest that the messages we communicate in a market have the same potential to change our preferences that market structures have. It is easier to address a corruption objection by brainstorming good market architecture than to rebut a semiotic objection by recommending a change in our culture. A corruption argument against selling “Disney Princess dolls,” for example, might assert that such sales will “reinforce certain defective gender norms” (21). But this critique could theoretically be addressed by changing the way Disney Princess dolls are sold. Regulation could declare that only dolls with realistic bodily proportions should be put on the market, that dolls should be portrayed with a variety of non-stereotypical fashions and occupations, or even that doll sales should not be permitted to children of a certain impressionable age. Conversely, if the pure act of commodification communicates certain disrespectful messages, an appeal to market architecture is not appropriate, though an attempt to change the social perceptions of the market in question might be.

If we put the different pieces of the above argument together, we can conclude the following. Problematic changes to our character can be addressed with market architecture. Problematic messages expressed by the market can be addressed by revising our social norms. This is an important distinction from the point of view of policy because it is much easier to legislate and enforce smart market architecture than to create a broad change in opinion. But this point becomes less worrisome than it first appears if we argue that, while corruptive changes to our character lead to harmful actions, bad semiotic norms only produce unjustified offense, which can often be disregarded. What I would like to emphasize with this article is that this conclusion is not accurate. Indeed, bad semiotic norms can change people’s character to the same degree that corruptive markets can. The fact that semiotic objections may be harder to resolve than corruption objections, therefore, cannot be marginalized by an assurance that the former critique is, ultimately, baseless.

6. The Semiotic Objection to Sex Work

We can now identify an objection to the MFSW that is grounded in the norms it emphasizes: allowing the sale of sex runs the risk of suggesting new, damaging ways to think about a person’s right to bodily integrity. As Debra Satz (1995, 72) argues: “Will a prostitute’s consent to sex be seen as consent to a twenty dollar payment? Will courts determine sentences in rape trials involving prostitutes as the equivalent of parking fine violations (e.g., as another twenty dollar payment)?” This worry connects back to Gneezy and Rustichini’s discussion of fines vs. fees. Consent to sex should be viewed as a moral requirement, and the violation of that consent should be seen as a moral issue. The appropriate sanction should be a punishment that expresses moral disapproval of the action—a fine, to use Gneezy and Rustichini’s terminology, though obviously, the appropriate punishment would be much heavier. Exchanging some sexual acts for money, conversely, establishes a precedent whereby different amounts of money can provide a patron with access to different sexual acts. This precedent is founded on the objectification of sex workers as a purchasable commodity, and it strips the sex worker of any agency to determine what acts they perform. Instead, it makes all power to ‘access’ sexual encounters conditional on the exercise of the correct amount of money. Within this framework, paying extra for different sexual encounters would be considered a fee.

Dangerously, as Satz suggests, within this paradigm lies the risk that the crime of assault—the ‘access’ to certain sexual acts without the consent of the sex worker in question—would come to be considered that of failing to pay the appropriate fee rather than that of a grave moral transgression. The idea of crowding out vital norms with injudicious market transactions can seem abstract, but the above case represents the tangible and serious danger of this process. In this case, new market norms would drastically reduce the perceived seriousness of the assault. Evading a fine is less of a moral trespass than violating a fundamental human right to bodily integrity. Such a shift in perception could conceivably increase the frequency with which sex workers face assault and related violence. Reducing the perceived seriousness of the crime could also lessen the penalties associated with it. Satz points out that courts, and not just isolated individuals, could write these new perceptions into law, causing lasting harm to victims of abuse.

The main contention of objections of this type is not only that introducing a certain good into the market changes the messages we send about the value of that good, but also that, in doing so, we set a precedent for treating the respective good a certain kind of way. By participating in certain markets, we perpetuate harmful norms and, indirectly, help create new standards for action that we might not want to endorse. This process is why semiotic objections are more than points of symbolism or ideological preference. The norms we follow affect the actions we take, and those actions have tangible costs. And, even if individuals could follow Brennan and Jaworski’s prescription to “conscientiously rebel” against the norms in question and the modes of behavior they facilitate, this would not be a reliable standard upon which to build broad policy–the ethical justification of which would depend on many discretionary, unpredictable, individual decisions to reject or endorse certain norms.

Accordingly, Anderson (1990, 76) argues that the market for surrogacy is problematic because “commercial surrogacy substitutes market norms for some of the norms of parental love. Most importantly, it requires us to understand parental rights no longer as trusts but as things more like property rights–that is, rights of use and disposal over the things owned.” A market for surrogacy establishes the wrong kind of relationship—that of vendor, consumer, and product—between parents, patrons, and children, and treating children according to the terms of this relationship is improper. Similarly, a market in sex work is problematic because it classifies sex as a commodity. Once this framework is established, violations of consent can be seen, accordingly, as improper use of that commodity rather than as crimes against another person.

Richard Posner’s description of “a rapist as a ‘sex thief’” rather than as a perpetrator of “violence and assault” is a perfect illustration of this altered perspective (Satz 1995, 69). Indeed, Posner argues that a negative association between male participation in the workforce and incidences of assault is explained by the fact that “men who do not work tend not to have the resources necessary to attract women and therefore have a greater incentive to bypass the market in sexual relationships” (Posner 1992, 182-183, [emphasis added]). It is doubtful that the explicit association between the provision of sex and the performance of labor established by the MFSW will do anything except exacerbate this perception. Objectification is damaging because it provides the groundwork for this new perception; abuse of goods is a trespass of a different type than abuse of persons.

The norms described above, once they are cultivated by the markets being criticized, could help ground or amplify harmful patterns of action. In the case of sex work, the contention is that a market in sexual labor will commodify sexual action, make it easier to view sexual abuse as an abuse of goods rather than an abuse of persons, and thus, ultimately, lessen the perceived severity of such abuse while increasing its incidence. The empirical evidence conforms to this view. Sex workers are disproportionately the targets of sexual assault, battery, and other varieties of violence. Satz (1995, 78) points out that “the mortality rates for women engaged in streetwalking prostitution are roughly forty times higher than that of nonprostitute women.”

Section 4 of this article noted the uncommonly high recorded rates of violence against sex workers and the resultant physical and psychological trauma they experience. It is worthwhile to restate one survey result here: the CSERI study that Carter and Giobbe examine reported that, in their sample, “59% of prostitutes had been raped by a client,” “48% were forced to commit a sexual act against their will,” and 55% were “beaten by customers” (Carter and Giobbe 2006, 28). For comparison, 1 in 6 women in the general U.S. population, and 1 in 33 men, have been the victim of an attempted or completed sexual assault (Tjaden and Thoennes 2000, 13). Undoubtedly, this higher incidence of violence is the product of diverse factors that affect the lives of sex workers. But the altered mindsets criticized by the semiotic objections outlined above offer one possible explanation for this stark reality. If this reasoning is compelling, it raises a significant ethical question that defenders of the MFSW will have to address.

7. Conclusion

I have so far detailed two objections to the MFSW that I argue will persist no matter how the MFSW is structured or what regulations are applied to it, simply because they are inherent in the application of market mechanisms to sexual labor. First, the dynamics of the MFSW make it very difficult for sex workers to give genuine, informed consent in their occupation. Second, the commodification of sex facilitates the crowding out of important moral norms by market values. The new norms emphasized by the MFSW can, in turn, help change individuals’ perceptions and the rules of institutions concerning crimes like sexual assault, increasing the harm suffered by a population that is already especially vulnerable to violence.

However, these objections only speak to the ethical character of sex work. They are not meant to suggest that the MFSW should be prohibited. On the contrary, prohibition of the MFSW is probably not advisable. Satz (1995, 83) points out that criminalization may be nothing but destructive, that “the current prohibition on prostitution renders the women who engage in the practice vulnerable,” and that criminalization, far from eliminating the MFSW, will simply leave sex workers with fewer ways of gaining income and make the remaining avenues for sex work less safe, dominated by pimps and other extralegal machinery.

Partial decriminalization, similarly, is likely to make sex work a more dangerous trade without resolving the objections presented in this article. For example, the criminalization of the buying, but not the selling, of sex (also known as the “Nordic model”) would be more selective in its use of legal sanctions but would not eliminate many of the problems that persist when sex work is fully illegal. A legal structure that requires patrons of the sex industry to remain hidden incentivizes norms of secrecy in the MFSW. When sex work cannot be bought in public, it is bought in private, often in the customer’s home, which is “one of the most dangerous ways to work” (Escobar 2021, 4). Infrastructure intended to publicize or formalize a trade that is meant to be discouraged is prohibited outright: “advertisement of services, renting an apartment or commercial space for work, and hiring a secretary or someone to take appointments are all criminalized under the Nordic [model]” (4). And, despite all these restrictions, this model has not “reduced the amount of people engaging in the sex industry” (5).

This last point challenges the idea that the criminalization of the MFSW is a tool for harm reduction. Peter de Marneffe (2010, 4) maintains, for example, that “prostitution is psychologically destructive… and that prostitution laws reduce this harm, by reducing the number of people who do this work and by reducing the amount of prostitution that is done by those who do it.” The reality of partial decriminalization laws does not bear this out. Full prohibition similarly fails to eliminate the MFSW, though it does force the industry onto the black market (Satz 1995, 84). Attempts to legally suppress the MFSW have not succeeded in lessening the harms associated with sex work directly or in reducing those harms indirectly by reducing the MFSW’s size. They have instead made sex work more dangerous and less profitable without decreasing its incidence.

I have argued that the MFSW, situated as it is in the current social context of our world, cannot be ethically justified. But, if the social, economic, legal, and interpersonal dynamics of the world were radically different, a market for sex work might be easier to defend. I do not intend for this note to contradict my assertion that regulation of the MFSW—the establishment of particular rules meant to structure the market for sex work—is not equipped to address the objections I outline in this article. Said objections are not narrowly institutional, bureaucratic, or regulatory in their scope. They are grounded in broad social realities, and any iteration of the MFSW constructed within those same social realities will be vulnerable to those same objections. Regulations concerning who can sell sex, who can buy it, or where, how, or how often it can be sold will not, therefore, solve our problems. Indeed, the literature suggests that they will make them worse.

However, ethical criticisms of the structures we already have are uniquely able to illuminate the kind of future possibility I suggest above. By emphasizing the shortcomings in our current systems, they point to what a better system might look like. If the norms surrounding sex work could be reliably changed, even if the process of revision was complex and prolonged, the semiotic objection to sex work would lose much of its force. If the financial pressures that attract some agents to the MFSW were reduced, the questions of consent arising in sex work as an occupation would be less crucial. If the trauma associated with sex work was lessened, the difficulty of giving genuinely informed consent to work in the MFSW would be less concerning. Individuals who criticize the MFSW on ethical grounds should not, therefore, rely on demands for prohibition. Instead, they should develop strategies to change the underlying social conditions that make sex work an objectionable market in the first place. If they succeed in doing this, the debate concerning the prohibition of the MFSW may become entirely obsolete.

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