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July 15, 2006

Prostitution and unemployment benefits

Lately, I've been hearing a very odd argument against legalizing prostitution, namely, that women on unemployment insurance might lose their benefits if they refuse to sell sex.

This argument is thoroughly unconvincing. First, there little evidence to suggest that this actually happens in countries with legalized prostitution, let alone that the problem is widespread. Second, the theoretical possibility only arises if you allow businesses to hire prostitutes as employees, and if the UI system requires people to take any job available. So, at best, the argument applies to countries with German legalization models and German-style unemployment insurance systems, neither of which we have in the U.S.A. Finally, the cost/benefit analysis doesn't work because the status quo forces more unwilling people to sell their bodies that the proposed alternative.

Rumor has it that since Germany legalized prostitution two years ago, women have been losing their UI benefits for refusing to take jobs in brothels. Trish Wilson points to a Snopes report on the subject which concludes that the story is more urban legend than reality.

According to Snopes, the English-speaking world started worrying about German women being forced into prostituiton in 2005 when Clare Chapman published this article in The Telegraph about an unnamed 25-year-old German woman who sought work through a job center and got a callback from a brothel.

Chapman does not claim that the authorities actually threatened the unnamed jobseeker with benefit cuts for refusing the job. She merely points out that, since German unemployment insurance laws require employable adults to take any available job. She notes that since there is no specific exception for the sex trade, it is technically possible for a German citizen to lose UI benefits for refusing a job at a brothel that recruited through the state-run job offices.

There is no evidence that any German worker has ever lost UI benefits for refusing to work as a prostitute.

Yesterday, Robin from 3QD left an excellent comment dispelling some common myths about unemloyment insurance benefits and active employment policies:

No one is denied UI because they don't decided to post signs offering to mow lawns, paint houses, offer moving services. If the stipulation for UI was that you take a job, any job--and practicably what does that mean? that you've applied for every available job that you have a possible chance of getting? that an unemployed engineer must take a job at a fast food restaurant? (which would quite a waste of considerable social investment in skill--or go freelance, and that UI would be disbursed only if neither of these panned out, no one would get UI.

Even the active labor market policies of Sweden (which at their height from its adoption in 1951 to the mid-1980s), in which the state found you a job, and if you didn't take it benefits were cut for 90%+ of wage to 0% did take into account factors such as skill matching, location, etc. And that's were the state found a job for you.

One has to show a reasonable attempt to find a suitable job for UI, which is all that can be asked. Going into self-employment first is not a condition.

I don't know exactly how the American unemployment/welfare system works, but it doesn't seem that the technicalities of the German system are directly relevant. So-called welfare reform pushed a lot of people into bad jobs. However, these welfare recipients were pushed into the workforce because their benefits were time limited, not because their benefits were conditional on not having any viable job offer. If any policy wonks want to explain in more detail, please do, the aisles are yours.

Germany's form of legalization allows businesses to hire prostitutes as employees, but there are other legalization options. Here in the U.S., we could strike down the laws that criminalize the exchange of sex for money without decriminalizing brothels or corporate pimping.

It is important to legalize and regulate the sex trade in ways that enhance the autonomy of sex workers. There are many good reasons not to let sex work become another service sector job.

It seems only fair that the world's oldest profession should be granted the legal status of other self-regulating profession. Sex workers should have professional organizations that license and certify members according to the standards of their peers. Doctors and lawyers have a similarly sweet deal in which the state agrees to impose a monopoly on the supply of healers and advocates in exchange for quality assurance. If the law said that you had to be a registered member of your State Prostitute's Guild in order to legally sell sex, then only people who actively sought to qualify themselves would be eligible to work as prostitutes. (That would solve the UI problem, even if we moved to aggressive active employment policies.)

Even in countries where legalization could threaten UI benefits, this seems like a relatively trivial legal technicality that's unlikely to affect anybody's life. Compare that to the status quo in which criminals have the monopoly on the sex industry. Human traffickers and other pimps force people into the sex industry routinely. They reap huge profits because they don't have to compete with legitimate businesses. They also get away with outrageous abuses because the victims won't seek legal protection. As long as prostitution is illegal, pimps can extort from sex workers with impunity. Since prostitutes can't organize and demand better compensation, they are also more likely to be trapped by poverty. No doubt, many stay in the life because they are too poor to retrain or retire.

If we want to save unwilling participants from the sex trade, our first priority should be to legalize prostitution and eliminate the criminal middle-men who thrive in the black market. The UI concern is truly a red herring.

[x-posted chez Berube]


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"Red herring" is a very appropriate term, considering the most likely proponent of that fallacious theory would be a dyed-in-the-wool red-stater. Next they'll tell us that women "forced" to work as hookers will also be "forced" to get abortions if they get pregnant on the job.

And this will all be Bill Clinton's fault because he put his penis into the mouth of a consenting adult.

The thing about the whole legalisation of prostitution thing is that it probably doesn't matter whether prostitution is illegal or legal, but rather 1) how it's treated by the law (if legal, do the courts, related laws and police actually deal with cases of abuse and general badness related to the sex trade, or, if illegal, do they punish the often economically if not physically forced prostitutes for trying to survive while the abusers and johns get off without rebuke or trouble by the courts and police because they're victimising prostitutes, who the system considers to be inherent scum?) and 2) whether such laws and the society the sex trade exists allow unionisation of the prostitutes, by the prostitutes, so that they are able to in some way interact (and affect society democratically, as all groups should be able to) with society rather than being this entirely passive and acted upon group who is open to predation because their fate is decided by people who are not them, and would not take their feedback about policies and schemes that affect the sex workers even if they had a method to reply, rebut or check bad and harmful schemes.

Mildred, in response to your first point, there's already a country that explicitly lets prostitutes off the hook while punishing johns - Sweden. Expectably, Sweden's policy drove prostitution underground just like the normal mode of criminalization, and on top of it created a wave of prostitutes or women pretending to be prostitutes using the legal position to blackmail clients.

Legalisation could save lives of the willing participants as well too. It always saddens me to hear of the women killed by the johns and what seems to be less than public outrage about their horrific deaths. Almost a sense that by choosing to enter the sex trade they were somehow less valuable human beings who "knew the risks". We may never see their social standing elevated to that of Joss Wheden's companions, but it is called the oldest profession after all. The establishment of a guild(or academy lol) with an obvious health benefit package is in order, plus regular inspections and clean safe surroundings for trade workers. It aint ever going away, so lets try to make it bettah. Marginalize mean people instead. It's their turn.

I've heard some really farfetched arguments, but this one takes the biscuit. Do the people who make this argument imagine that if, say, an accountant is laid off from her job and collects unemployment, she might be forced to take a job as a dishwasher?

As Lindsay indicates, in the U.S. -- unlike Germany and elsewhere -- a U.I. recipient need not take any available job. She only needs to be "actively seeking work". In practice, this often doesn't require much more than clipping job ads and showing copies of letters you've sent applying to jobs you are nominally qualified for.

The question of legalized prostitution and unions is far more significant and interesting. The right of prostitutes to form unions and bargain collectively would depend, foremost, on whether they are employees or independent contractors. While the latter could form a trade association, they would face antitrust liability if they attempted collectively to set wages or other terms and conditions of work. This issue has arisen in regard to other, legal, sex trade occupations, like nude dancers, where club owners have fought unionization efforts by claiming the dancers are independent contractors. I'm very proud to say that my current law firm won that case (before my time).

Compare that to the status quo in which criminals have the monopoly on the sex industry. Human traffickers and other pimps force people into the sex industry routinely. They reap huge profits because they don't have to compete with legitimate businesses. They also get away with outrageous abuses because the victims won't seek legal protection. As long as prostitution is illegal, pimps can extort from sex workers with impunity. Since prostitutes can't organize and demand better compensation, they are also more likely to be trapped by poverty. No doubt, many stay in the life because they are too poor to retrain or retire.

Your description of the current state of the sex industry strikes me as as much urban legend as the stories of women forced into prostitution to avoid losing unemployment benefits. What's your source for this information?

I'd say the involvement of criminals and even organized crime in the sex industry is a no-brainer. Of course they are involved, sex is a money making machine even when its legal. Add a little prohibition and the price just goes up.

Police should be protecting adult sex workers and focusing their attention on stopping the abuse of minors.

I don't pretend to know that much about prostitution where it is legal in the US but I spent my highschool and college years just down the road from Story county, Nevada, one of the counties where prostitution was legal. Most of us knew where its brothels were. Back then, my mother worked as a secretary in the state's health department and one of her tasks was compiling reports on outbreaks and instances of STD's. Doctors were supposed to file such reports whenever they encountered a patient with these diseases. This was over a decade before HIV so all concerned had the confidence that a prompt course of antibiotics could put the little embarrassment in the past. Clusters of infections sometimes pointed to the source. Interviews with state health workers were sometimes necessary to find the carrier that connected the cases of disease. Unstable living arrangements and going in and out of the trade as their sometimes precarious finances dictated were the source of a lot of frustration on the part of the health workers who needed to track down the contacts for an outbreak. [read: "way broken lives"] I don't know if many of the girls freelanced. The brothels being fixed locations and having a traffic that included johns who were transient, came in for wary and steady scrutiny. The state's health department, as viewed from the customer's perspective, was performing a very important service though its not clear how many people were aware of this regulated aspect of prostitution. The brothel owners definitely gained the benefit of reputation for offering a safe service. And who was most likely to wind up in the news for tax evasion? The brothel owners.

Speaking from personal experience (ah, the bursting of the tech bubble), the "seek work" requirements to collect US unemployment are fairly lenient. You have to make regular attempts to find work (I believe it was something like four contacts per week) and keep a log of activities to report to the unemployment office. They expect you to be looking for appropriate work within a reasonable salary range of your previous employment (no one expected me to be applying for jobs flipping burgers). Of course, your benefits only last six months, so there is a strong incentive to lower your standards as the benefit period wanes...

Just to verify that the story about Germany is a 100% urban myth; Snopes understate the case. For example, the telegraph article claims that "job centers must treat employers looking for a prostitute in the same way as those looking for a dental nurse." In the German article on which it is based, this statement is not a factual one but is the uttering of a sex industry representative who uses it to protest the German job centers' policy of *not* forwarding job ads from brothels.

According to the original source, what happened is that a job center clerk accidentally forwarded a brothels' job ad because the establishment described itself somewhat indirectly and the clerk didn't catch the difference to a normal nightclub. This incident was actually widely reported in the German news, but generally under "News of the Weird."

By the way, Snopes' statement that prostituion was legalized in Germany in 2002 is not quite correct either. Prostitution was legal before, but prostitutes could not be employees, so the theoretical possibility of a brothel job ad is indeed new as of 2002.

The TAZ article does raise one serious issue, which is that there is a gray zone. What about jobs cleaning in a brothel? Tablewaiting? Tabledancing? The current state is that such job ads are not forwarded either, but janitorial positions in videostores with adult sections are, so there's one conundrum for law students to practise their skills on.

Most of the concerns I had have been shot down. Thankfully, I had never had occasion to learn about how unemployment insurance works.

It's not entirely farfetched. In the Netherlands prostitution has been legal since (iirc) 2002 and there was a minor kerfluffle when some city council (iirc Groningen) offered prostitution as suitable work to its welfare clients[1]. This was however nipped in the bud quite fast and nobody has ever been punished for refusing to work as a hooker.

[1] The Netherlands has a two tier welfare system: in the first tier it is much easier to refuse work than once you pass into the second tier, it no longer needs to be the same work you did before you became unemployed, but "any suitable work".

Yeah, I'd heard of the Netherlands case, but not the final resolution.

It seems to me that there's a very simple solution to these problems - and it doesn't involve the criminalisation of prostitution. The state should not have the right to compel anyone to take any work they find morally repugnant (I'd probably argue that the state shouldn't have the right to compel anyone to take work, period, but lets stay focused). For example, vegans should not have to fear loss of benefits for refusing to work in slaughterhouses. Quakers should not be compelled to work in munitions factories. Whether the work in question involves sex or not isn't really relevant.

I agree that legalisation is the only way to go, for various political and welfare reasons, but regulation is a very bad idea. First off, let's look at the current mini-mobs that act more like parasites than industries. Does anyone think that the medical profession does its best to serve consumers? Are we that naive? How about lawyers? Where did that little monopoly lead? Are they more honest because of the fierce self-policing? ;-)

"Self-regulation"--in quotes because a collective body plague by inner-politics is not a "self"--is nothing more than a state-granted and state-defended monopoly. What's the point of paying taxes so that one profession or another can extort its consumers? It is "fair" for someone to pay taxes only so that the state can spend that money to prevent him from engaging in mutually-beneficial free trade?

And then there's also regulatory capture. Politicians are not perfect therefore the state is not perfect. If there's one real train-wreck that needs addressing then that's the political world, before any state involvement in economic matters might have a chance to be something else than a total failure.

There's a real danger with union-istic language such as that in the article. On a free market, the real wage is determined by the degree of consumer satisfaction, scarcity and so on. On the other hand "organize and demand better compensation" just screams of monopoly (if state-granted, then the problem is worse): you end up blocking entry, reducing consumer satisfaction, disincentive to innovate and so on.

Other than that, let's not conflate the issue of human trafficking and violence that surrounds many illegal trades with the business of prostitution. Does that fact that many diamonds come from Sierra Leone means that we should outlaw the trade in diamonds? We're missing a counter-factual here in that we don't know how full legalisation would impact the trafficking (the little evidence from European countries seems to be inconclusive). The connection between poverty, abuse and prostitution can be almost entire explained by the "underground" status, not the other way around.

well, it's one thing not to have to take such work, but personally i would be incredibly offended to even be considered, to just to get the call from the brothel - this part did happen in germany, although perhaps the lady was not actually penalised for refusing the offer. but the call itself is an insult, and in fact i should get to sue the labour agency for releasing my details to a brothel, *and* the brothel for reputational damage and distress.

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