Zumba, Libertarian Style

I’m a regular reader of Jack Marshall’s Ethics Alarms blog, in which he discusses ethical issues that arise in the news of the day. He calls out a lot of public figures for their shady ethics, but he also gives them credit when they get something right. I agree with much of what he has to say, but when his ethical analysis crosses over into matters of public policy — crime, immigration, and the free market — his analysis is not friendly to libertarian values, and I often find myself in angry disagreement.

A few days ago he wrote about the Zumba fitness instructor in Kennebunk, Maine who has been charged with prostitution. The cops claim to have her client list and detailed records, and as they investigated those men, they apparently planned to release their names.

Jack concludes, rightly, that it’s not a good idea to release the names, but in the course of the analysis, he gets a lot wrong.

We begin, on Ethics Alarms, at least, with the premise that prostitution is damaging to the fabric of a healthy society, and should be prohibited by law. I’m not going to debate that issue again here, not today. My position is that prostitution is not a “victimless crime,” that it exploits and traps women and destroys families and lives, and government has a legitimate interest in forbidding it. I know the libertarians disagree. That’s not the issue here.

Fair enough. He’s interested in a particular issue, and he doesn’t want to talk something he considers out-of-scope. I didn’t leave any comments there. But I’m sure as hell going to talk about it here.

My position is that prostitution is a consensual crime — a crime that makes it illegal to do something even though everyone involved has given their competent consent — and that it is absurd and immoral to imprison people for such crimes. It is prison that traps people, and it is prison that destroys families and lives. Government has no legitimate reason for interfering with consensual behavior. That is the issue here.

When you’ve been a libertarian — or classical liberal or whatever you call it — for as long as I have, debates over things like whether the cops should release the client lists begin to seem very strange. It’s like listening to a debate about a black man marrying a white woman in which both sides want to throw the black guy in prison, and the debate is whether or not the white woman should be shunned by her family. There’s a difference of opinion, and I know which side I’d pick (if those were the only two), but it really seems to miss the point in a bad way.

Anyway, Jack presents his analysis:

That brings us to ethical balancing, or Utilitarianism. There are a set of predictable desirable and undesirable results that will come from releasing the names, and another set that will result from not releasing them:

Since I accept the libertarian position, my utilitarian calculation is a little different from Jack’s…

Release the names: Pro.

It’s fair, since woman involved already has had her identity made public.

Nope. It was none of the cops’ business when they released her name, and it’s still none of the cops’ business. Two wrongs don’t make a right.

The shaming will help enforce the law, and discourage violators.

The law has no legitmate purpose, so nothing good comes from enforcing it or encouraging people to obey it.

The violators have no right to keep their sexual infidelity from spouses and lovers. They are accountable and responsible for their actions, and this is a completely predictable and reasonable consequence that they knowingly risked occurring.

That something is predictable doesn’t make it right. If they walked around in a bad neighborhood late at night carrying a pile of cash in a see-through plastic baggy, it’s highly likely they would get mugged. This too is a completely predictable consequence that they knowingly risked occurring, but that doesn’t mean the mugger is in the right.

Similarly, just because they could have predicted the possibility of shame doesn’t make it right for the police to cause that shame.

Public officials particularly should be exposed when they break laws and defy community standards of conduct.

Agreed in general. But it doesn’t help in this case. 

If family members are adversely affected, that is not the proper concern of the law, the courts or society. Whatever harm they suffer is the result of the lawbreaker’s anti-social conduct.

No, no, a thousand times no!

One of the recurring themes of this blog is that when doing a utilitarian calculation, all the costs and benefits matter. Criminals are harmed by the justice system, many of them quite severely, locked up under dreadful conditions. A proper utilitarian calculation doesn’t pretend the criminals don’t suffer, rather it acknowledges the full measure of their suffering and then examines whether that suffering is necessary to prevent even greater suffering.

Sure, when the clients decided to hire a prostitute, they should have taken into account the possibility of discovery and the subsequent harm to their families if their behavior is publicized. Their decisions may very well make them bad people. But the question now before us is not whether they did the wrong thing, but how we (or the police acting in our names) should respond if we want to do the right thing.

If the police reveal the clients’ names, it will almost certainly hurt their family members. The utilitarian question is whether revealing the names will produce benefits, fully accounted for, that will be worth the cost to the families.

Seeing little benefit, I vote no.

If society protects wrongdoers from the natural consequences of their conduct, it encourages wrongdoing.

Agreed completely. Of course in my libertarian view, prostituion by itself is not wrongdoing. Rather, it is the cops and the prosecutors who are the wrongdoers, butting in where they have no right, interfering with the free market transactions of consenting men and women.

I pretty much agree with all the cons:

Release the names: Con

The harm is vastly disproportionate to the conduct.

Those whose names are revealed will lose jobs; families will be disrupted, careers and reputations will be destroyed.

There will be no degrees of shame. One time clients will be as humiliated as regulars.

The presence of the name on the list is insufficient evidence, on its own, to justify the degree of harm that will result from the list’s release. They will be pronounced guilty without trials or due process.

Making such lists public will encourage prostitutes to seed their clients lists with the names of prominent individuals as leverage in the event of their arrest.

A few more notes:

Several news stories suggest that the alleged prostitute may have been working with a private investigator to record her sex acts with clients and then possibly blackmail them. If that’s true, what she did is in no way a consensual crime. It’s much worse than the prostitution.

Since I started writing this, the police have revealed a batch of names although I haven’t seen any of them in the news yet. Maybe it wasn’t anyone newsworthy.

The men have apparently been charged with a “Class E misdemeanor of engaging a prostitute,” which makes the release of names somewhat legitimate, since we (mostly) don’t have secret prosecutions in this country.

I’m not sure what the evidence is against them, but if it’s only the prostitute’s records, I’m curious how the police will establish what those records mean. Did she confess? Will they immunize her to get her testimony? Do they have some sort of smoke-and-mirrors “prostitution expert” to explain it? Is it all just a scheme to get some of the men to confess?

Sigh. No good will come of this.

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