Should People Be Free To Be Enslaved?: Polygamy, Prostitution, and the "Consenting Adults" Argument

By SHERRY F. COLB

Wednesday, Sep. 19, 2007

Recently, Warren S. Jeffs was charged with two felony counts of rape, as an accomplice. Prosecutors allege that Jeff forced a 14-year-old girl to marry her older cousin, who subsequently forced the girl to have intercourse with him.

As the spiritual leader or "prophet" of the Fundamentalist Church of Jesus Christ of Latter Day Saints ("FLDS"), Jeffs has allegedly been involved in facilitating many more marriages involving underage women, including plural marriages, than the charges against him reflect. As FindLaw columnist Marci Hamilton suggested in her persuasive essay on the subject, Jeffs's arrest could signal a new willingness on the part of our public institutions to prioritize children's rights over absolute religious prerogative. It could also, I would suggest, highlight a dark side to polygamy - one that belies the claims of those who defend it as a "private" matter between consenting adults.

At the same time, as Bob Herbert suggested in a heartbreaking and compelling New York Times column, the practice of prostitution, in Nevada and elsewhere poses a threat to the safety, wellbeing, and freedom of women and young girls who find themselves caught within its web. Such stories likewise call into question the suggestion by prostitution's defenders that the oldest profession ought to be treated as a private affair between consenting adults, inappropriate for criminal sanction.

Polygamy and prostitution are, of course, distinct from each other in an important respect. Fundamentalist Mormons today (and Mormons as a group between 1852 and 1890) have practiced polygamy as a spiritual commandment, one that co-exists with other commandments that prohibit prostitution among the many sexual indulgences that constitute sinful behavior.

Yet polygamy and prostitution also share something in common: Both involve sexual interactions in which adult women (as well as minors) can, at least in theory, give consent. As such, both of these practices have defenders not only among those indifferent to women's rights, but also among people who care deeply about freedom and autonomy for women.

A Right to Be A Plural Wife or a Prostitute?

Those who view plural marriage or polygyny (polygamy involving multiple wives, but never multiple husbands) as a religiously-mandated behavior would likely find insulting the comparison to prostitution. They might point out that prostitution represents the absolute commodification and debasement of sexuality, while plural marriage is a spiritual mission directed by God. In both cases, though, we have a widely condemned and criminalized behavior in which sex is an important component and which proponents claim causes harm to no one because everyone involved has given consent.

Those who favor the legalization of prostitution argue that, like consensual sexual relations between adults of the same sex or of different racial groups, consensual sex between a prostitute and a client is fundamentally private and should not be criminally banned. People go to prostitutes for a variety of reasons, some of which overlap with the motives of those who seek non-compensated sexual congress, and it is not, on this approach, the business of government to interrogate or punish people for voluntarily pursuing their sexual preferences in private.

Those who support the legalization of polygamy make some of the same arguments. Though one could invoke religious freedom on behalf of the FLDS, the U.S. Supreme Court has long approved of prohibitions against marrying more than one person, even in a past era when the constitutional standard for evaluating incursions on religious freedom was more exacting than it is today. Defenders of polygyny thus tend to rely, in addition, on the argument that a woman who wishes to marry a man who already has a wife should have the freedom to do so, as a matter of personal, sexual autonomy.

Some plural wives have even spoken out publicly to say that their lives are, in many respects, better than those of women married to monogamous men, because the burden of caring for a man and his children can be distributed among what amounts to an extended family network of women. Prostitutes sometimes say similar things about their profession - that providing sex for money, for example, frees them from many of the ordinary (and sexist) obligations that a wife might have to her husband. As I outlined in a column several years ago, the two institutions, of marriage and of prostitution, share exist some uncomfortable similarities.

One response to these autonomy-based arguments is to say that prostitution and polygyny are both inherently degrading to women, because they treat women as commodities for sale or for collection. Regardless of what might happen in an individual case, this response contends, the deep meaning of these practices is destructive to women's status, and their criminalization and ultimate abolition is desirable for that reason. In other words, an individual woman should not have the right to consent to exchanges that more broadly damage the ways in which women and girls, as classes, are viewed in society. On this view, moreover, if an individual woman thinks she is benefiting from polygyny or prostitution, she is simply fooling herself and falling prey to misogynist thinking.

This sort of response plainly has a paternalistic flavor to it. It suggests that the adult women who agree to be prostitutes or plural wives have "false consciousness" and do not realize that they are actually being humiliated as women (and accordingly humiliating other women too). Such an argument can be dangerous, because similar arguments can be mobilized against almost anyone who seeks the right to do or say unpopular things. For example, it was not that long ago that women were excluded from professions far more prestigious than prostitution on the ground that - regardless of what women thought or even insisted they wanted to do - such professions were destructive to the natural inclinations and needs of the "fairer sex."

Reality Is Coercive; Freedom Is Illusory

A more potent argument against the legalization of prostitution and polygyny relies on the reality of what takes place, respectively, within these two institutions. As Jon Krakauer powerfully demonstrates in Under the Banner of Heaven: A Story of Violent Faith, polygyny within the FLDS faith is not just symbolically misogynistic. It is regularly, in practice, a zone of violence and persecution of women, many of whom are quite young and lack the maturity and/or legal capacity to consent to sexual conduct and to marriage.

In a similar vein, Bob Herbert's column, mentioned above, makes and supports the claim that in reality, women in prostitution are not free. Herbert says that "[r]eal-world prostitution, in whatever guise, bears no resemblance at all to the empowerment fantasies of prostitution proponents. I have never seen such vulnerable, powerless women as those in the sex trade, legal or illegal." Herbert had also written an earlier column calling our attention to the harms of prostitution in Las Vegas, and taking issue with Mayor Oscar Goodman for enthusiastically supporting the proliferation of brothels in his city. Mayor Goodman's response to Bob Herbert's exercise of free speech is telling: He said "I'll take a baseball bat and break his head if he ever comes here."

The Slavery Analogy

To draw an (admittedly imperfect) analogy to both prostitution and polygyny, consider slavery. The dominant mythology in the South, during and after the Civil War, included the notion that slaves actually liked being slaves, as the condition supposedly fulfilled their natural destiny. D.W. Griffith's famously controversial film, The Birth of a Nation, displayed this mythology when it depicted a slave woman angrily resisting abolitionists' efforts to terminate her desired (and, implicitly, desirable) status as a slave.

Slavery in this country was not, of course, even nominally consensual. The coercion involved in the practice was legally enshrined and unambiguous. Prostitution and polygyny are quite different in that respect: Neither existing laws nor proponents of legalization seek to protect a man's right to force multiple women into marriage or to sell unwilling women to violent customers.

However, numerous books on the subject, including Doctor Alexa Albert's fascinating story, Brothel: Mustang Ranch and Its Women, attest to the reality that "freedom" within the world of prostitution exists, if at all, mainly at its threshold, that is, when one enters the profession. For many, moreover, the threshold is crossed prior to the age of consent. And once a prostitute, a woman may not be able to exit without facing great obstacles and potential danger to her life. Many ex-plural-wives have had similar things to say about plural marriage within the FLDS faith: they could not leave without facing formidable opposition and obstacles, including the possibility of physical violence.

A Compromise Solution: Criminal Immunity for Prostitutes and Plural Wives

I examined, in a different column, the claim that abortion and euthanasia are only apparently "freedoms" but in fact represent coercive options that, once available, can easily become mandatory. In that column, I rejected this claim, concluding that the evidence does not support it in connection with either abortion or euthanasia. To the extent, however, that the claim has greater resonance in the context of polygyny and prostitution, I would suggest an approach to these practices that mirrors the approach taken by much of the pro-life movement to abortion.

As I discussed in another recent column, many of those who condemn abortion as murder nonetheless support an exemption from criminal penalties for the woman having the abortion. I would propose such a regime, not for abortion, but for prostitution and polygyny: The practices should continue to be unlawful, on this approach. However, prostitutes and plural wives should themselves enjoy an exemption from criminal consequences. As the victims of these practices whose "choice" is (and whose legal responsibility therefore ought to be) absent, prostitutes and plural wives would then have the power to blow the whistle without fear of legal repercussions.


Sherry F. Colb, a FindLaw columnist, is a Visiting Professor at Columbia Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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