Kennebunk, Maine’s popular Zumba dance instructor Alexis Wright and her “business partner” are being charged with solicitation and prostitution. Now the Maine Supreme Judicial Court is about to decide whether Wright’s substantial client list should go on the public record, as it will unless the court agrees to put it and its names under seal. Defense attorneys will argue that the harm that will result from allowing Wright’s “johns” to be outed to their families, employers and neighbors is too great. “We think there’s a really important principle at stake here: These people are presumed innocent,” defense attorney Stephen Schwartz said. “Once these names are released, they’re all going to have the mark of a scarlet letter, if you will.”
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.
The issue is whether, in a community that accepts that premise, the men who engage in the criminal activity should be shielded from the consequences of their conduct, which they knew was illegal and that their community disapproved of it, while the woman who they engaged in it with them is publicly prosecuted and shamed. Finding the most ethical solution requires choosing the right ethical system. An absolutist approach would hold that the truth is always desirable, conduct should have clear consequences, and wrongdoers should never be shielded from the consequences of their wrongdoing.. Reciprocity, a.k.a. The Golden Rule, is simpler still: if you were one of the men on the list, wouldn’t you want the courts and the community to apply kindness and mercy? Nobody will be hurt if the names aren’t released, and many will be harmed if they are.
The situation doesn’t fit absolutism or reciprocity, however. To meet Kant’s requirement ( “the Rule of Universality) for a desirable absolute rule, one must conclude that it will always work for the best, that the best society is one that always reveals the details of legal breaches to all. I don’t think that universal shaming is a good idea; I think we should have a right to our secrets, and that sometimes the government should help us maintain our privacy. Reciprocity, meanwhile, is a very flawed ethical system when one is building a coherent system of laws, enforcement and punishment. Looked at subjectively, punishment is always undesirable, and mercy, kindness and forgiveness are always what we hope for, even when we don’t deserve them. If I were Jerry Sandusky, I’d want the legal system to give me another chance. He doesn’t deserve another chance, however. Society is best served by locking Sandusky up and soldering the cell door so it will never open again.
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:
Release the names: Pro.
- It’s fair, since woman involved already has had her identity made public.
- The shaming will help enforce the law, and discourage violators.
- 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.
- Public officials particularly should be exposed when they break laws and defy community standards of conduct.
- 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.
- If society protects wrongdoers from the natural consequences of their conduct, it encourages wrongdoing.
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.
Close one. It’s a tough call.
I think, however, the best of the arguments are on the Con side. I think more harm will be done to the community, on balance, by releasing the names. There is a lot wrong with sealing them too, but that is how it always is with decisions made in utilitarian systems. The ends, in this case, justify the means, with the ends being protecting privacy and innocent parties, and the means being allowing wrongdoers to get away with fewer adverse consequences than they deserve.
Pointer: Rick Jones
Facts: Christian Science Monitor
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at firstname.lastname@example.org.