The tragicomic tale of “Kristen” and Client 9 rekindles the perennial debate about legalizing prostitution. And it’s as confusing as ever.

Let’s get past the obvious: there are almost always victims. Set “Kristen” aside for the moment. Client 9’s wife and children surely qualify. But I think few of us would wish to make or keep prostitution a crime solely out of solicitude for the john’s family. Bad as adultery may be, it is not something to punish criminally or even through the tort system. Arguably Client 9 himself is a victim as well. But when society tries to criminalize self-infliction of minor and intangible harm (which was probably what Client 9 anticipated when he started out), the results are not promising. The classical example of trying to prevent harm to the transgressor and his family was Prohibition, a laughable failure. The latest instance is drug prohibition, an ongoing traumatic fiasco.

Prostitution, among other illegal vices, will never be the subject of comparable enforcement effort or expense. Instead, we rest uneasily with the current status where prostitution laws are never repealed but only lightly enforced. Why not just make prostitution legal? The weightiest reason is usually concern for the hooker, who is cast as the most important victim.

That hookers can be victims is well-established fact. Prostitutes are often betrayed by families that should have nurtured them, hooked on drugs, abused by pimps, stolen from, trafficked and sometimes murdered in the end. But always? Otherwise put, if there is a segment of the prostitute population that does not fit the classical victim profile, what do we know about it?

I have recently cast about for some statistics about independent, less-clearly victimized prostitutes. I was astonished to discover how little hard data there are, and how unreliable the available data are. We know a fair amount about the unambiguously abused ones. The ones who might be doing ok, the Kristens, seem to exist in a world without numbers, except for the denizens of the few legalized brothels in Nevada. People taking good care of themselves don’t trouble the emergency room, the taxman, or the social work bureaucracy, and don’t precipitate the formation of statistics.

But this question is, I think, key to our fascination with “Kristen,” whose private identity is now widely known. If Kristen truly is as she seems to present herself, she is a well-compensated independent contractor, living in an attractive apartment house, with a music career of sorts on the side and a family that seems to be supportive. She does not appear to be in thrall to anyone, more entrepreneur than victim. She might be, could be, the genuine item: the happy hooker. And if she is one, then it is possible to be one. And if there really can be happy hookers, then like it or not, that has policy implications.

Prostitution prohibitionists tend to minimize the possibility that any prostitute could live a satisfactory life. (See, for instance, Nicholas Kristof of the New York Times.) Sex, they say, cannot be engaged in commercially without dissociation, a split between the core of the person and her actions that is always by definition a bad thing. Either the dissociation has occurred before the hooker enters the trade (via incest, abuse, or rape) or it is inflicted on the job, or both. Partly as a result, partly as a cause, the hooker’s lot is likely to be affected by drug addiction, deep depression, low self-esteem, and financial dependency upon pimps, to name some of the more oft-cited problems.

Presented as a list of inevitable circumstances accompanying prostitution, these problems would appear to make prohibition a no-brainer. Who could possibly favor giving legal countenance to a trade in which these things are always present?

But there are at least two problems with this picture. First, it is far from clear that the laws forcing prostitution deeper into the shadows have not facilitated the abuses worse than legalization and its attendant regulation would do. Second, the problems may not be inevitable. If “Kristen” is to be believed, they may not have been present in her case.

I am not suggesting that we are to take on faith what “Kristen” and her handlers have said to us about her. But I am suggesting that there may be women out there who do not at first blush conform to the victim stereotype, and that their claims ought at least to be considered.

The prostitution prohibitionists exhibit a bad tendency to ignore the voices and examples of the Kristens, those who claim that free women can enter prostitution as entrepreneurs rather than victims. An excellent example ishttp://www.justicetalking.org/viewprogram.asp?progID=219, a 2002 segment of NPR’s Justice Talking which features a debate between Christine Stark, a former prostitute, now a prohibitionist, and Carol Leigh, organizer of the Prostitutes’ Education Network, who works for prostitute empowerment. (Go to http://www.justicetalking.org/programarchive.asp, and search under “prostitution.”) Leigh and two members of the audience plus two legal Nevada hookers interviewed at the outset all assert that they personally have had mostly good experiences as prostitutes. Each time Stark is confronted with someone’s purportedly not-so-bad real life story, or with the benefits that legalization can bring, she reverts to categorical a priori assertions that prostitutes – all prostitutes – are inevitably victims. She argues that, notwithstanding these upbeat stories, all prostitution is or can ever be is organized rape, and thus it is unthinkable to legalize it. Yet if there is one thing clear in the stories Stark dismisses, it is that they are not stories of rape. If rape is what they describe, then rape is practically a meaningless term. And it is too important to become meaningless.

We know how awful trafficking can be. We understand about incest and depersonalization. We know about the effects of drug addiction on women’s choices. Most intelligent people truly get this. But it is possible to appreciate these things and still conceive that there might be degrees of victimization or even the possibility of prostitution without victimization. “Everything is rape” dumbs down our policy choices.

We cannot abolish prostitution; the only option actually presented to us is legalizing and regulating, or not doing so. And if we legalized, could we possibly improve the quality of life for the women involved? And might we not be better honoring the presumed freedom of contract each woman has in a free society?

I am not convinced either way on this. It seems immensely plausible that a legal pimp like the ones who run the Nevada bordellos, taking the house’s standard 50% and issuing a W-2 or 1099, while hardly the perfect boss, is likely to be a lot better for the woman involved than criminal pimp who just grabs the money out of her hand and beats her. And yet there may be counterintuitive aspects of the situation; claims exist that the market effects of legalized sex commerce engender more, not less, illegal and predatory sex commerce and trafficking in those countries that have legalized the sex trade. And obviously, freedom of contract for a tiny minority of happy hookers should take a lower public policy priority than the health and well-being of large exploited masses.

It all comes down, therefore, to what the experience elsewhere has been with legalization. Has it increased safety or misery? There is evidence both ways, and none of it seems very reliable. It would be most helpful if the numbers we had from places where legalization has been tried were more often assembled by scholars not connected with either side in the debate, and assembled with proper experimental controls; at present that almost never seems to be the case.

We can all have fun laughing at Client 9, but his designated playmate has reintroduced us to a baffling public policy problem that is no laughing matter. For that inadvertent benefit to public discussion, she (and hence he) deserves our thanks.