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Right to Sexual Autonomy and Prostitution:

A question to those readers who (1) support, as a constitutional matter, the recognition of a right to sexual autonomy -- because they think the federal constitution protects it (see Lawrence v. Texas), because they think some state constitutions that expressly mention a right of privacy (Alaska, California, Florida, Hawaii, Montana) protect it, or because they think the constitution should be changed to protect it, but (2) don't believe this right should extend to a right to patronize prostitutes: Why do you think so?

I can think of some possible answers. For instance, (A) perhaps you might think that the right to sexual autonomy is inherently limited in scope to those behaviors that seem likely to lead to an emotional relationship, prostitution is quite unlikely to do so, and while casual noncommercial sex is often unlikely to do so, the law protects such sex because of the difficulty of distinguishing it from emotionally significant noncommercial sex. (I think that's probably the best reading of Lawrence.)

Or (B) you might think that the right to sexual autonomy presumptively covers all sexual conduct, including prostitution, but this presumption is rebutted (perhaps under some "restriction narrowly tailored to a compelling interest" analysis) by the government interest in preventing the harmful consequences of prostitution, such as preventing the spread of sexually transmitted diseases, or preventing various harms to the prostitutes themselves. (Though, if you think this, do you think the government should have to show, in proving such narrow tailoring, that banning prostitution actually fights sexually transmitted disease and harm to the prostitutes better than allowing prostitution and regulating it would?)

Or (C) you might think that rights are generally limited only to noncommercial behavior. But, if that's so, do you likewise think that it would be constitutional for the government to bar payments of money to authors, publishers, criminal lawyers, private school teachers, abortion providers, contraceptive vendors, and the like?

In any case, please let me know your views, whether they fall in these categories, or whether they're something else altogether. I'm not asking this to try to disprove the propriety of the sexual autonomy right, or to try to prove that it indeed includes the right to engage in prostitution. As I mentioned, I think Lawrence may plausibly read as distinguishing the two for constitutional purposes; I even so note, tangentially, in an article I'm writing (an article that's not primarily about sexual autonomy or prostitution). But I'd like to hear what others think.

John Chelen (mail):
You've made several good points about the flaws in current campaign finance laws. Let's look at a related problem. Shouldn't the IRS reject Fox's tax returns if they deduct cable "news" show costs as legitimate business expenses? They look to me like campaign contributions, or at the least, personal politically-motivated expenditures not deserving treatment as ordinary business expenses.
10.26.2006 3:32pm
John Chelen (mail):
My prior post was intended for a different blog, where I will now post it.
10.26.2006 3:34pm
Charles Thomas (mail) (www):
I believe that prostitution ought to be legal under Lawrence. However, I also believe that states have the power to regulate the manner in which prostitutes operate.

On the seller side, I do not believe that there would be any problem to require licenses- as Nevada does. States could require the use of condoms or restrict the physical location (Hooker Free School Zones, perhaps?). Obviously states could regulate working conditions (clean sheets after every session, etc).

The point is that there is a big difference between permissible and unregulable.
10.26.2006 3:43pm
Ty:
I'm a firm believer in Lawrence, but I think both (A) and (B) provide valid exceptions under which a state may criminalize prostitution.

Somewhat off topic, I think a more interested substantive due process question is whether a state may criminal homosexual incest between consenting adults. I can't think of any justification for criminalizing that conduct aside from morality and general ickiness, ala the now-defunct Bowers decisions.

-Ty
10.26.2006 3:56pm
Hattio (mail):
No comments as far as Lawrence, but as far as the state right to privacy in Alaska, the seminal case (Rabin) involved using marijuana in the privacy of your own home. It specifically excluded commercial possession of marijuana from it's protection, I believe because that commerce is not inherently a "private" act. (Take this with a grain of salt, I haven't read Rabin in a long time). The same logic could apply to prostitution. Of course, there was also a distinction made between in home use and out of home use. This distinction would allow the criminalization of most prostitution as its currently practiced, but wouldn't address the difference between commerce and private acts.
10.26.2006 4:12pm
Buck Turgidson (mail):
Hattio has a point on (C). But also consider the limits on the free speech protections in re commercial speech. It makes perfect sense to have a public policy that regulates commercial conduct as non-private. As for home/outside distinction, would we have to get tax forms to see if home is being used as a business deduction? In any case, why would the right to privacy apply to commercial transactions?

FWIW I don't buy into (A). But I can wedge (B) here very easily. Consider the state interest in prosecuting someone who knowingly seeks to infect others with HIV after discovering his own status. If there are no exception to the private conduct, wouldn't this be a case of "buyer beware!"? Otherwise, we can wiggle in an exception for public welfare, i.e., criminalizing such conduct for the protection of the public. I am not equating the two issues. But it is not difficult to justify a public policy exception on these grounds as well.

So you can have a public policy regulation in the "right" is not protected or a public policy exception if the right is technically protected.
10.26.2006 4:32pm
StatingtheObvious:
Charles Thomas: "On the seller side, I do not believe that there would be any problem to require licenses- as Nevada does. States could require the use of condoms or restrict the physical location (Hooker Free School Zones, perhaps"

Yes, we wouldn't want to interfere in the public school teacher monopoly...
10.26.2006 4:54pm
Kovarsky (mail):
I think prostitution should be legal, although I have a major reservation. It's going to drive the price way down (I'm serious), which means that socioeconomic status will become an even more significant determinant of that career choice. That dynamic is very troublesome, but in the endgame I think once you peel away that layer and say "you should have sexual autonomy except in situations where your social status creates a financial imperative to....," your principal has swalled the exception.
10.26.2006 4:57pm
Kovarsky (mail):
My comment was a philosophical one only - I don't think any part of the consitution protects prostitution.
10.26.2006 4:58pm
Paul Allen:

I believe because that commerce is not inherently a "private" act.

Okay, but the "right to privacy" so named merely constitutes an analogy. Reasoning too strongly on the basis of the name is an opportunity for error.

I would say that the "right to privacy" does provide a justification for protecting private acts, but neither confirms nor denies whether or not "liberty" so named in the constitution also covers acts which are not private.

Clearly in some cases it does: speech, assembly, carrying firearms openly, etc.
10.26.2006 5:00pm
PersonFromPorlock:
I don't believe there's anything about sexual prostitution that distinguishes it in kind from, say, food prostitution, otherwise called the restaurant trade, in which what ideally ought to be personal and given out of the goodness of the donor's heart (i.e., food) is in fact sold impersonally to strangers.

That said, sexual prostitution does represent a considerable public health problem (kind of like the restaurant business again) so regulation of it, and making unregulated sexual prostitution illegal, is certainly reasonable.
10.26.2006 5:12pm
Ty:
To take Paul's comment a step further, I would note that some of the explicit rights that implicate the penumbral right to 'privacy' are inherently commercial in part. Any right to bear arms isn't abridged because the citizen bought the gun, and press freedoms are not abridged because newspapers and cable outlets charge subscription fees.

-Ty
10.26.2006 5:13pm
WHOI Jacket:
I look forward to the high school guidence counselor sessions of the future:

"Jane, we've gotten your ASVAB test back and after talking with some of your teachers, it seems the the career option that suits you best may be a whore..."
10.26.2006 5:17pm
Mark F. (mail):
As a practical matter, I can pay for all the sex I want and the chances of me being charged with a crime are close to zero. So prostitution is de facto legal here in San Francisco.
10.26.2006 5:25pm
Hattio (mail):
Paul Allen and Ty,
The right to privacy is not an analogy in Alaska. As Eugene noted, it's a state right enshrined in the Alaska Constitution. Same is true for several other states as he noted. Thus, while the fact that it is analogy may undercut the expansion of my point to the federal sphere (I'm not sure it does), the fact that the right to bear arms requires commercial transaction does nothing to undercut the right to privacy, and therefore the analogy between marijuana use and prostitution in Alaska (and to any states which accept the logic and have a right to privacy).
10.26.2006 5:53pm
FantasiaWHT:
NotALeagalEagle, that's great! More on the effects of a slippery slope, thank you
10.26.2006 5:54pm
Marcus1 (mail) (www):
I think it's a little of each column.

I don't think the significant relationship factor is really what distinguishes prostitution, but I do think the right to have sex is more fundamental than the right to have sex in specific ways. Sure, you could prove that without prostitution you personally can't find anybody to have sex with, but that's only so much the law's fault. The more specific the restriction, the less fundamental the right (yes, this mixes analyses, but that's not my fault). In general, I think this is also why gay marriage is a more important right than polygamy: the right to marry one person is more fundamental than the right to marry many people.

As for the second, I think that yes, the justification for outlawing prostitution is objectively compelling. They're trying to prevent harm, and it makes basic sense. I could argue against it, sure, but considering everything, including the narrowness of the law, the fact that it doesn't really single out any group of people, the fact that the justification makes sense, I think it should probably only require something like intermediate scrutiny, and on that it should definitely make that grade.

As to the third, you can't say accross the board that there are no economic rights, but the right to do something for money is certainly less important than the right to do it at all. That's probably all I could really say about that.
10.26.2006 5:55pm
American Psikhushka (mail) (www):
This doesn't address the question posed, but it seems so unfortunate that justification for the right to sexual autonomy has focused on the "right to privacy". It seems like a more fundamental right than that. Scratch that - it is a more fundamental right than that. It has to be one of the most fundamental of property rights because it is connected to self-ownership. It's both a liberty interest and a property interest.

It just seems to trivialize the right when the focus is on the "right to privacy", although that is important. There have to be better arguments for defending it than those.
10.26.2006 6:04pm
A. Zarkov (mail):
I think prostitution should be legal, although I have a major reservation. It's going to drive the price way down …

That's already happened in some western European countries where prostitution is legal. Competition, especially from the Eastern European migrant prostitutes has driven the price so low that the native prostitutes are in a panic. In ancient Rome prostitutes were plentiful and cheap. The cost of a session was about the price of a light meal or a drink.

Now if the homosexuals in Lawrence had exchanged money, the whole case would have been different because the transaction was commercial instead of personal. Some people just don't like economic acts between consulting adults.
10.26.2006 6:10pm
Henri LeCompte (mail):
The prohibition of prostitution is based almost exclusively on a historical, "traditional" assessment of its morality. Adultery, pre-marital sex, gay sex, polygamy, gay marriage, adult incest, etc-- the prohibitions against these private arrangements between consenting individuals have been prohibited due to a historical sense that the State had a legitimate interest in shaping individual sexual/affectional behaviors. In other words, these have historically been seen as victimless violations of an abstract standard of "shared" or public morality.

In recent decades, there is no doubt that Western societies are moving in a direction where all of these taboos are being moved to a "private" sphere where individual choice is king.

Arguments A, B, and C above have an ad hoc quality; they seem like after the fact rationalizations for a pre-existing conclusion. People either think prostitution is "wrong," or they don't. Spreading diseases, or starting relationships is tangential to this prior, gut-level moral assessment.

I guess I'm saying that there always is a pre-existing, somewhat irrational, moral sense that informs and shapes legal thinking. If you think that prostitution is morally neutral, or even admirable, than you are much more likely to be convinced that Lawrence v. Texas protects it. Reason alone won't get you there if your heart isn't already persuaded.

Logic is very good for building bridges, but it has much more limited utility in solving moral dilemmas. Not useless, but not as helpful as some imagine. More often than not, someone's "rational" dissection of a moral problem leads them straight to their initial policy preference! Funny how that works, eh?
10.26.2006 6:17pm
David M. Nieporent (www):
To take Paul's comment a step further, I would note that some of the explicit rights that implicate the penumbral right to 'privacy' are inherently commercial in part. Any right to bear arms isn't abridged because the citizen bought the gun, and press freedoms are not abridged because newspapers and cable outlets charge subscription fees.
Or the ultimate penumbra: abortion. It's pretty much always a commercial transaction.
10.26.2006 6:18pm
Kovarsky (mail):
the justification for outlawing prostitution is objectively compelling. They're trying to prevent harm, and it makes basic sense.

Most anti prostitution laws predate recognition of the public health necessity. They're about paternalism and morality, not about public health.
10.26.2006 6:41pm
Caliban Darklock (www):
I think the primary argument today is that it tends not to be an expression of sexual autonomy, but an act of desperation. Most prostitutes did not grow up wanting to be prostitutes, and do not want to continue being prostitutes - they simply feel they have no other options.

I am also of the opinion that women in general don't like the idea of prostitution because it largely robs them of the carrot they use to manipulate and control men.
10.26.2006 6:54pm
Kovarsky (mail):
I am also of the opinion that women in general don't like the idea of prostitution because it largely robs them of the carrot they use to manipulate and control men.

uh, yeah.
10.26.2006 7:08pm
josh:
While I don't necessarily endorse this opinion, Katherine MacKinnon would distinguish the notion of privacy from prostitution in that prostitution can never be a private choice between consenting adults, but is instead a one-way subjugation of the prostitute (usually a woman). Her seminal example is her representation of Linda Lovelace, the porn star, who (she alleges) was kidnapped and hooked on drugs to make Deep Throat. She says all porn stars (and prostitutes) are coerced into their trade, regardless of whether the means are so severe.

Again, I don't necessarily agree, but I took her class in law school and found her arguments thought provoking. Ultimately, however, I think the arguments of modern feminists (even porn stars), about their choices actually removing them from subjugation, probably win the day.
10.26.2006 7:24pm
Salaryman (mail):
Wait a minute! I'm not an expert on these things, but I thought we men were the ones with the "carrots." At, least, I've always considered it my carrot. Or my stick. Or whatever.
10.26.2006 7:28pm
Kovarsky (mail):
I had the best joke about Katherine MacKinnon. I don't think it's appropriate for this forum, but suffice it to say that it starts, "So Katherine MacKinnon, Stephen Hawking, and Paris Hilton walk into a bar."

I think MacKinnon's arguments are thought provoking, exaggerated, and to a lesser degree, true. Not all women are held at gunpoint and forced to fellate someone on camera. But the economic elements of coercion are certainly present. I expressed this reservation above - the problem I have with it is that if you are to resort to this argument to combat an "autonomy" justification for legalized prostitution, you can use it to justify regulation of all other sorts of cosmetically "autonomous" behavior as well.
10.26.2006 7:42pm
CLS (www):
I disagree with the claim that an act of commerce is not private. Any transaction I engage in with another person is between me and them. It is not a public act at all even if performed in public. A man kissing his wife at the airport doesn't turn their kiss into a public affair. It is still a private act between spouses.

The problem here is that many on the Left and their fellow socialists on the Right (called conservatives) confuse a public act with an act engaged in public view. A public act is an act of rightful concern to the public, the collective. Who I kiss or who I give $2 to for something may be acts I perform in the view of others but it is not an act in which others then have an automatic right to interfer.

I also found the idea that govt. may ban prostitution to stop the spread of AIDS amusing. Does anyone think that the exchange of money spreads AIDS? I was under the impression it was the exchange of bodily fluids. This almost seems to be saying that if man and a woman have sex then the risk of AIDS is X but if when they are finished he hands her $50 the risk has jumped considerably. The risk is not from the exchange of cash per se but from the exchange of blidly fluids.

If the state is justified in regulating conduct private in order to stop the spread of disease we are on a interesting slope. Could it ban kissing to end the spread of the flu? Could it arrest people for having too much non-commercial sex? Could it penalize men for not wearing condoms?

If stopping AIDS is a justification for regulating sex then what about banning sex and giving licenses to married couples who are tested, and meet govt. requirements? I have little doubt we could sell that idea to the Republican base. I find this a very bad foundation on which to build an argument as the logical conclusions of it are rather scary.
10.26.2006 7:42pm
Dave Hardy (mail) (www):
Or (C) you might think that rights are generally limited only to noncommercial behavior. But, if that's so, do you likewise think that it would be constitutional for the government to bar payments of money to authors, publishers, criminal lawyers, private school teachers, abortion providers, contraceptive vendors, and the like?

Not to mention the negative judicial reaction to laws that required violent offenders to turn over book royalties, movie rights payments, etc. to their victims.

It might be interesting to trace the history of these laws. I suspect you'd find that they date no farther than the Victorian period. In 18th century England I think it was just regarded as one more occupation (once saw a webpage giving an enormous collection of 18th century terms for ladies of the evening -- slang for young ones, old ones, ones with a bad temper, ones that were poor housekeepers, etc., etc.. I believe Aquinas considered the practice quite justifiable, in that it tended to channel men's lust in only a few directions, and thus served God's purpose. Or at least was the lesser of all possible evils. And look up in an *old* Black's Law Dictionary the term "pimp tenture." It was an "old and odious" land tenure in exchange for, er, keeping a stable of ladies who would give R&R to the monarch as he toured his kingdom. Doubt it'd get you into the House of Lords today, but in the medieval period was enough to do the job.
10.26.2006 7:44pm
Kovarsky (mail):
The AIDS argument is amusing. Legalization of prostitution would allow testing, monitoring, and verification of AIDS-free prostitutes. Now it's completely unregulated. Solicitation is like a box of chocoloates, if you catch my drift.
10.26.2006 7:48pm
Henri LeCompte (mail):
Hey, I think we've reached a kind of perfectly circular argument:
On the one hand the patriarchy wants prostitution illegal because it fears sexually autonomous women, and wants to control them with "morality." On the other hand, the patriarchy wants prostitution legal because it likes subjugating women and wants to make that as widespread as possible.

Which only goes to show that "patriarchy" is one of those academic words that means everything... and nothing.
10.26.2006 7:51pm
Henri LeCompte (mail):
Oops, that should be "explains everything... and nothing."
10.26.2006 7:54pm
Ivan_123:
Someone posted a link to this story that made headlines in Europe last year.

Despite the fact tham many reputable newspapers eventually carried it, it was quickly debunked as a hoax.
10.26.2006 8:07pm
John Herbison (mail):
I have argued (unsuccessfully) that criminalizing prostitution unconstitutionally impinges upon fundamental rights to personal autonomy and privacy and violates liberty/substantive due process guaranties. State v. Friedman, 2005 Tenn. Crim. App. LEXIS 574 (June 8, 2005). The appellate court there quoted a 1913 U.S. Supreme Court decision opining that "There is unquestionably a control in the states over the morals of their citizens, and, it may be admitted, it extends to making prostitution a crime." The opinion declined to even mention Lawrence v. Texas, which would seem to preclude morality as furnishing the sole basis for upholding a statute which criminalizes sexual coupling: "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice". Lawrence, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508, 521 (2003), quoting dissenting opinion of Stevens, J., in Bowers v. Hardwick, 478 U.S. 186, 216, 106 S.Ct. 2841, 2857, 92 L.Ed.2d 140 (1986), overruled by Lawrence, supra, at 577, 123 S.Ct. at 2484.

Prostitution is to sex as advertising is to free speech. Common experience teaches that heterosexual prostitution most often involves male buyers and female sellers. Let us break such a transaction down into its component parts. No statute prohibits a man from giving a woman money. Under the reasoning of Lawrence v. Texas, supra, any statute which prohibits a willing adult woman, acting behind closed doors, from providing sexual pleasure or gratification to an equally willing adult man (or vice versa) would be patently unconstitutional. Where is the governmental interest in prohibiting the combination of these two component parts?
10.26.2006 8:14pm
logicnazi (mail) (www):
I don't think there is any grounds for exception at this point in time. If the state shows compelling disease problems or other serious harms extending to those not engaging in the act (not subtle indirect things about bad neighborhoods or something) that would probably be a good justification. But in this modern age of birth control and STD tests I don't think there is any valid way to distinguish the cases.

In fact I don't think you can distinguish Roe v. Wade from a right to use recreational drugs either.

Of course I'm willing to bite the bullet and say the constitution protects all of this but most people aren't.

Anyway thanks for posting this I think it makes an interesting question.
10.26.2006 8:28pm
Henri LeCompte (mail):
John:
Exactly. The law means what some judge says it means. Nothing more, nothing less.

Which is why some of us think that all of these "public morality" issues should be decided by the legislature. So that other reasonable adults (the ones that don't have long robes) get to have some say in how their society operates.

Of course, you'll get your head bitten off if you suggest that's the best method to decide questions about, say, abortion. Or gay marriage. Those are special.
10.26.2006 8:31pm
Kovarsky (mail):
John, I think I agree with your ultimate conclusion, but not with your heuristic. the "A is not illegal" and "B is not illegal" therefore "A &B together" are not illegal is a logical relationship belied by much of modern criminal law.
10.26.2006 8:38pm
logicnazi (mail) (www):
Ohh I should add that as a pragmatic matter I think it is reasonable to distinguish the two entirely on grounds of stare decisis. In other words viewing the sexual autonomy decisions as errors that nevertheless shouldn't be overturned.
10.26.2006 8:50pm
logicnazi (mail) (www):
Also I want to emphasis an important point people in this discussion seem to be missing.

While one might be able to say the commercial/non-commercial distinction only applies to privacy rights thus is irrelevant for 1st ammendment issues this doesn't get you around the abortion problem. Not only is it unconstitutional to ban abortion it is unconstitutional to ban payment for abortion.

The whole subjugation of woman argument/not really free choice proves far too much. It proves that being a janitor ought to be illegal because no one wants to be a janitor they are only forced into the practice in order to get money.

MacKinnon's claims are just downright nonsense. I mean arguing that all sex is rape doesn't even make sense. I don't mean it is just really wrong it really is incoherent. Our meaning of the word rape comes from an understanding of examples including the notion that normal couples having sex isn't rape.
10.26.2006 9:02pm
ReaderY:
I find it difficult to taje this type of discourse seriously, all of this seems to be just an intellectual affectation of the personal views of repressed Justices unable to acknowledge their own thoughts, feelings, and motivations.

Such constrained discourse is unhealthy for a society. One is reminded me of transcripts of Chinese Politboro meetings about Tiannamen square, in which political discussion of what to do had to be translated into a stilted, formal, doctrainaire language that made candid discussion impossible. As George Orwell pointed out, the impoverishment of discourse is common in a society where power is concentrated in elites and ordinary people lack any say in how society sh9uld be run.
10.26.2006 9:05pm
Attorney SF (mail):
Although I'm strongly persuaded by choice (A), my ultimate reason is (D) sex should be fun, but although gays and lesbians enjoy sex as much as -- and usually more than -- straight folk, no prostitutes I know enjoy having transactional sex with their johns. Indeed, becoming a prostitute radically transforms, and often destroys, a prostitute's ability to enjoy sex with anyone ever again. As a result, their initial "choice" to engage in prostitution erodes the sexual freedom that I think is somewhat critical to enjoying a healthy and free life.

In other words, I'm less concerned about sexual autonomy rights, and more concerned about the normative outcomes of sexual public policy. Fostering gay relationships enhances sexual autonomy. But so does banning prostitution.
10.26.2006 10:06pm
Paul Allen:

Thus, while the fact that it is analogy may undercut the expansion of my point to the federal sphere (I'm not sure it does)

Yes, I did have in mind incorporation via the 14th amendment. Still I brought it up precisely because your comment seemed to suggest that we should draw upon the Alaskan Constitution to determine how to animate the 14th amendment against state incursions of our rights. This impression is only made more certain by your later remarks.
10.26.2006 10:07pm
Dave L (mail) (www):
I have fairly libertarian principles which if I followed to their ultimate conclusion I would have to say prostitution should be legal, but if I was a governor or legislator in real life I'd have a hard time voting for it, In fact I don't think I could.

In a related vein what's the legal difference between prostitution and pornography in which a person is being paid to have sex?
10.26.2006 10:13pm
Kovarsky (mail):

readerY,

what is your point? that this blog wastes time?
10.26.2006 10:13pm
Paul Allen:

Or the ultimate penumbra: abortion. It's pretty much always a commercial transaction.

Quite so.
10.26.2006 10:15pm
A. Zarkov (mail):
MacKinnon's claims are just downright nonsense.

The physicist Pauli would sometimes label theories as:

1. Wrong.
2. Completely wrong.
3. Not even wrong.

McKinnon's ideas come under (3).
10.26.2006 10:15pm
Quarterican (mail):
I (and many other feminists) disagree with a number of MacKinnon's ideas, but she never said that all sex is rape.
10.26.2006 10:30pm
Kovarsky (mail):
Mackinnon makes some nutso claims, most involving the ontology of pornography, but she never said that all sex was rape. She's guilty of a lot of things, and has alienated a lot of her colleagues, and her more recent writing has the unfotunate style of the analytic philosphers she emulates. But she's not where she is for no reason. She was (and probably remains) a brilliant litigator and is probably more responsible than any other person for the sexual harassment protections women in the workplace enjoy today.
10.26.2006 11:18pm
Toby:

I think the primary argument today is that it tends not to be an expression of sexual autonomy, but an act of desperation. Most prostitutes did not grow up wanting to be prostitutes, and do not want to continue being prostitutes - they simply feel they have no other options.

Sounds like fast-Food workers
Sounds like housekeepers
Sounds like Cicil Servants

Attorny SF:
Many kitchen workers find their relationship to food to be radically changed by the expereince (and many don't). SHould we generalize?

Kovarsky:
An attempt to find your joke produced a pretty amazing Google page, the one that lists pages that have all three of thos individuals at the same time...
10.26.2006 11:39pm
Cyn23 (mail):
(A) doesn't seem credible. It would criminalize any number of intimate relationships with very little emotional attachment. Likewise, in some cases, prostitution would set up such a relationship. In fact, for some people, it might be the only way available in some cases (one considers military bases, those with disabilities, certain fetishes, etc.). Anyway, at the very least, there is a serious line drawing problem. How "emotional" does it have to be? One night stands might have a good future ...

(B) is reasonable but in practice licensed prostitution very well might be most reasonable. Quite arguably to promote constitutional ends such as more sexual equality, protection of the gov't from attack, etc.

(C) The other examples of paid services are distinguishable in many cases. For instance, food sale is not particularly a dangerous way to obtain it. And, if the good is not provided for free (abortions etc.) surely an absolute barrier of sorts is raised. Sex however can be obtained w/o prostitution in numerous ways.

But, most definitely, "paid" is not a credible clear line by itself.
10.27.2006 12:36am
Ivan_123:
logicnazi:
Not only is it unconstitutional to ban abortion it is unconstitutional to ban payment for abortion.

Question from a curious non-lawyer: what would happen if a state legislature attempted a de facto ban on for-profit abortions by imposing an exorbitant tax (say 99.9%)? On what exact grounds would it (presumably) be struck down?
10.27.2006 1:06am
Fub:
Kovarsky wrote:
Mackinnon makes some nutso claims, most involving the ontology of pornography, but she never said that all sex was rape.
Yes, and apparently neither did her sometime coauthor, the late Andrea Dworkin. Apparently popular belief is that Dworkin made the statement in her book intercourse. What she wrote was "Violation is a synonym for intercourse".

No doubt there is a major distinction in meaning between that and "All sex is rape", but greater minds than mine will have to elucidate it.
10.27.2006 1:36am
John Herbison (mail):
Ivan, that would likely be struck down as imposing an "undue burden" on the right to abortion. After all, the power to tax is the power to destroy, as John Marshall famously observed.
10.27.2006 1:42am
harbinger:
(A) makes no sense under Eisenstadt, Lawrence, and other privacy cases that refused to make a distinction between more and less committed relationships. Such a distinction violates the Equal Protection Clause under Eisenstadt. Furthermore, it's entirely possible to have a monogamous but commercial relationship. Why can a state ban a five year prostitution contract with an option for renewal? Sounds like a good test case actually.

(B) makes no sense because sodomy has long been a primary risk factor for the most deadly STD, HIV/AIDS. Lawrence implies that such rationales do not pass the rational basis test when narrower regulations can suffice. So that, for example San Francisco can presumably still regulate bath houses, and the law might require prostitutes to use condoms, but blanket bans on sodomy or prostitution respectively are unconstitutional.

(C) also makes no sense. A commercial nexus cannot provide a rationale for banning prostitution because under the birth control and abortion cases, commercial transactions and contracts for goods and services pertaining to intimate conduct are covered by the same right of privacy as the sexual behavior itself.

There is in fact no good argument for the constitutionality of a prostitution ban that is consistent with the Court's privacy jurisprudence.
10.27.2006 2:25am
Public_Defender (mail):
If I thought that all prostitutes were non-coerced adults, I might argue that it should be legal to patronize them. But from what I understand, many, many prostitutes are kept in prostitution by threats and abuse. And I don't think the government is capable of distinguishing between protitutes who have been improperly coerced into prostitution and those who have not.

Given the abuse rampant in prostitution, as a legislative matter, I think it should be legal to offer one's own services as a prostitute, but illegal to be a John, pimp or madam. That would allow a crackdown on prostitution, but it would avoid prosecution of the pitiful.
10.27.2006 4:48am
Chumund:
I suppose I reject the premise that cases like Lawrence establish a constitutional "right to sexual autonomy" (at least not in the same sense that we might say there is a constitutional right to free speech). In fact, I might suggest that this gloss on Lawrence is shading back to a Bowers-type framing of the issue in Lawrence, which of course was explicitly rejected by the Court:

"To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."

Quoting Casey, the opinion goes on to recognize that for homosexual people, engaging in homosexual conduct and relationships is connected to the even more fundamental issue of what the Court calls "personhood":

"'These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.' [Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992)].

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right."

So, it is not the bare assertion of a right to sexual autonomy, but rather the need for such autonomy in order to "define the attributes of personhood", that mattered in Lawrence.

Finally, implicitly addressing prostitution, the Court concludes:

"The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle."

So, I think the basic problem with the setup of this question is that it loses sight of the fact that in Lawrence, it mattered that the sexual conduct in question was integral to homosexual people's very identity. Transforming this back into a bare "right to sexual autonomy" strips out that crucial context and eliminates the purposes to which that autonomy was being turned in Lawrence.

So, I would say that under Lawrence, the reason prostitution is not constitutionally-protected is that in the Court's view, such conduct apparently cannot be fairly connected to the same fundamental "personhood" issues as homosexual conduct. Which probably makes perfect sense--I would also be inclined to say that "prostitute" and "john" typically are not the same sort of thing as "gay person".
10.27.2006 5:31am
Shawn-non-anonymous:
I would hesitate to draw parallels between the situations that lead people into illegal prostitution versus those that would lead them into legal prostitution.

For example, a woman who is a legal prostitute in one of Nevada's brothels will not get there via drug addiction because that would prevent her from acquiring the necessary Sheriff's card--as would many other factors including ties to organized crimem or her own criminal record.

Brothels need to pay better than other jobs that require the same qualifications in order to attract quality employees. This will drive the price of a hooker up, not down. Nevada's legal hookers make very good money.

Of course, the high prices of quality prostitutes (and the fact that prostitution is illegal in counties with greater than 300K population--Reno and Vegas) creates a black market for cheap prostitutes who are unable to qualify for a Sheriff's card or get a job at a legal brothel.
10.27.2006 9:30am
JBL:

Under the existing framework, I think (A), (B), and (C) are all possibilities. Lawrence does allow the possibility that prostitution is distinguishable from sodomy. Basic safety and freedom from coercion are legitimate concerns of government. And commercial activity and private activity are potentially distinguishable. But the exact distinctions in all of these arguments end up pointing to the parenthetical comment in (B).

There are a HUGE number of government regulations that have questionable relation to their stated goals. It is not at all clear that banning prostitution eliminates the practice or decreases the associated violence, and in fact the evidence suggests that the reverse is true. The same could be argued for marijuana (though not many harder drugs). Increasing the minimum wage is at best an inefficient way to help the working poor, and in the long run may do more harm than good. The impact of the mortgage interest deduction on home ownership rates is probably zero. Most of the fine print banks are required to give their customers does little, if anything, to create a more informed consumer.

It is not legal to pay a woman cash for sex, but it is legal to buy her dinner and a theater ticket, or to videotape the session and pay her as an actress. In my opinion this is extremely silly, but requiring the government to make sense would have huge implications. I think it would be great, but it's not a narrow question.
10.27.2006 1:25pm
Attorney SF (mail):
Toby-

You ask, "Many kitchen workers find their relationship to food to be radically changed by the expereince (and many don't). SHould we generalize?"

Seriously? Do you think "kitchen workers" have the same relationship with food that prostitutes do with sex, i.e., they feel an intense self-loathing and desperation every time they eat lunch?
10.27.2006 1:28pm
lucia (mail) (www):

A. Zarkov: > In ancient Rome prostitutes were plentiful and cheap. The cost of a session was about the price of a light meal or a drink.


Out of curiosity, what's the going rate, now, in the US? Also, is the going rate affected by welfare payments?
10.27.2006 2:09pm
abb3w:
While IAmNotALawyer, I'd fall more-or-less in a "B" category, myself.

I'd say that sexual conduct is an issue of an unenumerated right as indicated by the ninth amendment. Prostitution, however, is also arguably regulatable as both a Commerce issue, and under a public Health and Safety issue. More general sexual conduct might also be regulatable that way, but not as easily.

Comerce is trivial, especially after Gonzales v. Raich. Public health is also relatively simple; sex workers are far more likely to act as vectors for sexually transmitted diseases than the average person. The product and places where they work should be regulated, just as food service preparation is.

In the era when rights only existed as common-law, medical techniques were sufficiently primitive that only outright prohibition of practices most likely to spread such diseases; prostitution most obviously, but also arguably anal sex. With improved medical practice, absolute prohibition is no longer the only tactic available. Its an instance where technological advancement has shifted where the balance between the rights of individuals and and the rights of the state ought to lie.

In an unrelated matter, I'd argue the progress in weapons technology may also have affected the balance of the underlying right to bear arms versus the interest of the safety of the public (as opposed the the safety of the government against its public, which should be moot). WMDs make "right to bear arms" limits more reasonable as an entry wedge, although the question of where to draw the line (assault weapons? handguns? nanometer-edged samuri swords?) needs to be considered carefully. It leads me to wonder if there are other cases where technological progress has clearly changed a balance of rights, and been recognized by the courts.

As a more related aside, the taxation of illegal drugs in many states points out that prostitution need not be legalized to be regulated. Requiring prostitutes to be tested every 30 days (such as most of the porn industry self-requires) would be sensible and reasonable regulation. A law could easily be passed making prostitution without such testing a far more serious charge than prostitution alone.

I'd also suggest that someone who knows they have a sexually transmitted disease, and has sex without warning the prospective partner of the condition should be prosecutable as rape (since informed consent was not obtained).

However, besides disease per se, there's another issue with female prostituion: the risk of pregnancy. Could the state require contraception be used? Could it require which forms? It also ties into the nasty snarls of Abortion policy. If one holds (as I do) that abortion should be legal (since while evil, it is often the least evil possible), but that social policy should try to minimize its evils (such as by increasing contraception information and availability, facilitating adoption, or at the least making it as early in term as possible -- preferably before implantation), what are the implications of a profession where unwanted pregnancy is an inherent risk of the job?

This in turn may tie into social family policy: should the government be encouraging children to insure stability of the welfare program? Should earnings from prostitution be taxed at a higher rate? Is single motherhood a sufficient social problem that a female prostitute should be required to associate with a "pimp" or "madam", who assumes legal responsibility for making sure any children are raised and educated?

And, of course, there's the questions of morality that all the religious right will raise — screaming. The social cost of figuring out a better solution to this snarl than simple prohibition may be higher than any potential gains.


Disclaimer: I'm a lonely bachelor with a fondness for porn, which may color my position on the matter. =)
10.27.2006 3:18pm
Holly:
I find organ donation to be the most useful analogy to prostitution. It's illegal to do for money but fine for free, and it consists of selling your body. Whatever legal justifications are used for keeping me from selling my kidney can probably be used for keeping me from hooking. Interestingly, the nexus of the two matters, selling my eggs, is legal. Frankly, from what I've heard about the egg donation process, I might rather sell a kidney.
10.27.2006 6:57pm
A. Zarkov (mail):
"Out of curiosity, what's the going rate, now, in the US? Also, is the going rate affected by welfare payments…"

Well I don't really know, I got that information from a History Channel program on life in ancient Rome. Then of course like everything else there are different grades of service. But again I don't have the price schedules. One way to find out would be to look up the price of escort services and then apply some kind of inflation factor for "enhanced services." I doubt if welfare payments has any effect at all on prices except at the extreme low end. And who wants that?
10.28.2006 1:36am
markm (mail):
"If I thought that all prostitutes were non-coerced adults, I might argue that it should be legal to patronize them. But from what I understand, many, many prostitutes are kept in prostitution by threats and abuse."

So, why don't they turn in their abusers? It's the laws against prostitution that make it practical for pimps to threaten and beat up their "employees". I can think of only one other case in the USA where businesses can function by coercion of employees, and that's small businesses that virtually enslave illegal immigrants. In both cases, the employees cannot go to the police because they are themselves in violation of the law. Bring prostitution out of the shadows, make it practical for prostitutes to report pimps who assault them, and regulate it for the public health, and you have the situation in Nevada's smaller counties. I haven't been there myself, but I don't hear of the kind of problems that are rampant under prohibitionist laws.
10.28.2006 3:28pm
lucia (mail) (www):
Zarchov> I doubt if welfare payments has any effect at all on prices except at the extreme low end. And who wants that?

Well....if the low end commodity exists and is purchased, one must conclude someone wants it enough to pay for it.

I have to admit that I'm not interested enough in the rate to call escort services and try to figure out what the rate might be!

As to your suggestion that I look up the price of escort services, I'm not quite sure how I'd do that!
10.29.2006 11:33am