To the moralist prostitution does not consist so much in the fact that the woman sells her body, but rather that she sells it out of wedlock. – Emma Goldman
I’m often asked where I get the inspiration for a column every single day, and I must admit that it isn’t always easy; sometimes I struggle with it for a long time before I can think of anything (and I’m afraid that shows sometime). But other times, it just drops into my lap; this is one of those times. On Monday, Amanda Brooks published a new column, and in a comment to it I wrote: “That’s the main reason I tend to harp so much on the fact that prostitution is a continuum stretching from party girl to porn star and from wife to streetwalker, with the vast majority of non-celibate heterosexual women falling somewhere in there and not necessarily remaining in one place within it forever. It’s why I tend to use words like ‘whore’, ‘prostitute’, ‘harlot’, ‘hooker’, ‘escort’ and ‘sex worker’ interchangeably, and it’s also why the legal basis upon which prostitution law rests is so highly dubious.” With that rolling around in my head I then took a look at Brandy Devereaux’s site and today’s column was born once I read her commentary on this story:
Myrtle Beach police arrested a 48-year-old woman on a prostitution charge after officers working undercover said she agreed to perform a sexual act for $100, according to a police report. Diana Ceham Ahmad, 48, was charged with second-offense prostitution during an undercover police investigation about 5:45 p.m. Saturday in the area of Ninth Avenue North and Kings Highway, police said. An officer, who was driving an undercover vehicle, saw Ahmad walking in the area of 12th Avenue South and Yaupon Drive and when he stopped she got inside the vehicle, according to the report. The officer wrote in his report that she told him she could use $100 and she “could borrow $100” from him while she winked her left eye.
So in Myrtle Beach (and no doubt many other places here in the Land of the Free), winking is evidence of prostitution. In Detroit, not wearing a bra and/or panties serves a similar function, and in many places it’s having more than one condom in one’s purse. And for a woman to appear alone on a street has been used as evidence since the beginning of prohibition over a century ago. Cops are not allowed such ridiculous excuses for “evidence” for any other “crime”, so why are they allowed it for prostitution? It’s because it is the only human activity which is legal to perform for free but not for directly-negotiated pay, so physical evidence is impossible. There is no body, no stolen goods, no bruises; even DNA evidence recovered from a hooker’s skin could only suggest sex had occurred, not prostitution.
Prostitution is to my knowledge the only “crime” which is entirely defined by its motive; in all other cases I can think of motive only influences the degree of the crime (and its sentencing) rather than defining it. Motive can sometimes provide an excuse for an otherwise-unlawful behavior (e.g., self-defense can excuse homicide), but in the case of sex all other motives but direct payment are considered legal. I say “direct payment” because as I have pointed out many times before (most recently on November 21st), indirect payment is not illegal, and whores who obtain marriage licenses can even use the court system to collect their fees! In order to prove a charge of prostitution the court must have evidence that sex was openly offered for money, yet escorts never do that (and as the “wink” story shows, some streetwalkers don’t either). In order to get around this obstacle cops simply lie, but because some judges might frown on evidence-less perjury outside of a “sting” setting, it becomes necessary to admit absurdities such as winks, condoms and bralessness as “evidence”.
But just as a lot of sex for money isn’t defined as prostitution, so a lot of things defined as prostitution aren’t sex for money. As I pointed out in yesterday’s column a client paying for a two-girl show is no different from the rationale behind porn being legal, yet girls have been “stung” and arrested by cops arranging such shows. Some guys don’t want sex at all, and many of the women arrested by NOPD using the “do you have a condom?” scam weren’t even sex workers of any kind. One would think such abuses would arouse the ire of feminists everywhere, but nope; they’re much too busy fighting consensual sexual activities like prostitution, BDSM or porn to bother with police arresting random women on the street or lifting up their skirts to see if they’re wearing underwear.
The only methods which can be used to prosecute prostitution – stings, police perjury and ridiculous “evidence” rules, together with the fact that prostitution laws almost universally target women for persecution – create a civil rights nightmare, so as you might expect the American Civil Liberties Union is firmly opposed to them. Here’s the official ACLU position:
The ACLU supports the decriminalization of prostitution and opposes state regulation of prostitution. The ACLU also condemns the abuse of vagrancy or loitering laws or licensing or regulatory schemes to harass and arrest those who may be engaged in solicitation for prostitution. While there are both male and female prostitutes, laws against prostitution most frequently refer to, or are applied to women. Despite the statutory stress on female prostitution, the ACLU’s policy is applicable to prostitutes of both sexes….
Such laws have traditionally represented one of the most direct forms of discrimination against women. The woman who engages in prostitution is punished criminally and stigmatized socially while her male customer, either by the explicit design of the statute or through a pattern of discriminatory enforcement is left unscathed.
Prostitution laws are also a violation of the right of individual privacy because they impose penal sanctions for the private sexual conduct of consenting adults. Whether a person chooses to engage in sexual activity for purposes of recreation, or in exchange for something of value, is a matter of individual choice, not for governmental interference. Police use of entrapment techniques to enforce laws against this essentially private activity is reprehensible. Similarly, the use of loitering and vagrancy laws to punish prostitutes for their status or to make arrests on the basis of reputation and appearance, is contrary to civilized notions of due process of law.
Since the ACLU policy is that prostitution should not be made criminal, solicitation for prostitution is entitled to the protection of the First Amendment.
The ACLU reaffirms its policy favoring removal of criminal penalties for prostitution and in support of total sexual freedom among consenting adults in private.
Given this stand, I do have to wonder why the ACLU hasn’t volunteered its services for a test case; I’m sure it wouldn’t be difficult to find an educated, well-spoken escort caught in a “sting” who would be willing to be the “poster child” for such a case. I found this statement at Procon.org, a site which places arguments for and against various issues in adjacent columns. As one might expect, the “pro” opinions on this subject are generally based in privacy and civil rights, while the “con” arguments rely on bogus statistics, neofeminist “degradation” rhetoric and conflation of voluntary adult prostitution with “trafficking” and underage girls.
I’ve been following your blog for a short time, and have learnt a lot from it. As a trained but non-practising lawyer in Hong Kong, your blog should be a must-read for any law student – and not a few practising lawyers anywhere in the world.
I’m making no representations here. I’m neither for nor against prostitution – it’s just a fact of life. When I was receiving legal training at uni, we have to come into contact with male and female sex workers – and they are actually some of the nicest people around. Not a few of us changed our minds about this line of work.
The Myrtle Beach incident is arguably an entrapment situation (if we go by standardised, mainstream textbook legal logic). It doesn’t matter anyway, since the authorities/powers-that-be can bloody well do whatever they like, which is often quite out of order anyway.
Frankly, I personally can’t see the logic behind winking or having a condom in the purse or not wearing lingerie could constitute prostitution. It’s like, if I extend my military service into civilian life, do I regard policemen as armed civilians and potential enemies? Maybe I’m naive, but I personally object to this kind of treatment of prostitutes. They have a job to do (not an enviable one, I have to say), but let’s not make their life harder than it is.
You are absolutely right about prostitution being a crime defined by motive (or “constructive intention” in English law) because the intention/motive is entirely constructed under the “reasonable man” principle. It is reason for a reasonable man to assume that winking/condom possession/lingerie-less signifies intent. Problem is, a reasonable man do not make groundless assumptions of behaviour that is prevalent to a wide section of society. You know, it is reasonable to assume provocation, but a reasonable man cannot be provoked. You see what I’m getting at?
Cheers from Hong Kong, Robert.
Robert, thanks for reading and for your reply! I hope you comment often; since I myself am not a lawyer, it’s good to know that some people with legal education are looking in to keep me honest and correct any mistakes I might make.
I keep telling this to girls who believe in what I call “magic formulae”, i.e. the notion that there are some things police cannot do in a sting or must answer truthfully if asked. As I’ve said before, there are no such rules in most jurisdictions, and even when there are the police simply lie and claim to have acted correctly even if they didn’t.
Unfortunately, the police are not known for being reasonable. 🙁
“do I regard policemen as armed civilians and potential enemies?”
The answer to this question, regardless of military service, is “Yes.”
Policemen are civilians, regardless of their habit of contemptuously referring to the rest of us that way, and they are certainly the potential enemy of any citizen at any time. Since most of us are committing or have committed some crime in some way simply by walking down the street, we’re fair game to any cop who decides to liven up his day.
This is a truly regrettable state of affairs – but it’s becoming more common.
I appreciate you liking my comment. Of course, I’ve only been trained in the common law of England and Wales and Hong Kong, but it’s roughly 85% the same as American common law (except Louisiana, which uses civil law, a whole different kettle of fish).
Like all law programmes worldwide, we took Criminal Law in Year 1 at uni. One of the things we learnt is that the police as a matter of operational necessity will seek a conviction and this necessity overrides all other concerns. This was confirmed by our police classmates. (American law schools often don’t have police officers enrolled in law courses at uni, so most American law graduates, and their clients, have to learn life the hard way.)
Legally speaking, the police collectively (and by extension, individual police officers) are operationally and legally ‘unable’ to lie as a matter of public policy. This should give cold comfort to those who are looking for magic formula of any kind. Reality check – police officers are human beings who happen to be police officers, not the other way round, so they’re not actually immune to lying. The euphemism in all police forces is that sometimes “it is necessary for attending officers to be economical with the situational details in compliance with established operational guidelines and directives.” That really says it all.
Please, please, please, warn those still in the business to bear this in mind when they’re dealing with the authorities.
I recall my maternal grandpa telling me this when I was young: An unreasonable man always defends his position on grounds of reason. A reasonable, sensible person gives the reasons without needing to defend his position.
Like every other unnecessary attempt by the government to gain power over people’s lives, antiprostitution laws started under the clarion call of public safety. It’s amazing how well they’ve worked at shutting down streetwalkers and escort services too, I tell you.
They’re still arguing them from a public safety standpoint, too! Only now, in an amazing display of doublethink, they’ve added prostitutes to the list of people anti-prostitution laws supposedly protect! 🙁
It’s about a decade old, but I am reminded of this flash cartoon: http://www.newgrounds.com/portal/view/33440
“Please go stand by the stairs, so I can protect you.”
I have to add in my twopence worth here, and allow me some legroom for my mild anti-American stance.
The confusion, misinformation and disinformation about the public safety standpoint is that 99% of Americans (and that includes American lawyers) don’t realise that the words “public safety” is used in the legal sense of “ordre public” – which in normal English is “public policy doctrine.” It has little to do with actual public safety, i.e. preventative measures to protect the health and safety of the general public.
Americans don’t always realise this because Americans generally don’t grow up speaking French or German or two or three languages as part of their everyday life. If Americans did, the situation with American prostitution would probably be comparable to the European situation. Europe ain’t thrilling, but it’s nowhere near as horrific as in the good ole’ USA.
If “public safety” means public MEDICAL safety, any debate could just stop and everyone would nod their heads in abject approval. As it is, “public safety” in reality is not about medical safety: exactly what has never been clearly or responsibly fleshed out, even in law schools. The academics are too lazy to explain, and the powers-that-be are happy to obfuscate and repudiate, “refudiate” or re-whatever-diate.
In a predominately ethnic Chinese society like Hong Kong where I now live, sex workers are discriminated against like mad you couldn’t even imagine. In Chinese society, prostitutes are less than rat manure. So, I for one can’t get my head around how arresting prostitutes is going to protect them.
Doublethink is not strong enough word to describe what is happening all over the world. Triplethinkcrimewisepartygood is a better description.
To use blunt language, how are the cops to know that the pantiless, braless, condom-carrying woman they’re arresting is a scofflaw hooker instead of a perfectly legal slut? I mean, unless she flat-out offers sex for money, or they offer it and she says sure, how are they to know?
Oh I forgot: the anti-prostitution laws are a way to get around the legality of slutdom.
In the early part of the 20th century, demonstrations by suffragettes and other early feminists were sometimes broken up by arresting the women on the pretense that a woman walking the street without a man might be a streetwalker. 🙁
They don’t know for sure, but that’s unimportant. Like I said before, the police are obligated to seek out and pursue a conviction as a matter of operational and public-policy necessity. In other words, the job of the police is to:
(a) make an arrest for the purposes of conviction,
(b) collect and present necessary evidence for the use of the prosecution service for the purposes of conviction; and
(c) do all and any matters necessary that do not detract from ensuring an assured conviction.
That all sounds nice and sensible, until you realise on closer examination of the language that ensuring convictions is the ultimate raison d’etre of the police, regardless of whoredom or slutdom – or anything else.
To cut a long story short, the person can be a whore or a slut – it doesn’t matter. As a human being, the arresting officer knows full well the difference between the two. As a police officer, it isn’t his operational purview to make any distinction – the only distinction is arrestable vs. non-arrestable, indictable vs. unindictable, and convictable vs. unconvictable. Law students get this rude wakeup call in Year 1 at uni. What happens in the movies, stays in the movies.
Most English-speaking people are in fact not particularly in tune with the nuances of the English language, so they can be forgiven for not realising the ultimate role of the policing authorities.
Until people realise the legal language that delegates the power/authority to the police, they will never realise the police in fact sits in a grey area of unaccounted and unaccountable authority.
The same indifference to truth underlies the job of prosecuting attorneys; their job is to seek conviction by any and all means, including the omission (and sometimes deliberate suppression) of evidence even if they personally believe the accused to be innocent of the charges. Prosecutors thus routinely “railroad” people whom they know or strongly believe to be innocent into prison; the fact that they can still sleep at night demonstrates their shocking amorality. 🙁
I want to start by saying that I recently discovered this blog while procrastinating my studies for the Bar Exam. (and three hours later.. yeah, great blog!). I attended a State Law school (HOOSIERS) and had several police officers in my class, as well as guest lectures from police officers in criminal law and crim pro. Everything said about the police is completely accurate. They are encouraged to lie if it can get a suspect to produce evidence against himself..
However, the statement about District Attorneys is somewhat inaccurate. Yes, there job is to seek conviction, and they do care about their “stats” or conviction rate. This often leads to them dropping cases because they feel they aren’t strong enough, or accepting a lesser plea, in fear of losing at trial. A prosecutor has an ethical obligation to turn over any evidence that may strengthen an accused person’s case, even if the person or his attorney is unaware of it. It is a generalization to say they normally knowingly omit evidence and even more so to say they “destroy” evidence, which would almost absolutely result in dis-barrment when/if found out. (duke lacrosse DA). Furthermore, each party is entitled by law to discovery and production of all relevant evidence. Any run of the mill defense lawyer would request all documents, evidence, witnesses, any evidence that they have or plan on using. Police departments and DA offices have to comply with strict documentation and procedural requirements in order for police testimony to be allowed in to evidence. A defense attorney, through the discovery process be able to notice if a piece of evidence was “missing.” Believe me, many of them have agendas and personal motive in trying cases, but to suggest that they do not comply with rules of professional responsibility and suggest that they could get away with destroying/hiding evidence is an overstatement. (I worked as a certified legal intern for the prosecutor’s office for two years, so I do have some practical basis as well).
I think criminalizing sex acts is unconstitutional (fundamental right to privacy) and setting up state funded task-forces is a terrible waste of tax-payer dollars to boot. Just thought I would add my two cents on the idea that prosecutor’s can omit evidence and actually get away with it. I’m sure it has happened, but by no means is it common practice.
Yeah, that sounds about what we were taught to do in Criminal Litigation Practice I and II in Years 1 and 2 at uni. Shocking to be taught that, isn’t it?
The euphemism is “directed evidence.”
Not only do prosecutors routinely work to convict people even they think are innocent, but they also routinely refuse to prosecute those they believe to be guilty, if they aren’t sure they can win. Better not to try at all than to have a loss on your record when you run for higher office.
“The police are the public and the public are the police; the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”
– Sir Robert Peel
That is the job of the police. To protect and to serve. As it should be for any human being to look after their fellow man.
That’s certainly correct in theory, but in practice cops forget they’re members of the public and assume authority they should not actually have. This mindset is reflected in the tendency of cops to refer to non-cops as “civilians”, even though they themselves are also civilians!
The reality is that cops sit in the grey area between civilians and non-civilians (i.e. military, etc), and all of the major common law jurisdictions around the world have never tried to clarify the status. Frankly, as a trained lawyer, it could never be clarifiable because that interferes with the basic operational ability of the police.
From memory, my law professor explained that the word “public” used in those two instances in fact carry two different meanings. “The police ARE the PUBLIC” carries the notion that policemen jointly and severally are members of the public – meaning they are not civilians. However, in “the public are the police,” the word is used in the normal sense (i.e. civilians) – meaning that civilians like you and me could conceivably (though improbably) requisitioned to carry out police duties (e.g. snitching).
Not to put too fine a point on things, you really have to be trained in law to figure what this a-hole of a British prime minister was saying.
To give a different perspective, in Hong Kong the police force has the status of “disciplined services,” which at least puts our police force on a relatively more clear-cut footing that they are legally not civilians. Not thrilling, but at least better than nothing.
Except that most people are pretty much clueless about Sir Robert Peel, his personality and his fondness for sanitised, ameliorative language, unless you also went to an English boarding school in the 1960s or 1970s.
I know where those words came from. In absolute terms, those words are unquestionable and the ideas behind them are just and true. In relative terms, though, it hides a multitude of sins, and it’s often very hard for the most of us to discern unless we are trained in teasing out the intent from mere words.
True, that is the job of the police. But there’s also a fine line between the job and “the job” (i.e. ultimate role in the general scheme of things devised by the powers-that-be). If I seem like a conspiracy theorist, I’m nothing like that. It’s just a simple matter of examination and deconstruction by mainstream legal methodology – without even any need for conspiracy theorisations.
Lest we forget, Queen Victoria hated Sir Robert Peel because of his “unyielding, hardened and ambitious character.” For a queen to say that, having been locked up prison-like in her palace and abused by all manners of cattle of the royal household, I’d think Queen Victoria was pretty good at judging characters.
But Sir Robert did turn out some great words to keep many, many people happy in a state of blissful ignorance.
Great way to get my reaction, by the way.
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