Lack of Evidence

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 12^th 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 21^st), 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.