Does the right to privacy include the right to have consensual sex — for money? A federal court is going to get to decide

48hillssexwork
Credit: POWER of Canada

By Tim Redmond

MARCH 4, 2015 – A group representing erotic service providers is filing suit this morning in federal court in San Francisco, charging that the California laws against prostitution are unconstitutional.

The case relies on a series of recent Supreme Court decisions recognizing the right of people to engage in private sexual conduct and seeks to extend those rights to people who do what everyone agrees is legal except for one element: The exchange of money.

If the case is successful – and it may take years to work through the courts – it would lead to a profound change in how this country deals with sex work, potentially removing consensual paid sex from the criminal statutes and saving tens of millions of dollars that’s now spent arresting, prosecuting, and imprisoning people in the sex industry.

It’s not a crazy, long-shot suit: The lead attorney on the case is H. Louis Sirkin, who achieved national fame for defending the Contemporary Arts Center in Cincinnati against obscenity charges for displaying the works of Robert Mapplethorpe.

The plaintiffs are the Erotic Service Providers Union, several people who would like to seek employment as sex workers if it were legal, and one man with a disability who wants to hire sex workers but is prevented from doing so by law.

The defendants are the district attorneys of San Francisco, Marin, Alameda, and Sonoma Counties and Attorney General Kamala Harris.

“American courts continue to recognize that private, consensual sexual activity is a fundamental liberty interest protected by the Fourteenth Amendment,” the complaint states. “Yet when the private, consensual activity occurs as part of a voluntary commercial exchange between adults, the State prohibits the activity and deprives those adults of their Constitutional rights.”

It notes:

“The commercial exchange of private sexual activity between consenting adults hurts no one … As such, there is no compelling or legitimate governmental interest in its criminalization.”

The case has been in the works for some time. I first met Sirkin two years ago, when he was out here to meet with local counsel D. Gill Sperlein and some of the possible plaintiffs.

At the time, he told me that he thinks the argument has a good change in the federal court system. In Lawrence V. Texas, the US Supreme Court essentially ruled that what happens in a bedroom between consenting adults is none of anyone’s business.

How much of a leap is it to argue that the exchange of money, or something else of value, falls under the same Constitutional protection?

On the surface, that may sound like a stretch. But like the War on Drugs, a growing number of experts think the War on (Commercial) Sex is a failure. And as the lawsuit points out, for much of the history of this country, prostitution was generally legal.

“For much of our nation’s history,” it states, “the commercial exchange of private sexual activity … was not illegal, was widely accepted, and was, in fact, integral to our development.”

California didn’t outlaw prostitution until 1961.

The suit also raises a First Amendment claim: The laws against sex work include provisions that criminalize the solicitation of, or consent to, commercial sex, even if nothing further happens. The state law, then, “makes pure speech a criminal activity,” the complaint notes.

Is there a federal judge who has the courage to say that the laws against commercial sex are illogical and pretty foolish? I don’t know. But the courts have moved social issues forward when politicians wouldn’t –and the argument, on its face, has a tremendous amount of merit.

I wonder which judge will get the assignment. It will be a great trial.

The suit is funded in part by this campaign, which you can join.

  • Actually, only half joking, I’m surprised that it hasn’t been uberized, i.e. services rendered are not ‘paid for’, but rather the john ‘kicks in’ for supplies used and the room reservation. The would be app zaps the accounts of stingy Johns and guarantees a minimum fee to the professional service provider.

    • Guest

      It totally happens now. The standard hooker line is “payment is for my time and companionship – anything else we do is between consenting adults”.

      Yeah, right

  • Runforthehills

    Well alright! I was waiting for the day that I agree with Tim for a long time.

    • Guest

      Yeah, lefties like Tim are on their safest ground when they want to allow abortions, accept gay marriage and legalize drugs and hookers.

      It is when they try and claim to be economic experts that they lapse into irrelevance.

      This city is socially liberal but economically conservative. Forget that at your peril.

  • 4th Gen SFer

    On the fence about this one. Amsterdam’s red light district is filled with women in windows, it’s not good and most of them are from other countries. It’s very very sad.

    “They can be anything – single (often), in relationships or married, with or without children, from all social and family backgrounds. But most are below 30, the majority are non-Dutch, and the levels of education aren’t too high. There have always been quite some South American women here, but the majority seems to be East European these days. The once considerable number of Thai girls has decreased a lot.”

    http://www.amsterdam-advisor.com/amsterdam-prostitutes.html

    • Greg

      Sad for whom? The independent providers who choose to rent those spaces are making a conscious decision about what kind of work they want to do. It may not be the decision you would make, but I think you should respect their decision. I’m sure you’d make the argument that none of them are doing it because they love their work -that they’re only doing it because life circumstances forced them to make this choice. Perhaps you’re right, though some truly do enjoy it (and I would argue that, as with any profession, the ones who enjoy it are probably the best ones at it). But that’s beside the point. The argument falls flat with me because one could make a similar argument about many jobs that people do. I could think of far more hazardous and/or unpleasant jobs than sex work. Is it more pleasant to clean people’s toilets, cleaning their urine and feces, or to have sex for money? Is it more dangerous to be sex worker in a legalized environment like Amsterdam where the cops are on your side, or to work as a coal miner where you’re pretty much guaranteed a premature death from lung disease (if an accident doesn’t get you first?). Through in the fact that sex work yields many times the amount of money as some of these other types of work, and the choice becomes understandably easy for people who have the right characteristics for it.

  • Dreamer

    People have been “paying for sex” since time began.

    Even now, indirectly. A dinner, a movie, flowers, an engagement ring, alluring clothes, a house in the suburbs, a new sporty car, breath freshener, etc. All are sold as “sex appeal”. Sex sells practically everything. Even a “conservative” suit and tie sells sex (conveys the image of power and control )– which some people say is the ultimate in sex appeal.

    My mother once nervously joked that she wouldn’t sleep with my father back in the late 50s and early 60s unless and until she had a wedding ring and a house with a 30 year mortgage. Big ticket items.

    Of course, if men (and women) could pay directly for sex service outright, legally, all these industries would suffer economic loss. Cant have that. Churches would have to concentrate on helping the poor, rather than harassing sexually consenting adults.

    But would this be just way to radical? Same-sex marriage once was thought to be impossible.
    Legalization of marijuana too. However, perhaps legalized sex work is too far for most people.

    • 4th Gen SFer

      You don’t know many women, real life ones if that’s how you think. How pre-historic and backwards and old.

      • Greg

        Perhaps, then, you too should listen to some real women.

        That’s exactly what the DCCC did during the debate for Prop K a few years ago.

        I was in the audience sitting next to a woman I know from mainstream Democratic Party circles. At the beginning of the evening, she tells me, “I’m really torn on this one. As a feminist… I really hate it -prostitution.”

        As the evening went on, woman after woman who worked in the industry got up and spoke about why it was important for her that decriminalization passes. The testimony was powerful, compelling. It swayed a reluctant DCCC. It swayed my friend. At the end of the evening, she used the same phrase, “As a feminist,” she said, “I have to support them.”

        Incidentally, the opponents of decriminalization had every opportunity, and made every effort, to bring people out to speak for their side. But other than one or two people from SAGE who came to speak the same tired lines they always peddle, they just couldn’t find anyone. Surely, with all the work these self-proclaimed saviors of women do, they could find one or two who were grateful enough for being saved that they could be bothered to come talk about the evils of prostitution. But they just couldn’t. The people who came out said loudly and clearly that they weren’t interested in being saved. They just wanted to be safe -at least safe enough to turn to LE for help when they needed it. And, to be accepted for who they are and the work they chose to do.

        I said at the time that if only all of San Francisco could have heard that public comment, Prop K would pass in a landslide. Of course, as we all know, all of San Francisco didn’t listen to it. And I daresay that some don’t want to listen, because their minds are closed.

        But the times they are a-changing. Old hang-ups are dying, and so are old people who have those hang-ups, replaced by newer generations with progressively fewer hang-ups. More power to these courageous women stepping forward and trying this new approach to securing their rights.

        • 4th Gen SFer

          You know what feels really creepy? A man like you Greg, an older man telling women what to feel about prostitution. I almost feel that women alone should make the legislative decision, and men should have no say. Because you sound very creepy to me and too involved in the issue from a needy, emotional viewpoint. Women will listen to other women about the issue, but not to a needy desperate older man who sounds like he wears a raincoat.

          • Greg

            Well, there you go. I think I’m making some cogent arguments, and you slide into ad hominem attacks and baseless assumptions. For me, this is about freedom -no more, no less. To me it sounds like you’re the one who’s thinking purely on an emotional level. The fact that by your own admission you’re incapable of rationally considering the point of view of another poster’s ideas simply because that poster is a man, is pretty much case in point.

            BTW… never a good idea to start limiting decision-making to one particular group, because… democracy. And besides, a transaction involves two sides.

          • Shame on you for resorting to stereotyping older, sexually needy men as “creepy”!

            Not only is it an ad hominem attack, but it is bigoted.

            I’m tired of seeing older men who still have active, healthy sexual desires being demonized for them.

            On what other issue would you say to someone, “I think you are too needy or desperate when it comes to this issue, so your opinion on it doesn’t count”?

            You also seem to be ignorant of (or simply are ignoring) the fact that not only women are prostitutes. As a male sex worker, I do not appreciate you telling me that I should be disenfranchised when it comes to having a voice about my own work!

          • Greg

            Incidentally, I don’t think I qualify as an “older” man, let alone a “needy” one. But then again, I probably won’t think of myself as an “older” man even when I’m twice my age.

  • Liz

    “The commercial exchange of private sexual activity between consenting adults hurts no one”

    Wrong! It hurts the wives and the children of the johns. It ruins families, leads to messy and expensive divorces and destabilizes society. The bimbos (both hookers and johns) who think they’re harming no one need to remove their blindfolds and acknowledge the families and children they’re damaging.

    • Greg

      You’re making the assumption that every client (“john” is such an ugly word) is married. For a lot of clients, it fulfills an important human need that they’re just not getting in other ways. I was at a conference in Reno once, and given the proximity, the subject of legalized prostitution came up during a debate. There was a gentleman in a wheelchair, with some physical disabilities, who admitted that at 62, he was still a virgin, and one of deciding factors for him in coming to Reno, was that he wanted to try legalized prostitution because it was the only way he felt he’d be able to fulfill that need. What a cruel society it is that denies people like that the ability to fulfill a basic human need! And for what? Some arbitrary morality that really has nothing to do with harm prevention and everything to do with personal sexual hang-ups resulting from years of religious indoctrination?

      Admittedly, that’s an extreme example. But I’d say most of the clientele in places like Amsterdam are young guys on “stag weekends” from the UK and such. Some may have wives and kids, but from what I’ve seen of the crowds coming from the red light district, I suspect that most do not.

      In some cases, it may not be the most moral thing to do. But no actions happen in a total vacuum when you live in society. Many things are dangerous and harmful -from sugary drinks to skiing to driving cars (and riding bikes for that matter). And the consequences of these things affect not just the do-er, but their families as well. That doesn’t mean that everything dangerous or even immoral should be illegal. But let’s be honest with ourselves. This isn’t really about protecting hypothetical wives and kids from hypothetical harm, is it now?

      • 4th Gen SFer

        This is what I’m talking about Greg. Your weird creepy opinion on it that sounds desperate. Just leave Liz alone in what she feels, she doesn’t need your creepy thoughts about what she thinks on this issue. It’s an issue that women need to think about because there’s a lot of harm there.

        • Guest

          What would women do without Greg to tell them what to d and not do with their bodies?

          • Greg

            Funny, I think I’m the one arguing for the freedom of everyone (both women and men) to do what they wish with their bodies. To turn that on its head and argue that criminalizing something makes people more free is just really bizarre, and shows just how unable people are to think rationally about this subject.

            And Liz can certainly feel how she wants, but this is a public forum and I have a right to try to shake up people’s worldview a bit, don’t I?

            You know what’s really “creepy?” People who not only think they’re right, but are so deeply indoctrinated that not only refuse to consider other points of view, but insinuate that others don’t even have a *right* to express it.

      • Beautifully written, Greg. Couldn’t have said it better myself. Thank you for your eloquent contributions to this discussion.

      • Greg, thank you for taking on a difficult subject and exposing yourself to a forum where you are guaranteed to receive all manner of negative energy thrown your way. Your responses are measured and detached from emotion and full of sensible rationale. With people like you out there speaking to issues that fire people up and still able to maintain your own integrity as you go through the ‘fire’ is admirable and you deserve props….

    • TennisPlayerMichael

      Alcoholic do that to their families also. And by that logic Liz, wives don’t cheat on their husbands, husbands don’t cheat with their coworkers? Using decrim sex work as scapegoat for infidelity in a spouse.

    • Liz, “johns” and “bimbos” are offensive and derogatory terms. Please avoid using them. The accepted term for customers of prostitutes and other sex workers is “clients”, and slut-shaming is absolutely not cool.

  • mrsrobinsoninri

    Attention Erotic Service Providers:

    Are you tired of the discrimination.

    Then join the Erotic Service Provider’s Union and stand in solidarity with us.

    http://espu-ca.org/wp/

  • As a current Seattle-based sex worker, I am proud to see colleagues in my hometown state taking legal action to work towards decriminalizing our industry. Yesterday, March 3, was International Sex Worker Rights Day. In Washington, we held a peaceful demonstration at the Capitol in Olympia. Details here: http://reason.com/blog/2015/03/04/from-olympia-to-india-activists-organize?utm_campaign=naytev&utm_content=54f76865e4b085999517d702

    I fully support the decriminalization of consensual adult sex work and commend the SF workers fighting for harm reduction.

  • Freddy Raymond

    Guys what ever you want you can do. Its your right. But what about your rights. Like every one you also have the rights to live and all. But still if its necessary then no one else can stop you. All is yours, what ever you like you can do or just show them the rights. Take care everyone and think different.
    (Droit Social) http://www.legisocial.fr/