February 17, 2006

The Second Track of My Mind

by PG

Moving from porn to prostitution, this sentence in a story about a sheriff who no longer will allow deputies to participate in law-breaking by receiving services while engaged in stings raised my eyebrows: "The two suspected operators and three women accused of working there face several charges, including prostitution and sodomy, Smith said." Scalia et al.'s alarmism notwithstanding, the place of prostitution in the criminal statute books faces little challenge from Lawrence, but there is no reason to treat paid sodomy differently or separately from paid non-sodomy.

In Virginia, prostitution is a Class 1 misdemeanor and � 18.2-361, crimes against nature, is still on the books and counted as a Class 6 felony, but any half-competent defense attorney should prevent the felony from being charged due to its unconstitutionality. Possibly Virginia could try to do the same thing with prostitution that other states have done with statutory rape, i.e. imposing a higher penalty for the crime when it involves sodomy. (The reasoning behind the Kansas Supreme Court's declaration that the state's "Romeo and Juliet" exception is unconstitutional doesn't necessarily help the Virginia prostitutes, because that was dependent on the "opposite sex" provision, not one about the acts involved in the crime.)

Incidentally, I actually did find plausible the necessity of having the suspect at least begin to perform the service, "because most professionals know not to say anything incriminating. And conversation is difficult, he said, because masseuses at the Asian-run parlors in the northern Virginia county speak little English." The aforementioned half-competent defense attorney also ought to be able to, well, get off an immigrant woman who's being charged with a crime solely on the basis of having made a rude hand gesture, unless the prosecution can prove that both she and the customer were using an official recognized sign language. The disgusting absurdity of such stings shall remain to be discussed another day.

February 17, 2006 6:18 PM | TrackBack

Isn't the lesson of Lawrence that the state must have a rational basis for treating paid intercourse differently from unpaid, and that purely moral judgments are not a rational basis? How, then, does a prohibition on prostitution survive a constitutional challenge?

Posted by: Tom T. at February 20, 2006 1:58 PM

If requiring pasties is a legitimate way to protect a city from the crime that would result from uncovered nipples, then prohibiting paid intercourse seems like a far more legitimate way to protect health, safety and the institution of marriage. I'd consider prohibitions on fornication outside of monoamory to pass the amoral rational basis test. A city could limit the negative effects of prostitution by engaging in extensive regulation -- licensing prostitutes, testing them for STDs, mandating condoms on pain of losing the license -- but that's a larger burden that a court is likely to command a government to undertake.

Posted by: PG at February 20, 2006 8:41 PM
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