Hiding in Plain Sight

Spitzer's Scarlet Number scandal has rekindled a very old debate about the proper legal treatment of prostitution. Is it a victimless crime? Assuming, as seems obviously right, that a great many young women who trade sex for money do so reluctantly, under at least economic duress, is criminalization the right answer? Should law enforcement resources be targeted at pimps, prostitutes, and/or---as Eliot Spitzer himself contended not too long ago---johns?

These are important policy questions to which I do not have any easy answers, but I do want to point out what seems to me a mistaken assumption in this debate: The assumption is that prostitution is, as a matter of positive law, forbidden, and the hard questions are normative. Of course, I do not deny that prostitution is illegal in every state (save parts of Nevada) and the District of Columbia, nor do I deny that the Mann Act and other federal criminal statutes apply to some acts of prostitution. So I admit that the "law on the books" forbids prostitution, but the law on the streets does not, or at least does not consistently forbid prostitution.

Let's look at the law on the books in the District of Columbia:

It is unlawful for any person to engage in prostitution or to solicit for prostitution. The penalties for violation of this section shall be a fine of $500 or not more than 90 days imprisonment, or both, for the first offense, a fine of $750 or not more than 135 days imprisonment, or both, for the second offense, and a fine of $1,000 or not more than 180 days imprisonment, or both, for the third and each subsequent offense.

Now let's look at how the law on the books is perceived by businesspeople in the District. I'll do this by an admittedly unscientific but nonetheless informative method. I'll look in the online DC Yellow Pages. If you go to an online yellow pages, you will quickly find numerous entries for "escort" services that are pretty obviously prostitution services. So people who want to run prostitution rings feel sufficiently confident in the lack of law enforcement attention to advertise on the internet. If the government wanted to prosecute prostitution offenses, it would presumably be very easy to run sting operations.

I think Eliot Spitzer understood the basic fact of severe under-enforcement. He wasn't afraid of getting caught for solicitation because he knew that law enforcement doesn't pay much attention to that crime. Yes, he was foolhardy in the extreme to engage in structuring, but I suspect that he did that because, thinking prostitution was not "really" illegal, he spent his energy trying to conceal his membership in the Emperor's Club from his wife, the media, and the public. He simply wasn't focused on law enforcement.

Finally, a gigantic caveat. I AM NOT GIVING ANY FORM OF LEGAL ADVICE TO THE EFFECT THAT YOU CAN GO TO OR BE A PROSTITUTE WITHOUT BREAKING THE LAW. I AM SAYING THAT UP UNTIL THIS POINT, THE ODDS OF ANY PARTICULAR PROSTITUTE OR JOHN GETTING PROSECUTED FOR ANY PARTICULAR ACT OF PROSTITUTION WERE PRETTY DARN LOW.

Posted by Mike Dorf