The Other Prostitution Scandal

Why was Eliot Spitzer's lifestyle illegal, anyway?


Politicians take people's money with a promise to fulfill desires that supposedly can't be attained any other way. Prostitutes do the same, though by reputation, they are more reliable in delivering. It's not surprising for people in the same line of work to gravitate toward one another, as Eliot Spitzer and a woman named Kristen reportedly did in a Washington hotel room.

I understand why Spitzer's alleged hiring of a call girl was stupid, selfish, reckless, immoral and a betrayal of his family. What I don't understand is why it was illegal.

It's not as though sex is otherwise divorced from money. If it were, hot young women would be found on the arms of poor older men as often as they are seen with rich ones. Had the New York governor wanted to buy a $4,300 bauble to seduce someone of Kristen's age and pulchritude, only his wife and his financial adviser would have objected.

It was Spitzer's effort to hide this pastime that attracted law enforcement attention. Prosecutors investigated him not because he had lipstick on his collar, but because he took steps to conceal his patronage of Emperor's Club VIP. By transferring cash to accounts controlled by fake companies, he roused suspicions of political corruption. By now, he probably wishes he had only taken a gratuity to grease a contract.

It's hard to feel excessive sympathy when a colossal hypocrite is exposed. Recently, Spitzer signed a measure increasing penalties for men caught paying for sex, who can now go to jail for as long as a year. But schadenfreude is a weak justification for laws that intrude into the bedroom.

As with laws against illicit drugs and unsanctioned gambling, this policy tries to suppress powerful human appetites and consistently fails. What one New Orleans mayor said applies to a segment of every human society: "You can make prostitution illegal in Louisiana, but you can't make it unpopular."

Alternative newspapers, telephone directories and online sites are replete with ads for massage parlors, escort services and women "eager to meet you!"—proof that when individuals yearn to find each other for mutually gratifying transactions, they are bound to find a way.

Even the prospect of arrest and public humiliation doesn't deter a lot of people on either side of the business. What should be obvious by now is that they are willing to spend far more effort achieving these encounters than the rest of us are to spend preventing them.

Outlawing this commerce serves mainly to make things worse, not better. It assures income to criminal organizations with long experience evading the law. It makes prostitutes vulnerable to abuse. It prevents measures to protect the health of providers and patrons.

It exempts an industry from the taxes and fees that legitimate businesses have to pay. It squanders police resources that could be used to fight real crime, while clogging jails and courts with offenders who will soon be back plying their trade.

Supporters of the status quo say the sex industry is filled with victims of human trafficking—foreigners forced to work in servitude. Whether such modern-day slaves amount to more than a tiny fraction of hookers, however, has never been proved.

Similar claims have been made about migrant farm laborers and domestic workers—which is not taken as grounds to ban fruit picking or home cleaning. Someone whose very job is illegal, in fact, is an ideal candidate for such exploitation, since she is unlikely to go to the cops.

But all this is secondary to the priority of human freedom. We no longer believe the government has a right to prevent homosexuals or heterosexuals from engaging in sexual practices. In 2003, the Supreme Court had the wisdom to strike down a Texas sodomy prosecution against two homosexuals caught in the act.

"The petitioners are entitled to respect for their private lives," asserted the court. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

Some brilliant lawyer ought to ask the courts why the state may ban one type of sex between consenting adults but not another. Maybe Eliot Spitzer would like to take it on.