Constitutional Prostitution
A California lawsuit could bring sex work out into the open.
"Somewhere, some document says that I'm entitled to the pursuit of happiness," says Bacchus, a burly Oakland, California, man sporting a white beard and a wide grin that evoke the mythical character whose name he has appropriated. "I can't think of many things that make most people happier than sex."
When Bacchus was an infant, a surgery intended to repair a birth defect instead left his penis mangled, tiny, and nerve-damaged. When he reached puberty, he realized he was unable to achieve climax without hours of stimulation. His condition crippled his ability to pursue romantic and sexual relationships.
As an adult, he consulted a sex therapist, who prescribed him a "sex surrogate." The surrogate told him what he'd always known: He had a physical problem that required the skill and patience of a professional. Unwilling to jump through the expensive hoops required to continue using the services of the surrogate, Bacchus turned to another type of sex worker: prostitutes.
Prostitution is, of course, illegal in California, just as it is in every other place in America aside from a few rural Nevada counties. But a new lawsuit naming California's attorney general and several mayors as defendants claims that prohibitions against sex work, while nearly ubiquitous, are unconstitutional.
"We don't have equal protection under the law," says Maxine Doogan, a working prostitute and president of the Erotic Service Provider Legal, Education, and Research Project (ESPLER), the group behind the lawsuit.
The plaintiffs in the case include several unnamed prostitutes living in the San Francisco Bay Area, as well as an anonymous customer, or "john," who much like Bacchus says he uses prostitutes because he has a disability and can't get sexual relief any other way.
ESPLER's case rests upon three main constitutional issues: a right to "sexual privacy" protected by the 14th Amendment, a due process right to earn a living, and the First Amendment's guarantee of freedom of association.
"A very, very broad anti-prostitution statute violates a constitutional right to privacy," says Jerald Mosley, a lawyer who served as a deputy supervising attorney general under California Attorney General Kamala Harris, one of the defendants named in ESPLER's suit. Mosley is now arguing against his old boss in favor of decriminalizing prostitution.
The key legal precedent for ESPLER's case is Lawrence v. Texas, the 2003 case in which the U.S. Supreme Court struck down an anti-sodomy law because it violated a gay couple's right to sexual privacy under the 14th Amendment.
Mosley argues that the relationship between a prostitute and a client, which can be as much about emotional intimacy as it is about sexual gratification, falls into the protected category addressed in Lawrence and therefore cannot be banned by the state without an overriding "legitimate" government interest.
The attorney general's office filed a motion to dismiss ESPLER's case in May, citing several alleged legitimate interests in keeping prostitution illegal, including the state's interest in "deterring human trafficking and coercion," "the spread of AIDS and venereal disease," and "California's interest in deterring commodification of sex."
When it comes to the spread of infectious diseases, advocates point out that the incidence of venereal disease is comparable to, and often lower, among sex workers than it is among the general population. Nevada has not documented a single case of HIV among workers in its legal brothels. A U.N. report found "very low" rates of sexually transmitted infections among the sex workers of New Zealand, a country whose total decriminalization of prostitution many advocates consider to be the gold standard in sex work policy. The evidence is so strong that former U.S. Surgeon General Joycelyn Elders has called for the legalization of prostitution as a public health measure.
And the state's line about human trafficking is an increasingly common scare tactic used by legalization opponents to conflate voluntary and involuntary sex work, says Mosley (see "The War on Sex Trafficking Is the New War on Drugs," page 18). But it's the government's concerns about the "commodification of sex" that he finds most outrageous. "When we talk about commodification…we're not giving reasons for disapproving of prostitution," says Mosley. "We're just signaling that we have a very, very deep emotional opposition to it."
The fate of ESPLER's case could be decided any day now when a judge in the U.S. Northern District Court of California rules on the government's motion to dismiss. Whatever the outcome, advocates of decriminalization are vowing to push the fight onto the national stage.
"I really think that the American public is ready," says Doogan. "They're ready to throw off all of these draconian laws and move forward as a society."
This article originally appeared in print under the headline "Constitutional Prostitution."
