ACLU

[Wowie69]

I have a theoretical question I would like to pose to the members. (I am not a lawyer, so forgive my ignorance on legal matters.)

What would happen if someone were arrested (let's say caught right in the act) with a provider. And the guy, perhaps because he was single (and thus didn't have to worry about affecting his family), decided to fight the charge (all the way to the Supreme Court, if necessary) by claiming that prostitution laws are unconstitutional.

Does a person have the right to argue that a law (any law) is unconstitutional as the basis for his innocence? (I said I was legally dumb at the beginning...)

It would seem to me that since sex can occur for free, thus proving that sex in itself is a harmless activity, then how can government argue that paying for sex can be a crime. I can understand how government can argue that drug use is a crime because they can claim that there is harmful physical result. But since sex has to be considered harmless (or else all sex should be illegal), then the government's real arguement for maintaining prostitution laws is the payment. It would then seem that the arguement is "can two consenting adults agree to a financial contract that allows physical pleasure?".

What would be the opposing arguement?

Moral, legal, bureaucratic???


Finally, does anyone know what the ACLU's views on prostitution are?

I would have thought that prostitution laws would have been one of those classic ACLU type cases - the ACLU would claim they don't like the reality of prostitution, but they would vehemently defend the civil liberties of those citizens who engage in the activity.

Wowie69

 

[fishfry]

I'm not an attorney but my understanding is that in order to claim that a law is unconstitutional you'd have to say which clause in the Constitution has been violated.

I suppose you could get creative and say that commercial sex is a form of speech (flag burning and email spam are two activities protected by the first amendment).

An interesting argument would be to try to argue a right of privacy, analagous to Roe v. Wade. However even many legal scholars who are pro choice acknowledge that from a technical standpoint, Roe v. Wade is not very good law. It's not clear whether there's a right to privacy in the Constitution.

It sounds like a long shot.

Personally I think criminalizing sexual activity between consenting adults is wrong. There are still laws on the books in many states against oral sex, anal sex, and homosexual sex. And there are laws against paid sex.

Someday perhaps the laws will change.

There's a good book on the subject of victimless or consensual crimes, called Ain't Nobody's Business if you Do. by Peter McWilliams. See http://www.mcwilliams.com/books/aint/. Also see http://www.mcwilliams.com/bio.htm.

fish

 

[wsb]

I'm pretty busy at the moment, but I'll give you my quick $.02.

I think it is pretty unlikely that certiorari (an order by an appellate/superior court to a court of inferior jurisdiction, commanding that court to submit the case for review) would be granted by the Supreme Court to review such a case, but the Supremes have sort of indirectly ruled on this since they have held in recent cases concerning the regulation of adult businesses that the states and municipalities have the right to do as they see fit in order to ensure the quality of life of their citizens.

--WSB

 

[wsb]

By the way, I seem to recall that the Supreme Court did grant cert in a Georgia or Alabama case that questioned the Constitutionality of that states laws against sodomy and the court upheld the states right to do so. The Constitutional question in a case like this (and also presumably in a case challenging laws against prostituion) is not whether or not sodomy/prostitution/etc. should be legal, but rather whether or not the states have a right to pass laws against such activity. In this respect the Court has decisively held that the states have a right to do so.

--WSB