What a Shame: Oakland Announces Plans to Post Photos of Convicted Johns

By SHERRY F. COLB

Wednesday, Mar. 23, 2005

Last month, Oakland City Council President Ignacio De La Fuente announced plans to post pictures of convicted johns - people found guilty of soliciting prostitutes - on billboards and bus stops. Such a penalty raises a variety of questions.

One question concerns the proper role of shaming in our criminal justice system, a topic on which I wrote an earlier column.

Another asks about the comparative culpability of johns and prostitutes, the latter of whom ordinarily bear the brunt of any criminal sanctions against the practice.

And a third addresses a larger issue -- namely, why the so-called oldest profession is against the law at all. In this column, I will turn my attention to that final question.

Why Posting Photographs is an Effective Punishment

One way of approaching the matter is to ask why shaming works. That is, why would many men find it mortifying to have their pictures posted on billboards as solicitors or customers of prostitutes? A number of possible answers suggest themselves.

Perhaps being convicted of any crime is embarrassing, and therefore, almost everyone would be ashamed to be publicly identified as a criminal. There may be some truth to this. Still, it is unlikely that a conviction for driving over the speed limit or J-walking would be nearly as stigmatizing. It is therefore something about the content of the particular offense involved that accounts for the effectiveness of shaming as a punitive measure.

A second possibility is that soliciting a prostitute is a terrible crime akin to murder or rape, and that is what accounts for the shame. But that too seems implausible.

Many people view prostitution as a victimless crime precisely because it is not inherently a terrible thing. Assuming that the prostitute is an adult, no one necessarily gets hurt, and everyone arguably gets a benefit.

Granted, Oakland residents choose to inflict shaming penalties because the presence of prostitutes walking around a neighborhood can depress property values and strikes many as contributing to a sleazy atmosphere. But such opposition might as easily form in response to efforts to place a group home for mentally retarded adults in a neighborhood, and there is nothing terrible about mentally retarded people. The truth is that anything un-glamorous could drive down property values without in any way violating a criminal law or a norm against evil behavior.

So what accounts for the shame?

A likely answer is the societal perception that people who have to pay another person to have sex with them must be undesirable. This perception may be accurate as to some johns, while others may go to prostitutes to avoid the emotional entanglements that frequently result from uncompensated sexual relations. Still others may wish to live out sexual fantasies that the women (or men) in their lives find unappealing.

Why Prostitution Is a Crime in the First Place

But why are prostitution and solicitation against the law?

Regardless of whether the perception of johns as sexually desperate is accurate, this appearance cannot account for the criminal status of solicitation. Being undesirable to people of the opposite (or same) sex can be embarrassing, in the way that being viewed as a "loser" in high school is embarrassing. But it is no crime. So how could behavior that merely evidences that reality be criminal?

The simple explanation for why prostitution is a crime is that it is a morals offense -- a sin. Though neither party to the transaction is necessarily harmed, the law here prohibits sexual activity that falls outside of the prescribed relations.

But doesn't this explanation prove too much? Wouldn't an opposition to "sinful" sexual relations extend to homosexual contacts, nonprocreative forms of heterosexual sex,and fornication as well? Yes, it would.

The Right of Privacy and Prostitution

But the Supreme Court has already said of homosexual relations, in Lawrence v.Texas, that a right of privacy protects against state intervention in the form of criminal penalties. Is prostitution the next practice to be protected by the Court?

Not likely. Though prostitution is currently legal in Nevada, every other state categorically prohibits it, and the Supreme Court rarely invalidates such widely shared criminal prohibitions. The trend in the case of homosexuality laws had already favored decriminalization, while no such trend characterizes the law regarding prostitution. Furthermore, the Court has been especially willing to defer to legislatures when they take aim at commercial practices - and prostitution, of course, involves commerce.

Anti-Prostitution Laws As Boundary-Enforcing Prohibitions

But what explains the continuing near-universal criminalization of prostitution, even as bans on other "sinful" sexual practices have begun to disappear? What is so special about prostitution? The paradox here may be precisely that prostitution is not "special." It may, in other words, be the resemblance between the commercial practice of prostitution and permissible sexual behavior, rather than the distinctions between them, that make prostitution a target of the criminal law. In that sense, prohibitions against prostitution are boundary-enforcing prohibitions.

Consider the traditional marriage. The bride's father pays a dowry to the groom or his family for taking on the burden of providing financial support for the bride. Marrying "well," in fact, is still understood to mean that one's chosen has a lot of money or assets, which will now become property of both partners.

In exchange for financial support, traditionally, the bride will become available to the groom sexually and will bear him children and take care of his home. Though the exchange includes much more than sex, it does quite plainly contemplate that sex will be providedfor the man, and that money will be provided for the woman.

It is in part for this reason that most states did not recognize marital rape as a criminal offense until relatively recently. By marrying, a man was understood to have purchased a season pass to sexual favors from his wife.

The law has in many respects evolved, and marital rape is now virtually everywhere a crime (though frequently one that receives more lenient treatment than other rapes). Furthermore, women, as well as men, have acknowledged sexual desires that they seek to meet when they marry. At the same time, most women currently work outside the home and therefore do not depend for their survival upon support from their husbands in the way that a child would from her parents. Reciprocity, in other words, has begun to replace exchange as the currency of marriage.

Marriage's Implicit Barter of Sex for Money

Despite the changes, however, studies suggest that women continue to prefer less frequent sexual interaction than their husbands do, and that men continue to earn more money than their wives, a disparity that becomes especially pronounced once a couple has children. Thus, the exchange of sex for money within marriage has not disappeared, even with the fading of traditional marital role assignments.

That exchange, however, is and always has been obscured by the many other items traded as well. One might think of the provision of money for sex within marriage, then, as more of a barter phenomenon than an outright purchase.

Prostitution, by contrast, rips away the veneer and makes explicitly commercial what might otherwise be viewed as mutually desired. The prostitute takes money and provides a sexual service for that money. There is no love (other than in movies like "Pretty Woman"), and there is no promise of continuing exchange. It is akin to the sale of a carton of apple juice, in contrast to a relational contract between ongoing businesses.

Many would rather not think of married people as exchanging sex for money. Married couples are in love and share both sex and money out of affection and commitment and mutual desire, rather than an interest in compensation. For couples for whom this picture is true, prostitution is no threat at all. It is an entirely different practice that looks nothing like what they have.

But for couples for whom mutuality is an illusion, the existence of prostitution is an unattractive mirror that puts the lie to marriage's pretensions.

When prostitutes are asked why they do what they do, they often respond that they feel freer than wives who must provide sex and so much more to their husbands in return for financial support. Prostitutes thus view what wives do for their husbands as simply a more encumbered version of what they do for their clients.

As time goes on, we can hope that every marriage will become a friendship between lovers who want the same things out of life. But the reality for many marriages is far more the market exchange model that characterizes prostitution, though for a longer term.

As long as this is true, the criminal law is likely to continue to ban prostitution, an institution against which marriage wishes to define itself.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her other columns on criminal law, criminal procedure, and constitutional privacy issues can be found in the archive of her columns on this site.

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