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A "Don't Ask, Don't Tell" Policy And The Significance Of Secrecy


Wednesday, Sep. 12, 2001

A new law taking effect this month in Britain makes it a crime for prostitutes to advertise their services — even though prostitution itself is not criminal there. The law takes aim at the proliferation of prostitutes' business cards in British telephone booths.

Anyone who violates the advertising prohibition may be incarcerated for up to six months. In announcing the new regime, the deputy leader of the Westminster City Council in London said, "[T]he public share our strong desire to see this problem wiped out" — meaning, apparently, the advertising problem, not the prostitution problem.

The new legislation and the sentiment behind it reflect and enforce a "Don't ask, don't tell" policy toward sex work. That is unfortunate. Whether it attaches to prostitution, homosexuality, abortion, or non-procreative sex, "Don't ask, don't tell" is destructive.

Nevada's Similar Law Against Advertising Prostitution

The United States, unlike Britain, criminally prohibits prostitution — except in Nevada. Interestingly, though, Nevada, like Britain, imposes criminal penalties for brothel advertising in certain public areas, even in those cities in which brothels are legal.

Despite the prohibitions against advertising, prostitution as a business continues to thrive. If the point of advertising bans is thus to reduce this practice, then they have been a colossal failure. Yet they are still adopted and maintained — raising the interesting question of what purpose they serve, if not decreasing prostitution?

One could view the prohibitions as motivated by a goal quite distinct from eliminating the activity whose advertisement is banned. The objective could be to render certain people invisible.

Invisibility and Homosexuality

The United States has a tradition of encouraging such invisibility. "Don't ask, don't tell" is the official (and infamous) U.S. military policy toward gay and lesbian service members. The policy allows gay men and lesbians to join the military, as long as they do not identify themselves as such.

Because of the "Don't ask" component of the policy, gay people need not lie directly, as they had to in the past. However, if they speak of their sexual orientation to other service members or otherwise make their identities known, they are subject to discharge. What is required of them, in essence, is invisibility: They can remain in the military, but only so long as they protect those around them from learning their true identities.

Some have viewed this military policy as progressive, at least by comparison to the complete ban that preceded it. Even that faint praise, however, may not be due. Contrary to expectations, expulsions of gay men and lesbians have actually increased since the current, ostensibly more liberal policy was implemented.

Invisibility and Abortion

"Don't ask, don't tell" attitudes toward sexuality have affected other groups as well. Consider the case of the woman who obtains an abortion, an activity intimately connected to the desire to have sex without procreating.

Though abortion is constitutionally protected in this country, federal law prohibits doctors at clinics funded by the government from telling their pregnant patients about the abortion option (other than to state, if a woman asks for a referral, that "the [Title X] project does not consider abortion an appropriate method of family planning, and therefore does not counsel or refer for abortion" — as the Supreme Court's decision in Rust v. Sullivan notes). This rule aims to make abortion invisible; even if it occurs, the law ensures that it will not be discussed — especially with the very women who may want to avail themselves of that option.

Meanwhile, women themselves tend to feel that they must keep their abortions a secret, for fear of the condemnation and stigma they might suffer if their experiences were generally known. Network television further encourages this silence by virtually never having a popular character in a drama carry out a decision to terminate her pregnancy. (Interestingly, HBO, a cable station not dependent on advertising revenue, has been somewhat bolder over the years in openly addressing abortion issues for its viewers).

Women who have abortions thus make up an invisible, ashamed group of people, in spite of the fact that they exercise a fundamental right.

Invisibility and Other Sexual Nonconformity

The invisibility phenomenon has a long history. Consider pre-marital sex twenty years ago. By the early 1980's, a woman could have (and talk about having) sexual relations prior to marriage without shame or embarrassment in most circles. Indeed, many young women felt embarrassed about still being virgins after a certain age. Nonetheless, out-of-wedlock pregnancy continued to carry a very significant stigma. The stigma, moreover, seemed to attach less to the fact that a child would be born into a one-parent family than to the open and notorious advertisement of non-marital sexual activity that the pregnancy represented.

Nowadays, out-of-wedlock pregnancy is usually not a terrible embarrassment and is often not an accident at all but affirmatively sought. Choosing to raise a child without a father, however, continues to be stigmatized. Since the stigma of single motherhood co-exists with the stigma of abortion, it appears that though it has evolved in the form that it takes, societal condemnation still remains sexuality-linked. The only effective way to avoid the stigma altogether is to embrace abstinence prior to marriage.

Invisibility Injures its Targets

The costs of enforced secrecy are grave. Were it not for "the closet," for instance, many more gay men would have had the information necessary to protect themselves from HIV transmission over the last two decades. It is quite challenging to disseminate facts to people who feel compelled to avoid detection.

The same is true for prostitutes, another population vulnerable to the virus that causes AIDS. Their status as outcasts has made nearly impossible an official insistence on "safer sex" practices that might have saved many lives. We know as well that the secrecy surrounding abortion has led to deaths. Some young women, ashamed to tell anyone of their predicaments, have once again found themselves at the mercy of the back-alley.

A business card that tells a potential John in London how to reach a sex worker is, of course, not a source of important health and safety information. No one will argue that sexual advertising "saves lives." It does, however, recognize a prostitute's interest in communicating about what she does and who she is. It acknowledges the right of the prostitute to a voice, the same right that the rest of us have.

Once she can communicate freely about her job, the sex worker has an ability that she can use to protect herself from harm. Conversely, to shut her up is to convey the message that her life and activities are unacceptable to the rest of us, her day-to-day existence a matter of shame and disgrace for the populace.

As a result of the advertising prohibition, she is literally "cast out" of the marketplace and accordingly remains vulnerable to the abuse that prostitutes regularly suffer at the hands of pimps and Johns. Britain might consider some of the serious costs of "Don't ask, don't tell" when it comes time to evaluate the efficacy and utility of its new, characteristically American regime.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. She has previously written for this site on topics including abortion; her columns on this and other topics can be found in Writ's archive.

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