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9th circuit hears sex work case

by Seth Hemmelgarn

The 9th U.S. Circuit Court of Appeals in San Francisco recently heard a case that seeks to decriminalize prostitution in California.

The case, ESPLERP v. Gascón, originated in 2015, when the Erotic Service Providers Legal, Education, and Research Project filed a complaint claiming that Penal Code 647(b), the state's anti-prostitution statute "unfairly deprives consenting adults of the right to private activity, criminalizes the discussion of such activity, and unconstitutionally places prohibitions on individuals' right to freely associate," according to an ESPLERP news release.

The named plaintiffs are "three women who want the right to sell sex" in the state, and one man "who wants to pay for sex," the news release said.

Named defendants include San Francisco District Attorney George Gascón and state Attorney General Xavier Becerra.

ESPLERP President Maxine Doogan said in the news release, "Our hope is to see this bad law struck down, so that consenting adults who choose to be involved in prostitution are simply treated as private citizens again, and are afforded all the privacy and constitutional rights thereof."

At the hearing in the case last Thursday, October 19, plaintiffs' attorney H. Louis Sirkin said, "This case is not about sex trafficking" or using minors for sex. It's about "consenting adults who want to engage voluntarily" in sex work. The current law "infringes on the right of individuals to make their own individual choices of how to behave."

The U.S. Supreme Court's 2003 landmark Lawrence v. Texas decision, which overturned all remaining state sodomy laws in the country, was repeatedly invoked at Thursday's hearing.

U.S. Circuit Judge Carlos Bea asked, "What is the fundamental right," the sex conduct "or the personal relationship?" Sirkin said he believes it's the sex conduct.

Bea told Sirkin that his clients "don't have enduring bonds," which was what Lawrence covered.

Judge Jane Restani, who's a senior judge on the U.S. Court of International Trade, mentioned Supreme Court Justice Anthony Kennedy, who had said that Lawrence didn't involve prostitution.

Some of the discussion revolved around whether the controlling case should be the 1988 case IDK Inc. v. Clark County, rather than Lawrence. (According to the site www.Pornharmsresearch.com, the 9th Circuit determined that, among other findings, "Under any test, it is clear that the escort services are primarily commercial enterprises and their activities are not predominately of the type protected by the First Amendment.")

Sirkin said IDK didn't specifically mention prostitution, either.

U.S. Circuit Judge Consuelo Callahan accurately predicted that the government would argue that prostitution is "not a victimless crime," and she brought up dangers such as sex trafficking and working for pimps.

Sirkin said that his clients have decided on their own that "this is a way [they] can make a living," and they're not working for pimps. He said that "the only reason to prohibit" trading sex for money is if it's based on "morality."

Deputy state Attorney General Sharon O'Grady argued that IDK is the controlling case, since "Lawrence is about relationships and not about the sexual act." O'Grady also said that prostitution is a "commercial transaction."

Callahan said that Lawrence affirmed people's right "to decide how to conduct their private lives" in regards to sex.

It's "the commercial aspect" that makes the difference, said O'Grady. Sexual relations involving "two men in the privacy of one of their homes ... is one thing," but "if you're simply buying sex ... that is not an enduring relationship by any measure." She added, "I do believe IDK remains the law."

Bea asked O'Grady whether she was saying, "If it's commercial, it can't be personal" in every case. O'Grady said that friends don't pay each other for sex.

"There is not a fundamental right to have a commercial transaction in which sex is the product being sold," said O'Grady.

O'Grady also suggested the judges should consider "the deterrence of trafficking" and "violence against women."

Bea noted that 647(b) doesn't distinguish between whether the transaction occurs on a street, in a brothel, or on the internet, and Callahan said, "You could be convicted of 647(b) in your own home."

It's not known when the judges will issue a ruling in the case.

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