PROSTITUTION, POLITICIANS AND PUNISHMENT

Houston Criminal Defense Attorney John T. Floyd discusses

Prostitution in light of the Eliot Spitzer Scandal; Selective Prosecution?

New York Gov. Eliot Spitzer recently became the 22nd governor in the
history of the United States to leave office under a cloud of scandal before
their term ended. He is the 12th governor to resign because of political or
legal problems. The other ten governors were either legally removed from
office or impeached. Spitzer was forced to resign after it was revealed that
he was “Client 9” who paid as much as $80,000 to a $1,000-an-hour call girl
under federal indictment in an Internet prostitution ring. Interestingly, six
other governors in modern times have survived “sex scandals” while in
office and managed to complete their terms.

Why Spitzer?

The answer is relatively simple: Spitzer was a former aggressive prosecutor

dubbed the “sheriff of Wall Street.” He made a laundry list of enemies in the
powerful Wall Street financial community and, as governor, chartered a
political course to crush all his enemies in the state legislature, particularly
Republicans. He held himself out to the general public as the paradigm of
individual morality, professional integrity, and political honesty. It was a
recipe for failure should the slightest chink be found in his public persona.
That chink was found when he became “Client 9.”

It is interesting that Spitzer’s political demise came about because of a

federal investigation into an Internet adult prostitution ring. The feds almost
exclusively investigate “child prostitution rings” operating on the Internet,
deferring to state authorities for investigative efforts into Internet adult
prostitution rings. See: United States v. Miller, 148 F.3d 207 (2nd Cir. 1998).

The lingering question is whether Spitzer will be prosecuted. The U.S.

Attorney’s Office in the Southern District of New York is exploring that
option. The U.S. Attorney’s Office could prosecute the former governor
under 18 U.S.C. § 2421 [Transportation, more commonly known as the
Mann Act] which provides:

“Whoever knowingly transports any individual in interstate or foreign

commerce, or in any Territory or Possession of the United States, with intent
that such individual engage in prostitution, or in any sexual activity for
which any person can be charged with a criminal offense, or attempts to do
so, shall be fined under this title or imprisoned not more than 10 years, or
both.”

This statute, also known as the White-Slavery Act, would require the
government to establish that Spitzer’s payment of the prostitute’s travel
expenses to Washington, D.C. constituted a knowing intent to “transport”
her across state lines to “engage in prostitution.” A good defense attorney –
and Spitzer certainly has the money to hire the best – could mount a serious
challenge to that contention.

Two other possible laws under which Spitzer could be prosecuted are: 18
U.S.C. § 2422 [Coercion and Enticement) which provides:

“Whoever knowingly persuades, induces, entices, or coerces any individual

to travel in interstate or foreign commerce, or in any Territory or Possession
of the United States, to engage in prostitution, or in any sexual activity for
which any person can be charged with a criminal offense, or attempts to do
so, shall be fined under this title or imprisoned not more than 20 years, or
both.”

§ 2422 is the statute the federal government generally utilizes when it goes
after child prostitution rings. It is not really an ideal statute under which to
prosecute Spitzer as part of an adult prostitution ring. The government
would be limited to using only the “knowingly persuades” component of the
statute premised on the theory that the former governor persuaded the
prostitute to meet him at a hotel in Washington, D.C. for criminal sexual
activity.

The third statute, 18 U.S.C. § 1952 [Interstate and foreign travel or

transportation in aid of racketeering enterprises], would probably be the
more appropriate statute for the government to prosecute Spitzer:

“Whoever travels in interstate or foreign commerce or uses the mail or any

facility in interstate or foreign commerce, with intent to … otherwise
promote, manage, establish, carry on, or facilitate the promotion,
management, establishment, or carrying on, of any unlawful activity … shall
be fined under this title, imprisoned not more than 5 years, or both.”
But any federal prosecution of Spitzer by a Republican U.S. Justice
Department would raise serious political questions since the Justice
Department elected not to prosecute U.S. Senator David Vitter, R-La., who
was linked last year to a Washington, D.C. “prostitution ring” operated by
the “D.C. Madam” Deborah Jean Palfrey. Sen. Vitter telephone number
appeared on Palfrey’s client list and she has charged the lawmaker was
involved with prostitutes. He remains in office, un-prosecuted while Ms.
Palfrey faces federal prosecution.

There are serious differences in the law enforcement community about

whether prostitution-related crimes should be prosecuted. Writing in a
National Review article (Feb. 2006) entitled “There Are No Cracks in the
Broken Windows,” Los Angles Police Chief William Bratton, with George
Kelling, wrote: “We’ve argued for many years that when police pay
attention to minor offenses – such as prostitution, graffiti, aggressive
panhandling – they can reduce fear, strengthen communities, and prevent
serious crime.”

On the other hand, in a 2004 interview “Legalization of Prostitution” hosted

by Sakura Saunders on a radio station KDVS in Davis, California, former
Kansas City, Missouri, and San Jose, California police chief Joseph
McNamara said: “Try to stop it [prostitution] by criminal law has proven to
be an enormous failure that has led to corruption, it has led to violence, and
it certainly has not lessened prostitution but probably made it much less
profitable.”

“ … it’s an enormous misuse of scarce police resources where we have

women and children in danger from violent serial sex criminals and killers,
that is what we should be concentrating on, not how many arrests we can
make for prostitution.”

The Merriam-Webster Online Dictionary defines prostitution as “the act or

practice of engaging in promiscuous sexual relations especially for money.”
In a August 23, 1971 article entitled “Reflections On the Sad Profession,”
Time Magazine reported: “The whole subject of prostitution is full of
ambiguities and hypocrisies. Even to define the word is not so easy as it
might seem. We generally think of the transfer of money as the element that
makes prostitution a crime (although money plays a subtle part in all sorts of
sexual relationships). Yet in a number of states, as well as in Webster’s
newest dictionary, the definition of prostitution includes not only the
exchange of money but also the rather vague concept of promiscuity.

The Prostitutes’ Education Network wrote “Prostitution in The United States

– The Statistics” and posted it on their website on March 17, 2007. The
study revealed that “it is difficult to estimate the number of persons who
work, or have ever worked as prostitutes for many reasons including various
definitions of prostitution. National arrest figures [in the United States]
range over 100,000. The National Task Force on Prostitution suggests that
over one million people in the US have worked as prostitutes in the United
States, or about 1% of American women.”

John Potterat, former Director of STD/AIDS Programs for El Paso County

[Colorado] Department of Public Health & Environment, wrote in the May
1990 Journal of Sex Research (“Estimating the Prevalence and Career
Longevity of Prostitute Women”) that there were approximately 59,000
“full-time equivalent prostitutes” working annually in America during the
1980s.

These reports reflect that prostitution is an entrenched characteristic in the

American culture.

The following is a twelve-year look [from 1994 to 2005] at the arrest

statistics for prostitution in the United States produced by the FBI’s Uniform
Crime Reporting Program:

• 1994 - 97,600
• 1995 – 96,400
• 1996 - 97,700
• 1997 - 100,200
• 1998 - 92,600
• 1999 - 90, 900
• 2000 - 86,300
• 2001 - 79,400
• 2002 - 78,200
• 2003 - 73,800
• 2004 - 86,100
• 2005 – 84,891
The last six years indicate a significant downward trend in prostitution-
related arrests. The unspoken factor in these statistics is that they primarily
relate to “street level” prostitution – and most of the arrests were prostitutes
themselves. A relatively insignificant percentage involved “johns”
(customers of prostitutes) being arrested – and most the “johns” arrested
were caught in police “sting” operations using undercover agents as decoys.
This pattern of lack of law enforcement and prosecutorial interest in the
customers of the prostitution trade would surely create serious and legitimate
questions of fairness should the federal government unleash its awesome
prosecutorial forces against Eliot Spitzer.

Joseph R. Blaney is a communications professor at Illinois State University

and co-author of the book “The Clinton Scandals and the Politics of Image
Restoration.” Blaney recently told the Baltimore Sun (Mar. 12, 2008) that
former President Bill Clinton survived the Monica Lewinksy scandal by
making it seem “trivial” compared to other important matters like health care
and the Middle Ease peace process.

“When such a time came around that Clinton admitted that he was busted,”
Blaney said, “people were [already] convinced that this was strictly a private
matter.”

Spitzer could not “spin” his scandal. He faced the reality that there is a price,
both personally and professionally, a politician must pay for becoming a
“scandal.” The question is: how much? Spitzer has already paid an
enormous price: shame and embarrassment to his family, loss of a
governorship, and personal humiliation that will impact all future
professional endeavors. Yes, he is a wealthy man, but wealth is a lonely
companion in social isolation.

The New York Republican power structure took particular satisfaction in the
downfall of Eliot Spitzer. But the following Republican-related scandals
discussed by the Baltimore Sun should prompt these New York Republicans
to say “but for the Grace of God, there go I:”

• Rep. Mark Foley, R-Fla., “who promoted laws cracking down on

sexual predators, resigned his seat in 2006 after published accounts of
explicit e-mail and instant message exchanges with male
congressional pages who were minors.”
 • Sen. David Vitter, R-La., a social conservative who made “family
values” the hallmark of his political career, had to issue a public
apology after his telephone number appeared on “D.C. Madam”
Deborah Palfrey’s client list.
• Sen. Larry E. Craig, R-Idaho, pleaded guilty to a misdemeanor charge
“stemming from a gay-sex sting in a Minneapolis airport restroom.”
Sen. Craig reportedly used a wide toilet stance to signal to an
undercover officer that he wanted gay sex.
• Rep. Robert E. Bauman, R-Md., lost his House seat in 1980 following
his arrest for soliciting sex with a 16-year-old male prostitute and
disclosing that he was homosexual.
• Rep. Robert L. Livingston, Jr., R-La., the House Speaker-designate,
announced in December 1998 on the day President Clinton was
impeached that he was resigning from Congress because of an extra-
marital affairs disclosed by Hustler Magazine publisher Larry Flint.

S. Robert Lichter, president of the Center for Media and Public Affairs in
Washington, D.C., was quoted in the Baltimore Sun article as saying: "In
terms of survival, it's tougher for governors than senators, because you are
exercising an executive function. A governor is running the state and dealing
with the political opposition. You can't manage in that kind of uproar."

Spitzer really didn’t have a chance to manage the “uproar” that followed the
“Client 9” revelations. The political firestorm consumed him quickly, and
savagely. But is the use of the services of a prostitute such a violation of the
public trust that demands personal disgrace and political destruction of our
office-holders? There is no easy answer to the question, primarily because
the general public knows every little about the prostitution trade.

The following are little known facts about prostitution as published by

Prostitution ProCon.org.

1. Prostitution dates back to at least 2400 B.C.

2. Prostitution is illegal in the United States except for 11 rural counties
in Nevada.
3. On Nov. 2, 2004 two prostitution referendums went to the voters in
the U.S. with 63.51% of voters in Berkeley, California wanting to
keep prostitution a crime and 62.78% of voters in Churchill County,
Nevada wanting to keep prostitution legal.
 4. The same brothel in Nevada could cost an owner a $200 fee in Lander
County, a $150,000 fee in Nye County, and up to 6 months in jail
and/or $1,000 fine in Las Vegas.
5. Rhode Island has no laws prohibiting the owning of a brothel if the
owner doesn't receive the proceeds from prostitution.
6. In 1751, Holy Roman Empress Maria Theresa banned short dresses
and replaced waitresses with waiters to suppress prostitution.
7. Researchers have identified at least 25 types of prostitution by
location (street, brothel, etc.), solicitation (CB radio, newspaper ad,
etc.) and and/or sexual practice (bondage, lap dance, etc.).
8. In Sweden selling sex is legal, but buying sex is illegal.
9. In Japan prostitution is illegal, but selling non-coital sex acts is legal.
10. Prostitution is criminalized, legalized, and decriminalized in Australia
depending on the state.
11. In 2004 the number of U.S. prostitution-related arrests ranged from
California's 14,506 to Vermont's 3.
12. Proponents of legal prostitution have included Ann Landers, the
ACLU, and The Economist while opponents have included Ronald
Reagan, Hillary Clinton, and Susan B. Anthony.
13. Medieval canon lawyer Johannes Teutonicus, when defining
prostitution, suggested that a woman who had sex with more than
23,000 men should be classified as a prostitute, although 40 to 60
would also do.

These “facts” compel this column to revisit what we wrote in a February 3,

2008 Web Front Page article:

“Writing for the online political newsletter ‘Counterpunch,’ David Rosen in

January 2007 published a piece entitled ‘The Double Life of Prostitution in
America’ in which he pointed out that since its 1990 release, the movie
‘Pretty Woman’ (Julia Roberts as a streetwise hooker) has grossed more than
$465 million. Rosen observed that ‘prostitution is as American as apple pie.
It has been part of the social fabric since the earliest British settlers first
colonized the Atlantic Coast. While often tolerated as a necessary evil,
prostitution has rarely been regulated or accepted as an economic feature of
civic life. It is either constantly denounced by preachers, politicians and
others in authority or turned into a caricature, a glamorous indulgence of
commercial exchange. For the good of these women and the thousands of
others who are forced to sell their bodies, its time America got beyond this
false polarity.’
“The State of Nevada decriminalized prostitution in the early 1930s and
made it legal in 1967. Today there are thirty-six licensed bordellos in the
state that paid anywhere from $135,000 to $5 million for their license fees.
These legal bordellos generate an estimated $35 to $50 million in revenues
annually. David Rosen cited a 2005 University of Las Vegas study
conducted by Kate Housbeck and Barbara Brents found that in Southern
Nevada there were 20 adult shops and 30 strip clubs operating. In Clark
County alone (Las Vegas) there are approximately 100,000 registered ‘erotic
dancers.’

“These findings compelled the authors to observe that ‘Las Vegas is the
symbolic center of the sex industry in the United States.’

Following the Eliot Spitzer revelations, a Las Vegas brothel owner during a
cable news interview instructed out-of-state politicians in need of the
services of a prostitute to contact a brothel owner in that city. He said the
client will be met at the airport, driven to a hotel in a limo with darkened
windows, escorted privately to a room, and provided with a prostitute who
will service whatever sexual need he/she may have.

It is rather amazing that high profile politicians like Spitzer and David Vitter
would engage the illegal services of a “prostitution ring” when they could
have gotten the same services legally in Nevada. What is equally amazing is
that while the nation faces an economy on the brink of collapse, a
devastating war, and a litany of global threats, the Spitzer “scandal” would
so dominate the news business for two weeks.