Historic Prostitution Legal Challenge Underway

John Sanford

LOS ANGELES — A lawsuit against the state of California's outdated law that criminalizes paid sexual relations among consenting adults will be heard in federal court in Oakland, Calif., on Aug. 7, the civil rights group Erotic Service Providers Legal, Education and Research Project (ESPLERP) announced today.

The lawsuit challenging the anti-prostitution statute, Section 647(b) of the California Penal Code, on Constitutional grounds was filed by the non-profit in February on behalf of several members of the Erotic Service Providers Union and a client.

Defendants being sued include state attorney general Kamala Harris, who campaigned against a ballot measure to decriminalize prostitution in San Francisco while she was district attorney there, and the current district attorneys of San Francisco, Alameda, Marin, and Sonoma counties, who are among the local officials who file criminal charges against consenting adults for prostitution.

In 2012, a United Nations panel recommended that all countries work toward decriminalization of sex work and ending the unjust application of non-criminal laws and regulations against sex workers. Prostitution is already legal or decriminalized in countries such as Germany, New Zealand, Switzerland, and Thailand among others, but with the exception of a few counties in Nevada where it is heavily restricted, remains criminalized in the United States.

The U.S. has traditionally been more authoritarian on sexual matters than most developed countries. As public attitudes have grown more libertarian however, those who want to keep "the world's oldest profession" criminalized have attempted to conflate consensual prostitution with the sensationalist issue of human trafficking.
 
"There are people victimized on a daily basis, under duress, beaten," San Francisco district attorney and defendant George Gascon told ABC News in an interview about the lawsuit.

Gascon, who also opposed the citizens' initiative to decriminalize prostitution in San Francisco during his tenure as the city's police chief in 2008, was presumably not talking about the ordinary prostitutes and their clients who are routinely victimized by police and prosecutors like himself. However the D.A. implicitly admitted that the law often fails to distinguish between prostitution and coerced sex, asking, "How do we differentiate one from the other?" Unfortunately ABC's Carolyn Tyler did not ask the logical follow-up question, "How do police tell the difference between farm workers, factory workers, and people in other occupations who are being forced to work against their will, and workers in those occupations who, like the vast majority of sex workers, are doing their jobs voluntarily?"
 
The irony of prostitutes being portrayed as victims of traffickers by those who nevertheless want them treated as criminals is not lost on Maxine Doogan, the president of ESPLERP who is also one of the lawsuit's plaintiffs. "We are used to fighting an uphill battle against absurd prejudices and roadblocks," she said. "After we successfully raised $30,000 last year to fund the first stages of this lawsuit, the crowdfunding site we were using, GoFundMe, kicked us off without explanation. I am still waiting for the return of $500 remaining in our account that they owe us. But we are moving forward and aren't going to letthis hold us back."
 
A communique from Louis H. Sirkin, the lead attorney for the plaintiffs and a well-known First Amendment jurist who has argued before the Supreme Court, lists the following upcoming dates in the case's court calendar:
 
May 8 - Deadline for defendants to file their motion to dismiss the lawsuit
June 8 - Deadline for plaintiffs to respond to the motion to dismiss
June 23 - Deadline for defendants to reply
August 7 - Hearing on motion to dismiss (9 a.m. in Courtroom #5, 1301 Clay Street, Oakland, 2nd floor, Judge Jeffrey S. White)
 
Taking nothing for granted, Doogan expects ESPLERP's lawsuit to be dismissed, and is already raising money for an appeal. "If the judge grants the motion to dismiss, we get to immediately appeal to the 9th Circuit Court of Appeals. If we proceed to trial and the judge rules against us, we will also appeal," she said.
 
A second crowdfunding campaign is now underway to raise an additional $30,000 this year to cover further legal fees. Supporters can contribute to this historic effort to decriminalize prostitution in California here.

Starchild, a sex worker, activist, and outreach director of the Libertarian Party of San Francisco, which supports the lawsuit, called it not only an urgent matter of human rights, but also a concern for taxpayers who are being forced to fund the prosecution and incarceration of consenting adults. "Your body, your time, your money belong to you, not to the State," he said. "Even if no one you know provides or uses sexual services — and you may well know someone who does but is closeted -- this injustice should concern you as a waste of taxpayer money that contributes to the overcrowding of jails, leads to profiling, and takes police resources away from going after those who commit real crimes like theft or violence."
 
The ESPLERP invites anyone being charged in California in connection with the 647(b) statute to use the legal brief filed in this case in their defense. It can be found online here. Victims of misguided law enforcement are also encouraged to contact ESPLERP for support and assistance.