A New Lawsuit Aims to Decriminalize Prostitution in California
Advocates hope the case will have ripple effects in several western states.
At noon local time on Wednesday, the Erotic Service Providers Legal, Education, and Research Project (ESPLERP) filed a lawsuit against the attorney general of the state of California, as well as several district attorneys, in a case they say has the potential to decriminalize prostitution in a handful of Western states.
The plaintiffs allege that their constitutional rights have been violated by enforcement of California's prostitution law.
All of the plaintiffs are listed anonymously, using initials and a pseudonym. Three are former prostitutes who hope to work as prostitutes again in the Northern District of California, but fear arrest and prosecution. The fourth plaintiff, John Doe, is a disabled man who wishes to hire prostitutes in the Northern District of California. Together, they claim that enforcement of prostitution laws violates their constitutional rights to privacy, free speech, substantive due process right to earn a living, and freedom of association. They are asking for a declaration that California's prostitution statute is unconstitutional, an order prohibiting the defendants from enforcing the prostitution statute, and attorney fees.
The plaintiffs started working on the suit in 2008, when Proposition K—which would have decriminalized prostitution in San Francisco—failed to pass. In the aftermath of that setback, Maxine Doogan, ESPLERP's president, wasn't sure what to try next. Margot St. James, who led COYOTE (Call Off Your Old Tired Ethics) in filing the court case that forced the decriminalization of prostitution in Rhode Island in 1980, told Doogan it would take a legal threat to overturn California's prostitution laws.
ESPLERP coalesced in 2010, became a 501(c)3 nonprofit in 2012, and begun fundraising. The group raised over $30,000 on GoFundMe, and is currently crowdfunding more money for the court case, which attorney Gill Sperlein says could go on for as long as five years.
Now that the case has been filed, the state could make a motion to dismiss, or it could go to trial. Sperlein says the case will inevitably be contested until it reaches the US Ninth Circuit Court of Appeals. While that decision would ostensibly be tailored to California's prostitution law, it could be applied to other states' prostitution statutes through future cases under the Ninth Circuit's jurisdiction, which also includes Alaska, Montana, Idaho, Hawaii, Nevada, Oregon, and Washington state.
This California case is different than COYOTE's, which argued that Rhode Island's prostitution law was enforced in a gender-biased way, according to Doogan.
"Our case is being litigated because [California's prostitution law] discriminates against our free speech, our right to negotiate for our own labor and our own safe work conditions, our right to associate with each other, our right to equal protection under the law," she says.
According to the complaint, commercial sexual activity was integral to California's development, but was criminalized in 1961 for reasons of morality. While California's prostitution statute defines prostitution as physical contact, California courts have ruled that people can also be charged with prostitution for their words alone.
"There's a lot of benefit to the public to having these types of laws invalidated and to have our class of worker and customers, family members, and larger community enfranchised under the equal protection laws," Doogan tells me. "The really negative social stigma that is put on people who are prostitutes or people who are viewed as prostitutes and our customers extends to other people that are sexual who are seen as outside the bounds of what is OK. That's why you see rape victims not be taken seriously, they're made to be the right kind of rape victim in order to have their cases adjudicated, in order to have access to the California State Victims of Violent Crimes Compensation Fund, for example."
At the heart of the argument, according to Sperlein, the plaintiffs' attorney, are recent Supreme Court rulings on substantive due process. In Lawrence v. Texas, which overturned a law criminalizing anal sex in 2003, Sperlein says the justices used "language that was really extraordinary, the kind of language you never hear from the Supreme Court, which was that [criminalizing anal sex] was wrong, it was wrong when it was originally ruled on, it is wrong now, it's always been wrong. In that case they said that the government could not use morality as a basis for regulating private consensual sexual activity."
Sperlein is representing ESPLERP along with civil rights attorneys Louis Sirkin and Brian O'Connor. When asked why he took the case on, Sperlein told me, "I feel like sex workers are ostracized not only socially, but also under the law. To challenge laws that deny men and women sex workers protection of the law by criminalizing activity that is harmless is a pretty noble thing to do."
Though the case may seem like a long shot, Jessica Emerson, an Equal Justice Works Fellow and staff attorney with the Women's Law Center of Maryland, told VICE, "I think the argument that solicitation laws violate free speech is a strong one—if a sex act does not have to occur for a prostitution arrest to be made, then you are, essentially, criminalizing speech. And with a lead attorney of Mr. Sirkin's caliber on the case, I'd say the plaintiffs certainly have a shot at challenging the legality of California's laws!"
The complaint alleges that the plaintiffs have been severely and irreparably injured by the prostitution law, which has caused them "severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma," along with the deprivation of their constitutional rights. Their only prayer for relief, they claim, is that the court find the prostitution law unconstitutional and prohibit the defendants from enforcing it.
"I have confidence that we'll prevail in the court," Doogan says, "as we've seen other minority people get their rights sustained in the court system."
Tara Burns is the author of Whore Diaries: My First Two Weeks as an Escort and Whore Diaries II: Adventures in Independent Escorting. Follow her on Twitter.