Lawrence vs. Texas and Sex Workers’ Rights

It’s important for sex workers to be educated about the Lawrence vs. Texas U.S. Supreme Court ruling because this ruling can be an important step in the decriminalization of consensual sex acts for payment and this ruling is a resource you can refer to in court if arrested for engaging in private consensual sex acts.  In Lawrence vs. Texas, the U.S. Supreme Court ruled that Texas laws prohibiting homosexual sex acts were unconstitutional on the grounds that criminalizing private consensual sex acts between adults is unconstitutional.   Though the Supreme Court opinion (linked to below) addressed that Lawrence vs. Texas was not a prostitution case, I couldn’t find anywhere in the Supreme Court written opinion where it said that this ruling could not be applied to prostitution.

Though Lawrence vs. Texas was about sex acts between members of the same sex rather than sex acts in exchange for payment, the premise that arresting adults for engaging in private consensual sex acts can be applied to sex work.  I encourage people who are arrested for engaging in private consensual adult sexual behavior in the U.S. to appeal on the grounds that such laws are unconstitutional on the basis of Lawrence vs. Texas.  Even if people don’t succeed every time, it’s essential to keep keep challenging these laws and not give up on the path toward ultimately decriminalizing prostitution.  Here’s a link to the Lawrence vs. Texas Supreme Court ruling in writing:

http://www.supremecourtus.gov/opinions/02pdf/02-102.pdf

6 Responses

  1. That’s a really interesting approach to challenging prostitution laws in the US. I don’t think such an argument would hold up in the case of street prostitution (where it could be argued that the behavior is not entirely private and that there are competing public interests), but I think that defense could certainly be tried for indoor prostitution. I’m sure the prosecution would have any number of counterarguments, probably along the lines that the commercial nature of the transaction makes it different from simple consensual sex, or they may even try the abolitionist argument that the an act of prostitution is always non-consensual. But which side the courts might take is an open question and worth a try.

    I think whoever ended up in a situation where they wanted to fight a prosecution using this argument would need solid legal backing, from somebody like the ACLU, for example.

  2. Thank you for sharing your thoughts, iamcuriousblue, but I think the argument could hold up for street prostitution if street workers engage in private sexual acts. Just because street workers work the streets to get clients doesn’t mean that they “do the acts” out in the public. I think that street workers typically go to private places with clients. Personally, I’ve never seen any street workers actually out there on public sidewalks engaging in sex acts or anything like that. I’m not saying that could never happen, but I doubt that’s typical.

  3. Where it gets tricky with street prostitution is the very public nature of the solicitation and the transaction, and a lot of the same arguments about open-air drug markets come up. So the counterargument that street prostitution has a community impact beyond just the nature of the private sex act is inevitable. Similarly, Lawrence v Kansas hasn’t stopped even blatantly homophobic sting operations for what might very broadly be called “public sex” (even if the sex itself is probably done in a semi-private space), as the Larry Craig case shows.

    Actually, at least in terms of law enforcement, I think there are a lot of parallels between prostitution and anonymous sex, and a study of cases involving “cruising” would be pretty instructive for potential legal strategies for regarding prostitution.

  4. Iamcuriousblue, I agree with you that there are “grey areas” that are up to interpretation, but hopefully, the courts will side with our cause. I think part of the problem could be that many people just don’t know about Lawrence vs. Texas and how they can use this ruling to appeal arrests for private consensual adult sexual behavior, which is one of the reasons why I find it so important to spread word about this case.

  5. […] different bloggers and a dedicated community of commenters. Just this week, there’s posts on the pros and cons of using a “right to sexual privacy” defense, a la Lawrence v. Texas, against prostitution charges, a deeply personal story about what happens when you forget who your […]

  6. The prostitution laws are almost certainly unconstitutional, and the Lawrence case, among others, creates the precedents to support that theory. Simply put, since the state cannot make consensual sex acts between non-married adult persons a crime, the adding of the element of some kind of payment does not change that fact from a constitutional law perspective.

    The only answer the state (and all prostitution laws are state laws) can make under constitutional law is to prove that it has a “compelling state interest” in having this law (which is a high standard to meet). However, there really is no compelling state interest in this matter. The closest they can come is crime and health issues. But the crimes involved all revolve around the fact that prostitution is illegal and most of the criminal activity is against the sex workers. Crimes against them would drop considerably if prostitution weren’t illegal. And then we add in the claim, which I haven’t been able to verify yet, that 24% of women arrested for prostitution are raped by the police, and the crime interest disappears. Which leaves health, except that as we all know, the CDC’s studies show that one is much less likely to get an STD from a sex worker than from someone you pick up in a bar.

    The trick here is that in the constitutional law game you never start down that road in court unless you think you have a good chance of winning in the Supreme Court since losing creates precedents against your position and those are hard to get rid of. And there is no doubt that the current Supreme Court is not going to declare prostitution laws unconstitutional.

    However, the same arguments can be made in state court under state constitutions. So if you find a good state constitution, and there are some good ones around, and a liberal state supreme court, you might well pull off a few wins at the state level, which would help on the day you make a try at the US Supreme Court.

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