Malum prohibitum: Why is the basic transactional part of prostitution illegal, anyway? - UPDATED

It's pretty much par for the course nowadays that more than a few authority figures love the outside-the-mainstream kinky stuff. I have about as much sympathy for Eliot Spitzer as I did for Larry Craig (i.e. none). Still, there is a looming and largely unasked question here: Why is the act of two consenting adults, in private, agreeing to exchange money for sex a crime? Above all, why is it a federal crime in this case? Glenn Greenwald explores this question in some depth, as does Digby. I also recommend Digby's post for its historical review of the Mann Act, the archaic 1910 federal law invoked to federally prosecute prostitution-related offenses.

In all seriousness, while I think Eliot Spitzer deserves to be hoisted upon his own petard (I never get tired of that phrase), doesn't the federal government have better things to do? Isn't there a war still going on or something?

Some discussion of the question (thanks to a quick and highly unscientific Google search) can be found here, here, here, here, here, and here. A common thread among arguments for keeping prostitution illegal involves legalization's supposed windfall for pimps and its further demeaning effect on women, not to mention an increase in human trafficking. I don't want to pick on this site too much, because I know they do a lot of good work, but their "10 Reasons for Not Legalizing Prostitution" do not hold much water. A more in-depth look at this page may come in a future post. There is absolutely no denying that human trafficking and the continued subjugation of women is a problem all over the world. These are terrible problems that deserve smart, effective soultions. Wiretapping a guy who spends $1K-5K per hour for the services of an "escort" is not one of those solutions. Going after the traffickers, educating the women most likely to be victimized by said traffickers, and working to alleviate the conditions that might cause women to fall prey to a trafficker are more likely to help. But they won't make for prurient headlines.

In a final note for the moment, I present further evidence regarding the death of irony (or at least one of its more pathetic gasps): Newsweek has commentary on the whole sordid affair from Heidi Fleiss.

UPDATE (3/13/08): Ditto everything Glenn Greenwald says here. Viva sarcasm!

A friendly reminder

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

Youngstown Sheet & Tube Co., et al v. Sawyer, 343 U.S. 579, 637-38 (1952, J. Jackson, concurring)

Today in good taste

Here are two bits of news that brightened my day, at least somewhat:

1. A former executive for the company that makes Enzyte has testified as to its total inefficacy, further noting as follows:

In some cases, company founder Steve Warshak required customers seeking a refund to get a notarized doctor's note stating the pill had no effect. "He said it was extremely unlikely someone would get anything notarized saying they had a small penis," testified James Teegarden Jr.

2. The Virginia General Assembly is considering a bill to outlaw "bumper nuts," those scrotum replicas you see hanging from the bumpers of trucks owned by people who don't have any friends. Urban Dictionary defines them as "prosthetic testicles used to adorn the oversized vehicles of those who think very highly of themselves." Lest you worry about the First Amendment implications, read on:

Objects that resemble human genitalia would be banned from display on vehicles, under a bill proposed Tuesday by Del. Lionell Spruill Sr.

The accessories, sometimes called "bumper nuts," often are found on the back of pickups.

"They're offensive to some folks," said Spruill, a Chesapeake Democrat. "It's OK to express yourself, but citizens have the right not to be subjected to something vulgar."

Remember, the legal standard for "obscenity" is if "when taken as a whole, [it] lacks serious literary, artistic, political, or scientific value." I don't particularly support the bill, mostly on knee-jerk libertarian grounds, but I also don't really worry that banning truck testicles is merely a gateway to substantially greater government control of speech.

I also don't think it's speech. It's fake nuts hanging from a truck.

Thank you, Senator Craig

Just when I thought all the news this week was going to be dour political crap, here comes yet another not-so-shockingly pervy Republican to dominate the headlines (but, really, he's not gay. I honestly don't care if he is or not.)

To be clear: I feel no sympathy for this guy's plight at all. People who make a career out of trying to control other people's lives behind closed doors generally don't get my sympathy. But, really, what exactly did he do that was illegal? (h/t to Volkh Conspiracy)

It's hard to work up much sympathy for Sen. Larry Craig (R-Idaho). He had a perfect legislative score from traditional-values groups, a zero rating from gay civil-rights groups, supported the Federal Marriage Amendment, and refused even to commit to non-discrimination on the basis of sexual orientation in hiring for his own Senate staff. But what exactly was criminal about his conduct in that Minneapolis airport bathroom?

From the arrest report, here's what Craig allegedly did: (1) put a duffel bag at the front of his stall; (2) peered through a crack into an adjoining stall; (3) tapped his foot; (4) moved his shoe over until it touched an officer's; and (4) ran his fingers along the underside of the stall divider. That's it.

Given the long history of police fabrication of evidence and entrapment of gay men in these sting operations, there should be no presumption that the officer's version of events is correct. But assuming for the sake of argument that Craig did everything the officer alleged, how was it the basis for a criminal charge that could get him a $1,000 fine and/or ten days in jail?

I don't get it--what exactly was the crime here? Sure it was lacking in panache (I think that word fits here), but how exactly is that a crime? If he'd run something other than his fingers along the stall divider, sure, but give me a break. The officer should have said thanks but no thanks and marveled at how effective his shoes must be at getting dudes' attention. No harm done.

Honestly, my libertarian concerns here even seem to trump my Schadenfreude over the poor Senator.

Anyway, thanks for taking my mind off things for a bit.

UPDATE - Lawyers, Guns & Money has some good commentary & links.

UPDATE II - From Whiskey Fire, sweet, sweet hypocrisy. And insanity.

At least she's trying something - UPDATED

So Cindy Sheehan has threatened to run for Nancy Pelosi's House seat if she doesn't push impeachment against Dubya, and now she is starting to make good on parts of her threat by coming to Washington. For my part, I say bravo. I may not agree with every single thing Sheehan has done, but she is doing something, which is more than most can say.

And what sort of response does she get? Not at all surprisingly, the press is quite lukewarm to the idea of impeachment, as are many Democrats, and nobody really seems to understand the situation (although they are more than happy to lecture the rest of us.) USA Today's DeWayne Wickham offers a primer on "the politics of impeachment" (h/t to War Room):

Like Pelosi — and just about every other Democrat in the House of Representatives — Sheehan wants Bush to withdraw American forces from the sectarian quagmire that rages in Iraq. But unlike Pelosi, Sheehan doesn't seem to understand the politics of impeachment.

While Democrats have the simple majority that is needed to adopt articles of impeachment against Bush, assuming the vast majority of House Democrats would support such a move, the 49 Senate Democrats and the two independents who are aligned with them fall far short of the 67 votes needed in that body to convict Bush of an impeachable offense. In fact, not a single Republican senator has shown any willingness to support a move to impeach Bush, the GOP's titular head.

If Pelosi did push the House to impeach the president, Congress would plunge into an even deeper partisan divide and there would be little hope of a significant withdrawal of U.S. troops from Iraq before the president's fate is decided.

First of all, there have been a mere two successful impeachments in U.S. history (Nixon doesn't count), and no president has ever been removed from office after an impeachment. To speak of understanding the "politics of impeachment" is to ignore the almost total lack of precedent in this endeavor. Wickham acknowledges that there are probably enough votes in the House to impeach Bush (and/or Cheney), but states (correctly) that there are not enough votes for the 2/3 majority needed in the Senate to actually remove him/them from office. Moral of the story: if you can't win, don't try.

This of course runs counter to just about anything one would teach a child, so why is it okay for American politics? The Repubs had to have known in 1998 that there would not be enough votes in the Senate to remove Clinton from office, but they did it anyway. If lying about a blow job and trying to cover up lying about a blow job were enough to merit impeachment less than nine years ago, even without the likelihood of a conviction, why is impeachment off the table now? The most difficult part for the House Judiciary Committee ought to be which scandal to choose. Then, make the Repubs explain why these guys shouldn't be impeached and removed.

But is the Clinton impeachment debacle really something we should want to repeat? Wickham goes on:

The Republican effort to impeach President Clinton dragged on for four months from October 1998 to February 1999 — a time during which much of Congress' other business virtually came to a halt.

So why should Pelosi lead House Democrats into that political bog?

If Sheehan's goal is to end the war, and not just drag Bush into an impeachment process that he would likely win, she should set her sights on the House and Senate Republicans who are thwarting the efforts of Democrats to enact legislation that would force the president to accept a timetable for withdrawing U.S. forces from Iraq.

If it's an election fight she wants, Sheehan and her supporters should take on those Republicans. But, instead, Sheehan threatens to rain friendly fire down upon Pelosi, a leader of the anti-war forces on Capitol Hill.

That doesn't make sense.

Yes, it does make sense, and I will tell you why in a second. But first of all, what other business will be neglected during an impeachment drive? As a corollary to that question, is Sheehan's main goal to end the war? I haven't asked her, and I don't think Wickham has either. This is bigger than the Iraq occupation (not so much "war") nowadays. It is becoming a question about what sort of nation we want to be, and whether we really want the sorts of freedoms and liberties we have supposedly stood for to remain. Congress is tasked, in part, with acting as a check on the power of the executive, so what possible business could be more important than setting the balance of powers straight? Wickham continues:

Impeachment should be treated as a serious matter — and not a means of settling political scores. It shouldn't be used to resolve a policy dispute. As misguided as I think the president was in ordering an invasion of Iraq — and as wrong as I think he is to keep U.S. troops immersed in Iraq's civil war — I don't think his bad acts rise to the level of an impeachable offense.

The irony of using language about "settling political scores" notwithstanding (unless you really believe the Clinton impeachment was about a love of truth and honesty over all), the very fabric of our democracy, as shown through the transparency of our government and the accountability of our leaders, is much, much more than a "policy dispute." This administration has gone farther perhaps than ever before in asserting near-absolute power without oversight, and the people have responded quite vehemently against such moves.

So why does it make sense to put the pressure on Pelosi? Because Bush is the scorpion in the fable. He is accountable for his actions (at least morally), but he will never change. His administration has shown, time and again, that they will act in the interests of themselves and their cronies, and they will piss on your boots and tell you it is raining lemonade for as long as they are allowed to do so. Nothing is going to change that. Pelosi and the Democrats have been given a chance to do something, and if they cannot do it, why even have an opposition party? The Democrats have controlled Congress for six months now, and if they can't get the job done, maybe someone else can. If booting out the Democratic leadership means unrestrained Repub rule for the foreseeable future, well, that is the bed America has made. The Republicans are not going to change--in their minds, 2000 and 2004 taught them that Americans love showers of lemonade. Whether the Repubs shape the future of this country or simply fade away (like they so richly deserve to do) is in the hands of the people America hired to stop them.

So, Mr. Wickham, I suppose you would have us trying to unseat more Republicans in the next election, or staging more protests, or something. In other words, you would have us fiddle while the city burns. I don't believe America voted the way they did in 2006 so that changes could be made in 2008. And I do not believe that Congress can get into much of a "deeper partisan divide" than they already are, so what are the Democrats waiting for?

I sincerely hope that the big question in 2008 is not why members of Congress chose to waste their time on an impeachment effort, but why so many other members instead chose to allow our democracy to slip away.

UPDATE I - A very good summary of what I'm worried about can be found here.

As if being in prison weren't bad enough

Check this out:

Red-faced officials at the scandal-racked Texas Youth Commission on Thursday canceled the release on parole of more than 150 teenage offenders after discovering that many had served little time on their sentences for serious violent crimes such as murder, aggravated sexual assault, aggravated robbery and aggravated kidnapping.

They also announced a top-to-bottom review of their parole criteria as a result.

While that must really suck on a personal level for the 150 kids who won't be getting out of prison after all, it must really suck for TYC, who has been having a bad run of late anyway. If it weren't so disturbing, it might be funny:

One youth on the recent list had been sentenced to 40 years in the knife slaying of a classmate, who was stabbed 15 times. He had served less than three before the agency recommended his release.

Another, serving time for molesting six children, was recommended for release even though he had numerous write-ups in youth prisons for indecent exposure and for possessing a weapon. One was a sex offender who assaulted a Youth Commission employee about a year earlier.

Two of those recommended for parole were escapees who are still at large.

That is correct--TYC recommended parole of two individuals who had escaped and are still at large. If you ask me (I know you didn't), the Legislature (whenever they're around again) should either eliminate the entire agency and start over, or bring in someone to boost TYC's motivation. Just a thought.

Never thought I'd say this...

...but Ron Paul kicks ass. I don't know if my political views have changed, his have changed, or it's just that the world has changed so much that he no longer seems like such a nutbar. He sure does introduce and sponsor interesting legislation--some I agree with, some I don't, some that is certainly interesting, and some that just seems loopy. I've definitely become more libertarian over time (and not in a Republican-embarrassed-by-Bush sort of way).

Read about Paul's reading list for Rudy Giuliani to back up his foreign policy statements--how sad is it that it is novel for a political figure to actually offer support for his assertions?

Remember to retrieve your fluids!

I'm a reasonably law-n-order-type guy, but there is something creepily Orwellian (and Gattacan) about this, via Volokh Conspiracy:

Facts: Rape suspect walking on a street spits on the sidewalk. An investigator is following the suspect, and he collects the spit; a DNA test proves a match. Holding: No Fourth Amendment violation. Analysis:

[A]lthough the defendant had a reasonable expectation of privacy in his saliva (and other bodily fluids)...when he expectorated on to a public street and did not retrieve the fluid, he voluntarily abandoned that protection; he assumed the risk of the public witnessing his action and thereafter taking possession of his bodily fluids.

(Emphasis added)

As one commenter to the post notes:

I wonder about the scenario where the cops take a suspect down to the station, load him up with coffee and donuts, and wait for him to take a crap in the special DNA-collecting toilet.

I suppose the basic argument, once again, is that if you haven't done anything wrong and/or have nothing to hide, what is the harm in the police being able to scoop up your saliva, et al? I worry (not entirely facetiously) about the coffee and donuts scenario presented above, but also about, uh, let's call them "false positives." Yes, you may call me paranoid, but what if someone somehow gets someone else's genetic materials (and the possibilities here are endless, ranging from a good spy story to a porn movie plot, ask me about my screenplays) and plants them at the scene of a crime? Will we someday have to submit a spit/blood/mucus/urine/stool/hair follicle/s***n sample to get a driver's license or passport?

Given that we now inhabit a country where the Republican candidates for president don't quite seem to get that Jack Bauer is a fictional character, and the CSI's are all huge hits, is my scenario that far-fetched?

If it turns out that the government will require me to submit a s***n sample, may I at least make a request as to who collects it?

Perhaps there is a simpler moral here: it is rude to spit, urinate, vomit, or otherwise expel genetic material in public, and now you really don't want to do it (or at least use a trash can, you know, for plausible deniability).

Couldn't the free market take care of this even better?

I had to read this several times to really believe it. Texas State Sen. Dan Patrick has introduced a bill that would basically authorize the state to pay women to give their babies up for adoption:

Under Patrick's SB 1567, AKA the Texas Baby Purchasing Act of 2007, women would qualify for a $500 payment from the state within 60 days of signing away all parental rights to their newborn children.

The full text is available here.

Lest you wonder if the Sen. Patrick is asking the state to engage in an illegal form of baby brokering, he has covered all the bases. The bill provides: "Section 25.08, Penal Code, does not apply to the grant or acceptance of money under this section."

Penal Code Section 25.08 provides as follows:

§ 25.08. SALE OR PURCHASE OF CHILD.
(a) A person commits an offense if he:

(1) possesses a child younger than 18 years of age or has the custody, conservatorship, or guardianship of a child younger than 18 years of age, whether or not he has actual possession of the child, and he offers to accept, agrees to accept,
or accepts a thing of value for the delivery of the child to another or for the possession of the child by another for purposes of adoption; or
(2) offers to give, agrees to give, or gives a thing of value to another for acquiring or maintaining the possession of a child for the purpose of adoption.

(b) It is an exception to the application of this section that the thing of value is:

(1) a fee or reimbursement paid to a child-placing agency as authorized by law;
(2) a fee paid to an attorney, social worker, mental health professional, or physician for services rendered in the usual course of legal or medical practice or in providing adoption counseling;
(3) a reimbursement of legal or medical expenses incurred by a person for the benefit of the child; or
(4) a necessary pregnancy-related expense paid by a child-placing agency for the benefit of the child's parent during the pregnancy or after the birth of the child as permitted by the minimum standards for child-placing agencies and Department of Protective and Regulatory Services rules.

(c) An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor commits the offense with intent to commit an offense under Section 43.25.

Now I have no idea how much of a shortage there is for adoptable children (although here are some statistics), but there is something downright creepy about this. Leaving aside the issue of abortion as a possible alternative to the baby being, uh, placed through the Adoption Incentive Program, how is this different from selling one's baby into adoption in a way that does violate the above-quote Penal Code section? Well, the answer is because Sen. Patrick (and possibly the Texas Legislature) says so. Here's another question: how does this fit in with Republicans' general preference for privatization? Republicans want to limit spending, downsize the government, and turn as many functions over to the private sector as possible (at least, you say so in your 2004 party platform, pp. 22-23). I mean, really, in for a penny, in for a pound, right? How about we create baby rescue societies? It has worked as a means of relieving the burden on our publicly-funded animal shelters. Those tend to be nonprofit ventures, though, providing no incentives for providing the merchandise to the organization (in this case, dogs, but it could be anything, really).

Of course, you want to make sure an adequate market exists for all the new babies you will be acquiring. One of the most important rules of business is to never acquire inventory you don't know you can move. Maybe it is time to loosen some of those restrictions on who may adopt. Heck, if we get lucky, maybe the state of Texas will be collecting perpetual royalties from its very own Truman Show!

On the other hand, I may be full of shit and SB 1567 may be a terrible idea. Besides, who wants to run the risk that the biggest cutomer might be this guy?

Test your politics!

Confirming what I think I already knew, here's how I scored on the World's Smallest Political Quiz:



I guess that makes me way liberal on personal issues and kinda conservative on economic ones. I still don't get how a lot of "conservative," "anti-big government" people (no, I won't name names) can also approve of that same government poking its red-tape encrusted head into everyone's bedrooms. Anyway, that's all for today.

Let's Review the Bill of Rights, Shall We?

Think Progress » Gonzales: ‘There Is No Express Grant of Habeas Corpus In The Constitution’

Chilling words from Alberto Gonzales, and some props earned by Arlen Specter:

Yesterday, during Senate Judiciary Committee hearings, Attorney General Alberto Gonzales claimed there is no express right to habeas corpus in the U.S. Constitution. Gonzales was debating Sen. Arlen Specter (R-PA) about whether the Supreme Court’s ruling on Guantanamo detainees last year cited the
constitutional right to habeas corpus. Gonzales claimed the Court did not cite such a right, then added, “There is no express grant of habeas in the Constitution.”
Specter pushed back. “Wait a minute. The constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?” Specter told Gonzales, “You may be treading on your interdiction and violating common sense, Mr. Attorney General.”

As Article I, Section 9, Clause 2 of the Contitution says: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

I tend to prefer reading the language of the Constitution as plainly as possible. This isn't like the Bible, which has gone through so many translations and interpretations that anyone cann read anything into it. We have the Constitution with the exact language the Founding Fathers used in 1787. All I see here is a prohibition against government suspension of habeas corpus--how can the government be expressly prohibited from suspending a right if that right does not actually exist? Is this really how Mr. Gonzales sees the Constitution: that the People have no express rights unless such rights are specifically granted to them by the Constitution?

It may be instructive to take another look at the Bill of Rights--all emphases and bracketed additions are mine.

• Article I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
  
• Article II. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed [by the government].
  
• Article III. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
  
• Article IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [by the government], and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  
• Article V. No person shall be held to answer for a capital, or otherwise infamous crime [by the government], unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  
• Article VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
  
• Article VII. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
  
• Article VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted [by the government].
  
• Article IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
  
• Article X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

See where I'm going with this? The Bill of Rights does not grant rights to the People. It withholds rights from the government.

Barry Goldwater

Since I mentioned him earlier, I thought I'd link to this. This guy has always fascinated me.

A stickler for the Constitution, Mr. Goldwater refused to join the Republicans of the New Right during the 1980s when they began to press for legislation that would limit the authority of the federal courts to curb organized prayer in public schools or to order busing for school integration. He opposed busing and he backed prayer in schools, Mr. Goldwater said, but he thought it a dangerous breach of the separation of powers for Congress to be telling the courts what to do.

Mr. Goldwater's political philosophy also included a strong military posture, a deep mistrust of the Soviet Union and a conviction that increasing the scope of government programs was not the way to solve social problems.

In all, he served 30 years in the Senate, but he was out of office for four years after losing his bid for the presidency, and he was in a political limbo for almost 10 years after that defeat. He reemerged during the Watergate crisis of the early 1970s.

Then, the bluntness and candor that had so often damaged Mr. Goldwater's presidential campaign a decade earlier and his outspoken and harsh criticism of Nixon's failure to deal with the growing Watergate scandal were among the vital ingredients of his political renaissance.

The president, he contended, had shown "a tendency to dibble and dabble and argue on very nebulous grounds like executive privilege and confidentiality when all the American people wanted to know was the truth."