If I were a degenerate drinking man, I would open this article by saying “Hold my beer while I sign my own death warrant.” Since I am not, I will have to settle for saying, “Hold my hat while I sign my own death warrant.” That being said, all the emotional, sanctimonious hypocrites can have a seat in the hypocrite pew. You’ve been warned.
Yes, you’ve read the title right. After two weeks of agonizing, I have concluded that the United States government and the states have unintentionally legalized pimping and prostitution because they have engaged in invidious discrimination against pimps and prostitutes. Now, before all you would-be-Godfathers go out and start new business ventures, read the rest of this article.
The Fourteenth Amendment’s Equal Protection Clause prohibits the federal government and state governments from engaging in invidious discrimination – class-based discrimination based on an irrelevant characteristic. We all know the most common ones: race, gender, age, etc. There is a forgotten piece of the invidious discrimination doctrine though.
In Skinner v. Oklahoma, 316 U.S. 535 (1942), the Supreme Court confronted Oklahoma’s Habitual Criminal Sterilization Act, which allowed state courts to impose a sentence of compulsory sterilization on individuals who had incurred three or more convictions for felonies involving moral turpitude. The Act, however, created an exception for embezzlement and other white-collar crimes. The petitioner, Jack T. Skinner, was convicted of chicken stealing and two counts of armed robbery over the course of ten years, leading Oklahoma to seek to sterilize him. Among other grounds, he challenged his sterilization on equal protection grounds under the Fourteenth Amendment.
The Supreme Court overturned Skinner’s sentence to compulsory sterilization because it found that embezzlement was intrinsically the same type of offense that armed robbery and chicken stealing were: “When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.” Thus, Skinner requires strict scrutiny of a systemic application of the law that treats the same conduct differently.
In other words, when persons engaged in virtually identical conduct and the government chooses to seek the punishment of just one and not both, the government must prove a compelling state interest narrowly tailored to justify such an invidious discrimination.
The federal government doesn’t like pimping or prostitution. The state governments don’t either. Neither do you. In an emotional effort to make sure that society catches and punishes as many pimps and prostitutes as harshly as possible, Congress and the state legislatures have defined the acts that constitute prostitution and pimping as broad as possible.
Here’s the Ninth Circuit’s definition of the activity that classifies as prostitution under federal law: “offering or agreeing to perform any unlawful sexual act for hire” and “offering of the body to indiscriminate lewdness for hire.”
To be convicted as a pimp under federal law, you must knowingly persuade, induce, entice, or coerce an individual to travel in interstate commerce to engage in prostitution or in any sexual activity for which you can be charged with a crime.
In other words, if you engage in sexual activity for money, you’re a prostitute. If you call someone, email them, or text them to have them engage in sexual activity for money, you’re a pimp.
Thus, governments have some explaining to do on why they have never charged the owners and operators of pornographic film companies or pornographic talent agents.
What is pornography? It is the commercialization of sexual intercourse. Pornographic film companies persuade, induce, and entice individuals to travel in interstate commerce to engage in sexual intercourse for money. In other words, they are hiring professional prostitutes to engage in sexual intercourse with each other for money and broadcasting prostitution within the definition of federal law to anyone who wishes to view it.
Neither the United States nor state governments except California have recognized, either through judicial decision or statute, that pornography is legal. United States courts, however, enforce pornography companies’ contracts and their trademark rights routinely.
Why has the United States government failed to bring a single prostitution or pimping charge against a pornographic film company for recruiting pornographic actors and actresses or the actors and actresses for prostitution? Why has no United States court held that the act of creating a professional pornographic film requires prostitution?
What is the difference between a street-level pimp and prostitute and these companies and actors and actresses? The only difference is that the companies and the so-called actors and actresses have cameras to film their prostitution while the street level operators don’t. The street-level operators face significant jail time – up to 20 years for a federal offense. The professional pimps and prostitutes are celebrities and protected businesses.
According to the U.S. Supreme Court, the line that the United States has drawn between pimps or prostitutes and pornographic companies and “actors and actresses” is the functional equivalent of racial or gender discrimination: it is invidious discrimination. That being said, federal and state statutes still prohibit pimping and prostitution, and any person who tries to do so will run the risk of significant jail time.
Making this argument to a judge is a long shot because it requires society to confront its libidinal hypocrisy. For one, I will enjoy all the discomfort that the judge experiences when someone finally does, and I just hope that I am the first to make the argument.
In closing, let me pander to the hypocrites who are now morally and emotionally outraged that I am advocating for the legalization of pimping and prostitution. In principle, I am not, but I object fundamentally to long sentences of incarceration for behavior that, but for the lack of a camera, would be legal. I think pornographic actors are cads and whores just as much as I think that the street-level pimps and prostitutes are. Do you want me to go further and discuss the concept of how men and women date in modern American society? The same labels could be applied to their behavior.
I have a problem with a sanctimonious society that tries to railroad people for severe punishment while celebrating other people for exactly the same behavior or normalizing it. If that makes me an advocate for pimps and prostitutes, so be it. I’ll show up to court in a zoot suit with a big gold watch and chain to make the argument that no one else will.