Laws criminalizing sex work are potentially on the chopping block. The U.S. Ninth Circuit Court of Appeals has heard oral arguments today in the case Erotic Service Provider Legal, Education and Research Project (ESPLERP) v. Gascón. ESPLERP’s case alleges that California Penal Code 647(b), which bans prostitution, “unfairly deprives consenting adults of the right to private activity, criminalizes the discussion of such activity, and unconstitutionally places prohibitions on individuals’ right to freely associate.”
Criminalizing sex work does not reduce the transmission of HIV or other sexually transmitted infections: in fact, just the opposite is true.
The evidence is clear that laws making it illegal for consenting adults to engage in private sexual activity in exchange for money hurt public health because they lead to fear of law enforcement and criminal prosecution, deter use of condoms — they are often used as evidence of intent to commit this crime — and create hurdles to health care for sex workers and their clients. The lower court ruling was ill-informed and misguided, and the Ninth Circuit should direct the lower court to reinstate the case and to consider the effects of these laws on public health.
The lawsuit was initially filed in March 2015. The case was originally dismissed by the federal trial court. Back then Lambda supported the fight as well, filing a brief explaining how the law stands in the way of efforts to reduce HIV transmission. Unfortunately, that court did not examine the evidence of how criminalizing sex work impedes public health goals.
Kara Ingelhart, Lambda Law Fellow, says they see this fight as a continuation of Lawrence v. Texas. She says:
Lambda Legal’s landmark Supreme Court victory in Lawrence v. Texas, the case that struck down laws that criminalized sex between same-sex partners, underscored that our right to liberty protects our decisions about adult, consensual sexual intimacy. It is merely logical that Lawrence extend to the adult, consensual sexual intimacy that occurs between sex workers and their clients; the fact that money is exchanged shouldn’t matter.
Last year, Lambda posted a blog post, “The Constitution Should Protect Sex Work” explaining their position. They said:
Money complicates sex. But a commercial exchange shouldn’t negate these constitutional rights. And frankly, sometimes relationships are transactional. For just a few common examples, consider prenuptial agreements, surrogacy, and hook-up websites; the fact that money is involved does not obliterate constitutional protections for marriage, parenting or sexual intimacy. All of these truths animate Lambda Legal’s position that the government may not constitutionally criminalize consensual adult sex solely because it is bought and sold.
Photo by MagMos via iStock