Conundrums Abound In Kennebunk Vice Case

Offer to pay a man cold hard cash to kill someone and you’ve struck a deal. But is it a contract? Suppose you pay your killer but he never performs. Do you get your money back?

The answer is a simple “no.” Although the agreement looks like a contract, it’s objective, the unlawful killing of another, is repugnant to the law. The agreement is, as lawyers like to say, against public policy. Hence it is unenforceable.

A contract, then, is simply a promise the law will enforce. The law chooses not to enforce contractual terms for illegal acts. 

Now change the topic. Suppose you dim the lights, turn on some romantic music, uncork a bottle of wine, and settle in for an evening with a lover. Once things turn erotic, you flick the secret switch of a video recording device, and, without the consent of your partner, you tape your lovemaking.

That will get you in trouble in most states. Publicizing the videotape could get you sued civilly for invasion of privacy by broadcasting a private moment. You might also face criminal charges for voyeurism. We value intimacy and expectation of privacy that surrounds it.

But suppose your intimate moments are with a man or woman to whom you have offered payment in exchange for your libidinal romp? In other words, suppose your partner is a prostitute. Is it still illegal to tape the evening’s festivities? Is it illegal for the prostitute to tape you without your consent?

Prostitution is every bit as illegal as murder in almost every jurisdiction in the country. Parties to a murder-for-hire contract shed the right to have the terms of their agreement enforced in court because their conduct is illegal. If it is illegal to patronize a prostitute, and to serve as a prostitute, do the parties also shed the right to cry fowl in civil court over what takes place when the lights are dimmed? What state interest is served in prosecuting a prostitute who tapes her Johns?

This issue will be tested soon in Kennebunk, Maine, where 29-year-old Alexis Wright stands charged with prostitution and with secretly taping her customers. The State of Maine intends not just to prosecute Ms. Wright; it is also in the process of issuing criminal summons against her Johns. Among the charges Ms. Wright faces is violating her customers’ right to privacy.

A lawyer for several of Ms. Wright’s Johns ran to court last week to try to prevent the State of Maine from publicizing the names of her clients. The Maine Supreme Court is expected to rule on the motion to keep those names secret as soon as this week. The claim that these potential defendants have a right to special treatment as defendants is, frankly, threadbare. If they’ve broken the law, even a foolish law, such as that making prostitution a crime, then they’re names will be made public just as the name of every other person accused of a crime will be. There is no randy fool exception to the rules of court.

Ms. Wright is in the eye of a storm right now. She’s been accused of crimes, including tax evasion. She’s apparently created a video library of the leisure class playing naughty behind closed doors. She has no choice now but to fight back. 

She should challenge whether Maine residents really believe there ought to be a law against prostitution. It’s a silly offense, really. Sex is one of the few recession proof trades in a struggling economy. We use the promise of sex without consequences to sell virtually everything. If you doubt it, turn on the television and watch the ads. Ms. Wright’s real crime might be that she is a little to honest and direct about what she is doing.

Her next line of defense should be to challenge whether charges that she invaded the privacy of her customers are legally sustainable. Didn’t the men who visited her fitness studio disrobe voluntarily, and while themselves engaged in illegal conduct? Aren’t they in a position that looks very similar to that of the man who pays for a murder but doesn’t get the satisfaction of seeing the job done?

Of course, there are differences between murder and prostitution. We say the murder is malum in se, an act bad in itself. But if prostitution is not bad in itself, then what is it, a mere regulatory offense? I doubt prosecutors are willing to concede that.

Conundrums abound in Ms. Wright’s case. I hope she will be clever enough to exploit them.