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.
Oh, me. Oh, my. Heads are spinning in Kennebunk, Maine. Townspeople are sniggering about just who is on the list of clients snagged when police arrested Wells resident Alexis Wright and charged her with prostitution, tax evasion and invasion of privacy. It turns out the 29-year-old fitness instructor is believed to have video-recorded some intimate moments. I am betting that there is a run on the services of cardiologists and divorce lawyers in the surrounding area; plenty of Johns are preparing for questions about just what muscles they were exercising at Ms. Wright’s studio.
Just why we criminalize prostitution in this country is a mystery to me. I could not care less about whether Ms. Wright is using her exercise studio as the a libidinal fantasy island. If consenting adults are desperate enough to pay for sex, then let them, I say. It is not as though we don’t use sexuality as an advertising tool for products ranging toothpaste to cars. What’s the harm in a little honesty?
Local police were set to release the list of Johns when a lawyer believed to represent two of the libidinal warriors filed an emergency writ to block publication. Maine’s Supreme Court is expected to rule as early as next week on whether to keep secret the list of names.
There is little basis in law for keeping the names confidential. It is against the law in Maine, as it is in most places in the United States, to patronize a prostitute. Local police have begun to issue summons to Ms. Wright’s clients charging them with engaging a woman of the night.
Police officers often evoke a law enforcement privilege against disclosure of information regarding an ongoing police investigation. In such cases, a court may keep from public view any information that might shed light on the activities of police prior to completion of an investigation. Typically, it is the police who evoke this privilege, not interested third parties who may or may not face arrest.
What a contrast to the case of Anna Gristina, a client of mine, in Manhattan. The District Attorney’s office in the Big Apple went on the record accusing her of running a multi-million brothel for many years. Yet the sole count for which she was arrested resulted from a sting operation in which an undercover police officer paid for what amounted to a live peep show. No "customers" were ever identified in a public record; indeed, in the course of the prosecution, the People never disclosed the name of anyone every believed to cavort for pay. Neither did evidence of the millions my client was alleged to have made ever surface. It was a sexless prostitution prosecution, this in the city that never sleeps.
I’ll never know why Manhattan prosecutors made Gristina out to be the Queen of Tarts and then failed to produce evidence that she did more than take a cop’s marked money for a tryst. My hunch they wanted her to name names. She didn’t.
They do things differently in Maine, I suspect: Both the honey pot and the beys get busted.
Tongues are wagging up and down the East Cost tonight about who is on the Kennebunk list. We received a call today from no less an outfit that the ABC Evening News about the case. Rumor has it police officers, politicians, lawyers and other prominent men were visiting Ms. Wright’s fitness studio to exercise muscles best flexed in private and at home. Why are we so crazy about sex?
"We believe very strongly that their names ought not to be released. The mere releasing of their names will have devastating consequences in a case ... the government ... will have great difficulty proving," the lawyer for the suspect Johns, Stephen Schwartz claims.
Schwartz has a point. Ms. Wright, and the suspect Johns, are all presumed innocent unless and until they are proven guilty. The names of those alleging to be victims of sex crimes typically remain confidential to protect them from the scandal associated with victimization. What justification is there for broadcasting the names of those presumed innocent? None. It is mere titillation for the sake of titillation, and it makes a mockery of the presumption of innocence.
I’m rooting for Ms. Wright. All Hell’s going to break lose in Kennebunk, and soon.