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Dear John

Is the woman committing the crime by selling herself or is the man committing the crime by paying for the service? — MEDuke

Who says feminism hasn’t accomplished anything? Nowadays, in most American jurisdictions, both the hooker and the john are committing a crime in the eyes of the law. That may not seem like much of an achievement, but for much of the 20th century prostitution was something only women could get arrested for in the U.S.

These laws have since been mostly amended or replaced, so that today, while we may not have equal rights, at least we’ve got equal wrongs. One country, Sweden, has gone to the opposite extreme. There selling your body is legal (the politically correct term is “sex work”), but heaven help the chump who wants to buy.

Though prostitution has never been a high-status occupation, the occasional royal courtesan excepted, for the most part it wasn’t illegal in this country’s early years—though streetwalkers who made themselves conspicuous did risk being charged with vagrancy, public lewdness, or the like. That changed in the late 19th and early 20th centuries, an era that saw the criminalization of vices (other examples: gambling, some drugs) that till then had been considered matters for the pulpit, not the courts.

But whereas narcotics laws penalized both sellers and buyers (to be precise, possessors), prostitution laws typically went after just one party in the transaction. Why? Some legal commentators point to a well-known and persistent double standard: whereas men were seen as helpless victims of their libidos, women supposedly had no inherent interest in sex and sold themselves out of sheer wickedness.

It took a long time for that standard to change. As of 1917 only one state, Indiana, had declared that patronizing prostitutes was a crime. (A few others defined prostitution to include both the purchase and sale of sex, although few male buyers were charged.) By 1965 that number had risen to seven. In the 70s several states, including New York and Massachusetts, enacted antijohn laws, whose goal was to suppress prostitution by embarrassing customers—in 1979 New York City mayor Ed Koch famously read on the radio the names of men convicted of soliciting hookers. I hesitate to attribute this entirely to some newfound sense of fair-mindedness among public officials; clearly the main goal was more effective enforcement. But at least lawmakers had grasped that the minimum number of participants in a successful act of prostitution was two.

Today antijohn laws are fairly common, but even now the treatment of customers is far from uniform. In a few jurisdictions— Kentucky is one—state law remains focused on those selling sex, leaving it to the discretion of local authorities to criminalize buying it.

Others treat all parties equally. And some punish customers but deal with them more leniently than they do prostitutes, evidently on the same argument used to justify treating drug dealers more harshly than mere users.

As a practical matter there’s no doubt the legal hammer falls more heavily on women, although arrest figures aren’t as lopsided as they used to be. In 1970 close to 80 percent of those arrested for prostitution were female, according to FBI statistics; by 1993 that figure had dropped to 59 percent. As of 2006 it had bounced back up to 64 percent, but the total number of prostitution/vice arrests for both sexes was down significantly.

The law does come down hard, if sporadically, on one male-dominated aspect of the sex trade: pimping, legally known as pandering. The best-known statute along these lines is the 1910 federal Mann Act, formally called the White-Slave Traffic Act, which as written prohibited interstate transportation of women for “prostitution or debauchery, or for any other immoral purpose.” In fact the Mann Act has often been used to go after plain old johns, albeit famous ones. As noted in an NPR story in the wake of the Eliot Spitzer scandal, targets of Mann Act prosecution—some would say persecution—include Chuck Berry, Charlie Chaplin, the boxer Jack Johnson, and Frank Lloyd Wright.

The law has since been amended to specify that the parties involved must be engaged (or planning to engage) in actual crimes, as opposed to some prosecutor’s notion of immorality. Which, again, constitutes progress, I suppose.

By cecil adams

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