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Court Upholds California Laws Against Prostitution

By William Vogeler, Esq. on January 19, 2018 | Last updated on March 21, 2019

Sex sells, but that doesn't make prostitution legal.

That's a quick summary of Erotic Service Provider Legal Education and Research Project v. Gascon. The case drew a lot of attention -- because the plaintiff sued to legalize prostitution -- but the world's oldest profession was outlawed long ago.

The U.S. Ninth Circuit Court of Appeals said there's no fundamental right to engage in prostitution -- at least not in California.

Consensual Sex

Prostitution has been against the law in the Golden State since 1872, when prostitutes were subject to a $500 fine and six months in jail. The penalty now is $1,000, plus up to six months in jail.

In 2003, however, the U.S. Supreme Court ruled in Lawrence v. Texas that people have a right to consensual sexual conduct. Louis Sirkin, an attorney for the plaintiffs in the Ninth Circuit case, said that includes sex workers and their customers.

But the Ninth Circuit didn't buy it. The appeals court judges said they already considered the issue 20 years ago.

"In IDK, Inc. v. County of Clark," the judges said, "we upheld a regulation which infringed upon the right of escorts and clients to associate with one another, and determined that the relationship between a prostitute and client is not protected by the due process clause of the Fourteenth Amendment."

Harmful Effects

Deputy Attorney General Sharon O'Grady said banning commercial sex protects people against the harmful effects of prostitution. For now, it is still the law in California.

But it was not so clear at oral arguments before the Ninth Circuit. Judge Carlos Bea set up a potential issue.

"Why should it be illegal to sell something that's legal to give away?" he posed at the hearing.

The appeals panel ruled unanimously to affirm the judgment dismissing the case.

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