Elizabeth M. Johnson

92 Texas L. Rev. 717

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During the Progressive Era, America seemed to wake up to the real threat of the “Social Evil.”  Prostitutes, who had hitherto been cast as unfortunate and naïve women who allowed themselves to be seduced and ruined, were now seen as dangerous carriers of frightening and incurable disease.  The Federal Government reacted by passing the Mann Act in 1910.  Within 15 years prostitution had been criminalized in every state.

Criminalization, however, only ever really affected the sellers of sex.  The demand side of commercial sex—comprised of men who were given the common, judgment-free, and anonymous-sounding appellation “john”—continued to buy sex with near impunity.  Over the course of the twentieth century, police departments perfected methods of finding and arresting prostitutes, including the use of street sweeps and male decoys.  Few women who were charged with prostitution challenged these methods.  The few who did came to court armed with statistics showing pervasive discriminatory enforcement of prostitution laws against prostitutes and even police testimony admitting the same.  However, these women overwhelmingly saw their defenses thrown out.  While a small and modestly growing number of enlightened judges have dismissed cases against women charged with prostitution on the grounds of discriminatory enforcement, the problem remains.  According to recent FBI statistics, roughly two women are arrested for prostitution for every one man.

Ms. Johnson’s Note urges more courts to recognize discriminatory enforcement as a defense to a prostitution charge when a defendant produces either statistical or testimonial evidence that supports the defense.  This will necessitate three important changes in how courts currently assess discriminatory enforcement claims.  First, courts will need to recognize that prostitutes and johns are similarly situated.  By doing so, they will not be able to ignore statistics that show a large disparity in arrest rates between prostitutes and johns.  Second, courts will need to lower the burden of proof for proving discriminatory intent.  Third, courts will need to closely scrutinize the traditional justifications for selective enforcement, reflexively offered by police departments and prosecutors, and reject those excuses that are tainted by sexism.  In so doing, courts will force police departments to treat prostitution as a crime inherently involving supply and demand and enforce antiprostitution statutes, laws prohibiting an ancient crime, in a modern manner.