When the government wants to over-criminalize an area, its favored tool is scare-mongering, or “worst-case-scenario syndrome.” Thus, in a run-of-the-mill .09% DUII trial with no bad driving, and a pull-over for a license plate light out, you’re guaranteed to hear talk about carnage on our highways. In a routine drug possession case, you’ll hear stories of addiction and loss that simply don’t match the facts. Lately, in prostitution cases you won’t hear that word as much as “human trafficking” — because it’s easier to get convictions if you call it that. In the March, 2015, Oregon State Bar Bulletin, the following discipline was reported (last name shortened to “R” because this poor guy has had his name dragged through the mud enough):
By order dated Dec. 30, 2014, the disciplinary board publicly reprimanded Robert R. for violating RPC 8.4(a)(2) (committing a criminal act that reflects adversely upon fitness as a lawyer).
Over a period of several years, R. paid an adult prostitute to engage in sexual conduct or sexual contact. In April 2014, R. pleaded guilty to five counts of patronizing a prostitute in violation of ORS 167.008, a Class A misdemeanor.
R. and the bar stipulated to several aggravating circumstances, including substantial experience in the practice of law and a pattern of misconduct. In mitigation, the stipulation noted an absence of prior discipline, full and free disclosure (R. cooperated with law enforcement and reported his conviction to the bar) and the imposition of other penalties (18 months probation in the criminal proceeding).
My question: why was this lawyer disciplined at all? His bar number is from the year of my birth — meaning he’s at least in his 60’s. He was lonely, and he had an honest, long-term relationship with an adult with full agency. He didn’t breach or abuse their relationship. There was no force, coercion, or trafficking of an underage person.
His discipline comes down to the criminalization of adult conduct that we all know will happen. It’s called “the world’s oldest profession” for a reason. It’s not going anywhere. That prostitution is still illegal underscores the government’s discomfort with nuance: prostitution can be a violent system of exploit. It can also be a mature relationship between consenting adults. We should criminalize the former, and permit the latter. It seems like the most effective way to do so would be to legalize and regulate an industry that we know exists and will always exist. Instead, like drugs, the government chooses to create a unregulated black market. In so choosing, we knowingly put more kids and humans everywhere at risk — decriminalization of sex work would avert 33-46% of HIV infections in the next decade.
That statistic and many more are the result of years of studies that have led major human rights organizations to recommend decriminalization. Amnesty International; the United Nations; Human Rights Watch; and the World Health Organization all have adopted resolutions recognizing that the best way to protect the safety of sex-workers (and their clients and clients’ families) is to legalize the industry. By refusing to do so, we imperil our own citizens. Our government becomes an assistant to actual human traffickers — because they work in the dark, in an unregulated, illegal industry, rather than working in the light, in an industry with health and safety protections.
We have hope that the recent legalization of marijuana — without the sky falling — will help humanity evolve to decriminalize other forms of human conduct, like prostitution for a mature, lonely lawyer in his 60’s who wants to contribute to an adult sex-worker’s business of choice. The government has no business being in their bedrooms. Hopefully, in a few years I can look on this man’s disciplinary reprimand as an anachronism — the same way I would look at a lawyer’s old discipline for marijuana possession now. In both situations, it’s not the lawyer who erred — it’s us.