In Re P.

MARGARET TAYLOR, JUDGE: Respondent P. is a 14 year old female. The petition alleges that "Respondent did offer to perform a deviate sexual act for U.S. currency," an act which, if committed by an adult, would constitute the crime of prostitution. The Bill of Particulars of the Corporation Counsel describes the incident as follows:

"On March 6,1977, at about 8:30 P.M., respondent accosted complaining witness on the street and offered to engage in sexual acts with him for a fee of $10; he agreed and respondent took him to the Evans Hotel. Complaining witness paid $4 for the use of a room and went there with respondent."

It should be noted that the complaining witness was not charged with the violation of patronizing a prostitute. Nor was he charged with any other crime applicable to these facts.

A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee. A deviate sexual act is defined by the Penal Law as:

"Deviate sexual intercourse" means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva.

Deviate sexual intercourse, also a Class B misdemeanor, is a crime under the Penal Law: 

Consensual Sodomy: A person is guilty of consensual sodomy when he engages in deviate sexual intercourse with another person.

The threshold question in all juvenile delinquency proceedings is not whether a respondent committed a particular act but whether such an act would be a crime if committed by an adult. If not, then the court can go no further and must dismiss the petition. Accordingly, if acts committed by an adult would not constitute a crime because the criminal statute or statutes making such alleged acts a crime were unconstitutional, such acts could not be the basis for a charge of juvenile delinquency. A youth under the age of 16 may be found to be a juvenile delinquent only if an adult who engaged in the same conduct as the youth could be found to have committed a crime. If a statute is unconstitutional as applied to adults, a statute is unconstitutional as applied to juveniles. 

Inasmuch as the petition alleges that the respondent offered to perform an act of consensual sodomy for a fee, the charges brought against respondent necessarily invoke the prostitution statute and the consensual sodomy law. Respondent is specifically charged with offering to perform a "deviate" sexual act for a fee. If she had been charged with offering to perform a "normal" sexual act (i.e. fornication) for a fee, it would have been necessary for the court to deal with the question of whether a crime can be committed by offering to perform a sexual act, which in and of itself is not illegal, for money. Here, however, respondent is charged with offering to perform an act which in and of itself is prescribed by a criminal statute, the consensual sodomy law. It is necessary, therefore, for the court to examine those sections of the Penal Law and make a determination as to their constitutionality.

Respondent, by her attorney, has moved to dismiss the prostitution charge on constitutional and other grounds. For the reasons stated below, the court holds that sections 230.00, 130.38 and 130.00(2) of the Penal Law are unconstitutional under the New York State Constitution in that these statutes constitute a denial of equal protection and invade respondent's constitutionally protected right of privacy. 

The equal protection clause is offended when the state discriminates between classes of citizens similarly situated on arbitrary and unreasonable grounds not related to the objective of the legislation. The selective enforcement of a law against a particular class of individuals on the basis of sex is no less offensive to the equal protection clause than classification by sex on the face of the statute.

Until 1964, a prostitute was defined as a "female person." The legislature amended the penal law to make the prostitution statute sex neutral in its wording and it enacted a statute proscribing the act of patronizing a prostitute. Although the prostitution laws were made facially sex neutral, their historical sex bias has endured.

A person may be found guilty of prostitution for simply "agreeing" to perform a sexual act, even if the patron is the solicitor. In contrast, patronizing a prostitute is merely a violation carrying a penalty of up to fifteen days imprisonment or up to $250 fine. The conduct engaged in by the prostitute and the patron is nearly identical and the wording of the respective statutes is quite similar.

The instant case presents clear evidence of intentional selective enforcement of the prostitution statutes against females. The over whelming majority of arrests made under section 230.00 of the Penal Law are of female prostitutes. During the first six months of 1977, 3219 arrests were made in New York County under this statute. Of those arrested, 2,944 were females and only 275 were males. Of the 2,944 female prostitutes arrested, only 60 of their male patrons were charged with a violation. This data supports the conclusion that those assigned the task of enforcing the law harbor the attitude that women who supply sex are immoral whereas the men who demand their services are considered blameless.

Since it cannot be demonstrated that there is anything intrinsically harmful in acts of consensual sodomy between unmarried adults, can Penal Law section 130.38 be legitimated as a mode of protecting the stability of marriage and the family? There is no empirical evidence that so-called "deviate" sex, an activity that has been engaged in for centuries has been a factor of any significance affecting the stability of marriage and the family. On the contrary, in the 17 states where consensual sodomy has been decriminalized, and the 100 nations that permit consensual sodomy, cooperative social institutions like the family remain stable.

The court has searched for, but cannot find, a proper governmental objective served by the legislature in distinguishing between the marital status of persons engaging in so-called "deviate" sexual intercourse. Completely lacking is any evidence that the conduct proscribed is more harmful to unmarried participants or that such conduct between unmarried persons is more harmful to the public. 

If the consensual sodomy law was designed to prevent sexual relations between unmarried people, then "normal" sexual relations between the unmarried would also be sanctioned by the Criminal Law. Fornication, however, is not a crime in this state. If the purpose of the law is to promote conventional sex it also fails in its objective since married persons are permitted to engage in unconventional or "deviate" sexual conduct. Thus, if morality vis a vis sexual norms or the promotion of marriage are the objectives of the legislation, there is no rational let alone substantial relationship between the law itself and these legislative ends. There is no logical or factual basis on which the marital status of the participants should be decisive as to whether a mode of sexual conduct is legal or criminal. Since the classification created by section 130.38 of the Penal Law and section 130.00(2) as incorporated therein has no rational basis, the criminalization of "deviate" sexual intercourse between persons who are not married to each other is an unconstitutional denial of equal protection of the laws.

As the framers of the Federal and New York State Constitutions realized, a tension exists between the rights and powers of the government as opposed to those rights reserved to the people. As the Supreme Court observed nearly a century ago:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference from others, unless by clear and unquestionable authority of law. 

It is the Bill of Rights that stands between the will of the majority and the individual. It declares that except in the direct pursuit of protecting the public health, safety or morals, the State may not interfere with the individual's right of self expression. As numerous commentators have noted, the right of privacy found in the Bill of Rights has, as its underpinnings, the concept that affording the maximum amount of opportunity for individual choice maximizes the ability of each person for self development. 

Running counter to the majoritarian tide of laws is the Bill of Rights' protection of diversity and guarantee of opportunity for the disadvantaged, who are unable to gain redress through the political process, to gain expression of and protection for their views in the courts.

The Supreme Court only recently recognized in the Bill of Rights a right of privacy. But the parameters of this right are quickly being revealed. The right of privacy encompasses not just sexual conduct in the marital relationship but is broad in scope, including in its protection each individual's decision as to whether, when and in what manner he or she will engage in private intimate relations. The mantle of constitutional protection surrounding personal intimacy is not, therefore, limited to married persons. It attaches to the individual not the relationship, and protects the individual's right to engage in non-procreative recreational sex.

This court states at the outset the premise that private, intimate, consensual sexual conduct not harmful to others, even if it violates the personal moral code of many, does not violate public morality and is protected by the right of privacy. In determining whether the state has a legitimate interest in proscribing private consensual sexual conduct, "deviate" or "normal", the following questions must be dealt with:

1. What harm does such conduct pose to the public health, safety or morals?
2. Is there harm in fact? Can harm actually or empirically be shown?
3. Is the harm caused in fact by the proscribed conduct?
4. Is the legislation reasonably related to the state's legitimate objective or is the relationship between the protectible public interest and the proscribed conduct too attenuated?

This court will not accept at face value bald claims of harm to the public health, safety and morals, but will closely examine the reasonableness of the state objectives proffered by the Corporation Counsel.

In discussing above the equal protection challenge to the consensual sodomy statutes, this court discussed the harms to the public health, safety or welfare allegedly caused by "deviate" sexual intercourse. Assertions that "deviate" sexual intercourse is intrinsically harmful to the participants or that it has a deleterious effect on the moral fibre of the community by undermining the stability of marriage and the family were each shown to be unsubstantiated. Although other courts argue that the Bible prohibits "deviate" sexual conduct and therefore, such conduct is immoral, it is this court's view that absent empirical evidence demonstrating that private, consensual "deviate" sexual acts cause harm in fact to the public health, safety or welfare the state may not legitimately proscribe such conduct. Since there is no proof that public harm is caused by consensual sodomy, the government may not intrude in private, personal decisions regarding sexual preference.

Since there is no legitimate basis for governmental interference in private, consensual sodomy, the balance of this opinion will deal with the remaining question of whether the state may legitimately proscribe commercial, recreational sex. It is claimed that prostitution is indeed harmful in that it spreads disease, leads to ancillary criminal conduct, encourages criminal organization and generally may be characterized as anti-social behavior both offensive and injurious to the community.

It is urged that prostitution spreads venereal disease. Without question, venereal disease is a serious threat to public health and it has apparently now reached epidemic proportions. However, all empirical data supports the conclusion of Dr. Charles Winnick of the City University, President of the American Social Health Association, that "[T]he amount of venereal disease attributable to prostitution is remaining fairly constant at a little under 5%, which is a negligible proportion compared to the amount of venereal disease we now have." The state may have a legitimate interest in seeking to eradicate even this small incidence of disease, but the attenuated relationship between prostitution and venereal disease emphasizes that it would be unreasonable to prohibit all prostitution for the sake of eradicating 5% of the "VD" health hazard. 

It is also claimed that prostitution leads to other crimes. Indeed, in this case respondent is also charged with acts which could constitute robbery and assault in the second degree if committed by an adult. Nonetheless, the Corporation Counsel has not come forward with any empirical evidence substantiating that prostitution is the cause-in-fact of ancillary crime. Indeed, it has been concluded by numerous social scientists that crimes ancillary to prostitution are a by-product of the environment to which society consigns prostitution.

“The effects of the enforcement procedures on the prostitute clearly are negative. Jail is not a deterrent. It often encourages criminal conduct. Incarceration contributes little to rehabilitation while teaching the prostitute about genuine criminal activity. She learns that other more serious crimes may pay better; she begins to view herself as a criminal. Attaching the label "criminal" to prostitution and imposing heavy sentences blur the distinction between offering service and committing a theft.”

Because prostitution and patronizing a prostitute are criminally sanctioned, prostitutes and their patrons alike fear reporting ancillary crimes for fear of prosecution. Moreover, 70% of the women in prison for felonies were first arrested for prostitution. Thus, there is a clear inference that it is the criminalization of prostitution and not prostitution itself that leads to ancillary crime.

This court knows of no study that has substantiated the allegation that sex for money in fact causes ancillary crime. Nor has the Corporation Counsel shed any light on this subject. Due process requires that a law be reasonably related and applied to some actual or manifest evil: it must have as its objective the eradication of harm in fact caused by the proscribed conduct. The constitution limits the extent to which the state can proscribe prostitution with the purpose of eradicating an entirely distinct, severable kind of conduct. The state must proceed against ancillary crimes directly by enforcing the specific sanctions against such conduct and may not rely on the blunderbuss approach of incarcerating all prostitutes.

Another type of harm attributed to prostitution is that it injures the community. Underlying this claim are the allegations that commercial sex undermines the stability of the family and is simply immoral. The law may seek to legislate morality, but it must do so without offending the constitutional protections of the due process clause and the right of privacy.

The Penal Law should act to deprive an individual of liberty only when a real and demonstrable harm to the public can result from the proscribed conduct. The state cannot rely upon the bare assertion of immorality to justify a criminal prohibition. Attempts by the state to regulate lifestyle choices on the bare assertion that the regulation serves morality is impermissible. Conduct that does not interfere with the rights and interests of others may not be regulated by the state.

Preventing harm to what is believed by many to be the central institution for social cooperation, the family, may well be a legitimate objective of the state. Most male patrons of prostitutes are married. And it is the patron who creates the demand for the services of prostitutes. Thus, if the marital contract is breached by promiscuity or the family undermined by extra-marital sexual relations, the burden of responsibility lies with the patron, not the prostitute. Yet, the penal law punishes the prostitute most severely. If the state's objective is to promote the stability of the family and commercial sex has a direct impact upon the family, then the law should focus on the conduct of the patron. However, it has never been demonstrated that commercial sex has had any effect on the stability of marriage or the family. Indeed, although prostitution has been practiced for centuries, disruption of the family has never been causally related to prostitution. 

Several states and numerous foreign nations have decriminalized prostitution without any indication of a concomitant decline in the vitality of the marital or family institution. The decriminalization of fornication in this state has not led to any reported damage to the family. This court can find no reason why commercial fornication should have a less innocuous effect on these social institutions. Thus, there is no empirical connection between prostitution, whether involving ordinary or deviate sexual intercourse, and the stability of the family. Therefore, the state cannot reasonably assert protection of marriage and the family as legitimate objectives for its regulation of prostitution.

Sex for a fee is recreational, not procreational sex. Typically, it is the female participant who receives the fee. The arguments that prostitution harms the public health, safety or welfare do not withstand constitutional scrutiny. It may be that it is the fact that a woman is accepting a fee for recreational, sexual services that triggers the governmental intrusion upon this private consensual sexual conduct. If it is paternalism that prompts the legislature to protect women by proscribing prostitution, [NOTE 26] that motive is ill served by the prostitution laws since women are not protected, but rather are penally punished. Society may find something offensive about having women perform sex for money. However offensive it may be, recreational commercial sex threatens no harm to the public health, safety or welfare and, therefore, may not be proscribed.

However, the court will point out that this public conduct is not caused in fact by the act of engaging in sexual relations for a fee. This harm, if any, is caused by the solicitation aspect of prostitution. The public aspect of prostitution, solicitation, must be distinguished from its private aspect, the performance of consensual sexual relations for a fee in private. Street solicitation is a method of advertising the business of commercial sex. It is separable from the underlying activity. 

In Nevada and Great Britain, for example, prostitution has been legalized, but street solicitation is proscribed by public order, breach of the peace-type statutes. Advertising is unoffensively and effectively accomplished through the use of discrete newspaper advertisements. 

The prohibition of the offensive public conduct associated with the solicitation of prostitution may be a legitimate state objective. Since it has been demonstrated that only this public element of prostitution may make that conduct harmful, and that public conduct may be dealt with separately from the sexual conduct itself, it would be unreasonable for the state to completely proscribe private, sexual conduct in order to reach distinct public solicitation.

Members of the public may have a protectable privacy interest: not to be repeatedly accosted on the streets by a prostitute any more than a religious zealot, peddler, alcoholic or panhandler, and not to have a group of street musicians, noisy teenagers, solicitors for charities, or streetwalkers converging at his or her doorstep These public interests can be protected, but by less intrusive means than those now employed by the state. Private, consensual sexual conduct between adults, whether or not performed for a fee, is protected by the right of privacy. If the state has a legitimate interest in curbing public disorder, it can and must accomplish this objective without depriving the individual of his or her right to engage in private, consensual, sexual relations. The constitutionally protected right of privacy makes it incumbent upon the state to implement its policy by more reasonable, less intrusive means.

For the reasons stated, the sexual conduct charge against respondent is dismissed.