Consenting Adults and a Conservative-Liberal-Libertarian Split

The New York Times ran two op-eds this past week with rather different views about consensual sexual activity. Sunday's piece by nonfiction author Laura M. MacDonald summarized a 1970 dissertation by Laud Humphreys called "Tearoom Trade: Impersonal Sex in Public Places." It criticizes the use of law enforcement resources to arrest and prosecute men who solicit other men for sex in public places, and is similar to the argument made by Aaron Belkin in the previous day's Washington Post.

The recurring weakness in such criticism is that it ignores the genuine, non-homophobic concern that underlies such police action. After all, police have limited resources and must respond to constituencies. If they waste resources in an area that most citizens consider unimportant -- for example, arresting people for adulterery and other fornication, which in some states remains illegal -- they will be criticized for not spending them on problems that people do care about, such as violent crime. But citizens care about more than just direct crime against themselves or their neighbors; they also care about living in an orderly environment.

At least on this narrow issue, McArthur, Humphreys and Belkin sound like libertarians. Libertarians tend to fall into the camp of believing that police action against public solicitation of sex, or even public sex itself, is improper because it is a "victimless crime," and thus probably not ought be a crime at all.

Conservatives, however, see Law as a handmaiden of Order. Even if conservatives believed that there was no moral problem with homosexual sex between strangers, they still would worry that allowing public restrooms to become open grounds for finding and servicing sexual partners would create a problem of Disorder. Such men would be bringing a private activity into public space, and the presence of solicitation and sex would increase the probability of other ills: prostitution, the use of drugs that lower inhibitions or heighten sensation, violence from inevitable disagreements, etc. Moreover, such activity is an unfair and selfish use of a public space. Two people keeping their stall doors locked while they negotiate or engage in sex are reducing the number of stalls available to those who are in the bathroom for its intended purpose. That we cannot identify a specific "victim," a person who has been significantly harm, does not matter; society as a whole is harmed by Disorder.

The liberal perspective does feel a greater need for a specific victim, but sets the bar for what constitutes a victim lower. Where conservatives may see all the participating individuals in the Tearoom Trade as necessarily consensual, and thus only the large, diffuse group of non-participants as having been vaguely harmed, liberals are more likely to question the genuineness of the participants' consent.

This brings me to the second Times op-ed, columnist Bob Herbert's diatribe against Las Vegas, which is titled "City as Predator." ($elect) Women are the passive victims of this predator, a passivity reflected in Herbert's verbs.

"There is probably no city in America where women are treated worse than in Las Vegas."
"Vegas is a place where women and girls by the tens of thousands are chewed up by the vast and astonishingly open sex trade."
"The report explores what [mayor] Oscar Goodman doesn't appear to understand: the horrendous toll that prostitution, legal or illegal, takes on the women and girls involved. If you peel back the thin, supposedly sexy veneer of the commercial sex trade, you'll quickly see the rotten inside, where females are bought, sold, raped, beaten, shamed and in many, many cases, physically and emotionally wrecked."
"Start with the fact that so many of those who are pulled into the trade are so young — early-20s, late-teens and younger."

There's more, but you get the idea. Herbert doesn't try to argue that sex work is a sin against God, nor does he make an argument about its secondary effects in sowing general disorder to the detriment of society. Instead, he stakes his position on the claim that sex work harms the workers. His only example of a damaged individual is from a Family Division judge:

He told me about a 14-year-old who was seven months pregnant by her pimp. She was suffering from a sexually transmitted disease, had a drug problem, was undernourished and still craved a relationship with the pimp. "These cases will tear your heart out," the judge said.

Indeed they will, but they also are cases that a) occur in cities that are not contemplating the legalization of prostitution, and b) would be prosecuted against johns even if Mayor Goodman did pass his proposal, because sex with a 14-year-old would remain illegal.

Yet Herbert doesn't restrict his point to underage sex workers; even adult sex workers, in his view, are victims. "What is not widely understood is how coercive all aspects of the sex trade are." He's also annoyingly imprecise, referring to "sex clubs" with lapdances, when he most likely actually means strip clubs, which are legal to some extent in almost every state and not peculiar to Las Vegas. If the women are not victimized in a fashion that the criminal law would recognize anyway -- statutory rape, sexual assault, battery -- Herbert still declares them victims of economic exploitation: "Most of the money they receive from johns goes to the pimps, the brothel owners, the escort service managers and so forth. Strippers and lap dancers have to pay for the right to dance in the clubs, and the money they get in tips has to be shared with the club owners, bartenders, bouncers, etc."

In all honesty, I probably would have agreed with Herbert's column had he stuck to prostitution, because I am very doubtful that legalizing brothels and pimping activity is a good idea. However, the notion that strippers necessarily are victimized because they have to pay for the right to dance in clubs and have to share their tips with their employer and fellow employees is slightly ludicrous. Waitstaff, particularly in expensive restaurants, are paid below the minimum wage and expected to share tips, yet I have not heard of Herbert's wanting to ban waiting on tables. And at least in NYC, there's probably some overlap between the women in high-end strip clubs and those at fashionable bars and restaurants: struggling models and actresses who use their attractiveness in order to pay the bills. Certainly some of the drink-mixing and table-waiting skills on offer at certain Manhattan establishments lend credence to the theory that employees were hired for their appearance and charm rather than their ability to get an order right.

The average American probably doesn't fall entirely into any of the three camps. In some situations, she will be loath to prosecute apparently victimless crimes; in others she will be willing to punish infractions that violate Order; in still others she will be convinced that someone who supposedly consented is actually being coerced. I identify predominately as a liberal, yet I'm sympathetic to the conservative argument for enforcing the law against public sex, because I value Order. (Indeed, I think living in New York has increased my appreciation for doing certain things only in certain designated places; having witnessed someone urinating on a street corner helps one imagine how unpleasant it might be to use a restroom stall right after someone has had sex in it.)

Incidentally, does anyone have a theory as to why the editorials like McArthur's and Belkin's -- i.e., sympathetic to the person caught soliciting in a bathroom -- seem to have come out only in response to the news of Sen. Craig's arrest, rather than earlier when Flordia state representative Bob Allen had a similar problem? Is it because Allen's "I'm afraid of the Big Black Wolf" defense for his actions rendered him too unsympathetic?

UPDATE: Sex advice columnist Dan Savage takes a similar view that Sen. Craig is not being unfairly persecuted in having been arrested for his toe-tapping (emphasis added):

However, CASH, as I'm sure you and others involved in the homosexual lifestyle are aware, the kind of man that plays footsie in an airport toilet fully intends to have sex in that same toilet, and a public toilet is a public place -- and public sex is illegal for gay people like you, CASH, and for straight people like me and Senator Craig.

And while I would be the first to argue that most of the men looking to get it on in toilets and other public sex environments are discreet and don't bother anyone -- and I argued just that on CNN last week—some are not discreet and some do bother people. (I also argued that most of the men getting it on in toilets are straight-identified, just like me and Senator Craig.) There were complaints about that particular bathroom at the Minneapolis airport, and the police did what the police are supposed to do when there are complaints -- they responded.