U.S. Ninth Circuit Court of Appeals upholds ruling in prostitution legality case

By David Hutton | Feb 9, 2018

SAN FRANCISCO — The U.S. Ninth Circuit Court of Appeals has upheld a lower court’s ruling rejecting a legal effort by sex workers in California to have the state’s laws against prostitution declared unconstitutional.

The case was heard by a panel that included Judges Jane A. Restani, Consuelo M. Callahan and Carlos T. Bea. Restani, who wrote the opinion filed on Jan. 17, was sitting by designation from the U.S. Court of International Trade.  

The lawsuit was filed by the Erotic Service Provider Legal Education and Research Project.

Defendants included San Francisco District Attorney George Gascon, Marin County District Attorney Edward S. Berberian Jr., Alameda County District Attorney Nancy E. O’Malley, Sonoma County District Attorney Jill Ravitch and California Attorney General Xavier Becerra.

The California Attorney General’s Office handled the case for the defense.

The case was appealed from the U.S. District Court for the Northern District of California. Judge Jeffrey S. White presided over the case in the lower court.

In its complaint, ESP alleged that Section 647(b) of the California Penal Code, which criminalizes the commercial exchange of sexual activity, is unconstitutional.

According to its website, ESP is “a diverse community-based erotic service provider led group which seeks to empower the erotic community and advance sexual privacy rights through legal advocacy, education and research.”

In its complaint, ESP argued that California laws targeting prostitution violate the First and 14th Amendments of the U.S. Constitution, including rights of substantive due process, right to sexual privacy, freedom of association, substantive due process, right to earn a living and freedom of speech.

The lawsuit was originally filed on March 4, 2015 by ESP, which includes three former erotic service providers and an individual who would like to engage an erotic service provider.

At the center of its argument, ESP maintained that in Lawrence v. Texas the Supreme Court case ruled laws that prohibit homosexual sodomy as unconstitutional also prohibits  a  state  from  criminalizing prostitution engaged in by adults. 

ESP alleged Lawrence offers consenting adults the right to engage in private sexual activity and the state can’t criminalize a commercial exchange.

The state argued that there was nothing in Lawrence that hinted to a right to engage in prostitution.

In reference to Lawrence, Restani pointed out that the “Supreme Court determined that the Due Process Clause protects the fundamental right to liberty in certain, though never fully defined, intimate conduct.”

Lawrence has not previously been interpreted as creating a liberty interest that invalidates laws criminalizing prostitution,” Restani wrote.

ESP also noted that there is no important governmental interest behind Section 647(b) and it doesn’t further any such interest. 

“We hold that the statute, however, does pass the two-tiered rational basis test,” Restani wrote.  "Section 647(b) has a legitimate purpose, as the state maintains specific and legitimate reasons for   criminalizing prostitution in California,  which include discouraging human trafficking and violence against women, illegal drug use and preventing contagious and infectious diseases.”

Moreover, Restani noted that, as the lower court deduced, the state offered a compelling argument that Section 647(b) does discourage those issues.

Restani also noted the court was not swayed by arguments that Section 647(b) violates freedom of intimate or expressive association, right to earn a living, or freedom of speech.

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