Erotic Service Providers Lose Bid to Make Prostitution Legal

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By Patrick L. Gregory

The 14th Amendment’s due process clause doesn’t provide a right to engage in prostitution, the U.S. Court of Appeals for the Ninth Circuit held Jan. 17.

Erotic Service Provider Legal, Education & Research Project, which includes former erotic service providers who “wish to perform sex for hire,” and a potential client argued that a California law criminalizing prostitution was unconstitutional.

ESP argued that such a right exists under the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, holding that laws prohibiting consensual same-sex sodomy were unconstitutional.

But the high court explicitly said that decision didn’t involve prostitution, the Ninth Circuit said in a decision by Judge Jane A. Restani, sitting by designation from the U.S. Court of International Trade.

California’s law is constitutional because the state has a legitimate purpose in “discouraging human trafficking and violence against women” and “preventing contagious and infectious diseases,” the court said.

ESP argued that criminalizing prostitution “makes erotic service providers more vulnerable to crimes” and doesn’t significantly deter diseases from spreading.

Those “claims may yet convince the California legislature to change its mind,” the court said.

“But this court cannot change its mind for them.”

Judges Consuelo M. Callahan and Carlos T. Bea joined the opinion.

Santen & Hughes LPA argued for ESP. The California attorney general’s office argued for the state.

The case is Erotic Serv. Provider Legal Educ. & Research Project v. Gascon , 9th Cir., No. 16-15927, 1/17/18 .

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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