Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

  • PAWSCC Bloggers Note for Mr. Martin: Though well versed and learned, this academic commentator is obviously far removed from the issues we as prostitutes, erotic service providers, sex workers and/or survivors face. Clearly there is a gender, class and cultural barrier between our lives, and the manner in which Professor Martin expresses his views. What the heck? Seriously. 

California Appellate Report: When the name of the plaintiff on the caption is “Erotic Service Provider Legal Education and Research Project,” you’re pretty much required to read the underlying opinion, right?

Of course you are.  If only to figure out what the heck that organization does.

  • PAWSCC Bloggers Note for Mr. Martin: I looked on The ESPLER Project website and easily found a definition of what the 501C3 organization does. Please see – “The Erotic Service Providers Legal, Education and Research Project (ESPLERP) is a diverse community-based erotic service provider led group seeking to empower the community and advance sexual privacy rights through legal advocacy, education, and research. In our legal advocacy, we seek to create change through a combination of impact litigation, policy statements, and voicing our concerns for our community in political arenas. Through educational trainings and outreach, we will empower and capacity build to address discrimination of erotic service providers and the greater erotic community. We strive to archive and rate much of the research which has been done by and of the sex worker community, and build on this history with research which seeks to be increasingly inclusive, respectful, and ultimately, relevant to the erotic service providers and the larger erotic community. ESPLERP has filed a complaint with the United States District Court challenging California’s current anti-prostitution law, Penal Code 647(b), arguing for the decriminalization of sex work – that these laws deprive individuals of the fundamental right to engage in consensual, private sexual activity.”

Here, it’s a constitutional challenge to California’s law against prostitution.  Plaintiffs say that have a constitutional right to do what they want (sexually, at least) with their bodies — even for money.  The district court dismissed on the pleadings.

Not surprisingly, the Ninth Circuit unanimously affirms.

This was a lost cause from the beginning.  Sure, Lawrence opened up a lot of things to potential challenge on the sex front.  But prostitution was carved out even in that opinion.  So there was little doubt — notwithstanding the substantial amici involvement in the case — where this one was going to end up.

Which is not to say that plaintiffs will never prevail.  Who knows what the next decade or so (or decades) will bring?  Few would have predicted, for example, that gay marriage would end up where it is now so quickly.

But at least for now, this is an idea whose time has not yet come.  At least in the judiciary.

And it isn’t even especially close. ##

California Appellate Report