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Budget Crisis County Prosecutes Million Dollar Male Escort Case
by Carol Leigh ( carol [at] bayswan.org )
Sunday Nov 4th, 2007 11:54 PM
This story describes the factors surrounding the trial of Starchild, charged with prostitution as a result of entrapment in the course of a sting operation conducted by the Fremont Police Department on December 5th, 2005. Focusing on the trial expenses in the midst of the country budget crunch which reduces the court operating times to 3 hours in the afternoon, plus an historic challenge on the basis of Lawrence v. Texas, this article explores the follies of this prosecution.
Budget Crisis County Prosecutes Million Dollar "Male Escort" Case:
Fremont Conducts Inter-County Bedroom Sting
By Carol Leigh

In the midst of a budget crisis which has caused clogging and early closure of Fremont and Alameda courts, the District Attorney has chosen to prosecute an expensive case against a San Francisco male escort.

Starchild was charged with prostitution as a result of entrapment in the course of a sting operation conducted by the Fremont Police Department on December 5th, 2005. The trial is currently being heard in Fremont Municipal Court 2nd floor, Dept. 602, 39439 Paseo Padre Parkway, Newark, California.

"This would be hilarious if it wasn't such a serious situation of entrapment," says Carol Leigh from BAYSWAN, Bay Area Sex Worker Advocacy Network. "These two female vice cops lure Starchild, a very, very handsome male escort, to Fremont of all places and offer to pay him money for sex."

"The city is already in deep financial trouble. They are forced to close the court early because of these financial pressures," explains Robyn Few, founder of SWOP-USA. "This money should be spent enforcing crimes of violence, robberies and burglaries to protect Fremont residents, not wasted in a long range internet entrapment of a male escort that has nothing whatsoever to do with Fremont."

"Starchild, like most San Franciscans, would have little cause or desire to go to Fremont. I don't meant to put down Fremont, especially in light of the city's financial woes," adds Leigh.

Although no one can determine the potential cost of this case, estimates range from tens of thousands to nearly a half million, and perhaps to a million dollars including expenses for the decoy operation, court expenses and follow up. A 1987 study of yearly prostitution enforcement expenses by Julie Pearl in Hastings Law Journal estimated prostitution enforcement expenses in larger cities to between five and ten million.

San Francisco activists are outraged at this blatant inter-county sting, which by the D.A.'s own allegation, involved private activities by consenting adults, in another county. Starchild is a well-known activist, a San Francisco hero to many. An active Libertarian, Starchild ran for Supervisor in 2006 with his occupation listed as "escort/exotic dancer." He is also known for the support he has offered others who are unfairly prosecuted for victimless offenses.

"Not only is the entrapment absurd, but this sting operation sent local police fishing across county lines to lure consenting adults behind closed doors," says Veronica Monet of SWOP-USA.

Lawrence v. Texas: A basis for sex worker rights?

The issue of the right to privacy for consensual adult behaviors has been established in a Supreme Court ruling, Lawrence V. Texas, in 2003. This was the second court case to reference this landmark ruling. The infamous D.C. Madame, Jean Palfrey, whose little black book rocked the federal government with sex scandals and at least one resignation, was the first to attempt a dismissal of the prostitution charges leveled against her based upon the Supreme Court decision. Since the prostitution she is accused of allegedly occurred between consenting adults and behind closed doors, Palfrey asserted that the government had no right to prosecute her.

Starchild's attorney, Erica Franklin, requested dismissal on this basis as well, however this motion was denied by Judge Keith Fudenna.

"The DA has discretion in regard to which cases to spend the taxpayers' money on. Meanwhile, the meter is running on the bill to taxpayers who as most polls have revealed, do not want to waste time and money prosecuting victimless "crimes" such as prostitution," says Robyn Few.

The Oct 29th challenge in the Matter of the State of California vs Starchild, Doc No. 216068 at the Fremont Municipal Court by Judge Keith Fudenna marks yet another milestone in the struggle for sex worker rights in the United States. "We have hundreds of girls charged with prostitution, but a guy comes along and challenges it," one courthouse worker observed.

Since the Supreme Court ruled in 2003 that indoor sex between consenting adults is no body's business but the adults involved, Starchild's is the second reference to this ruling with one well known court case referencing the landmark ruling previously. The infamous D.C. Madame, Jean Palfrey, whose little black book rocked the federal government with sex scandals and at least one resignation, was the first to attempt a dismissal of the prostitution charges leveled against her based upon the Supreme Court decision. Since the prostitution she is accused of allegedly occurred between consenting adults and behind closed doors, Palfrey asserted that the government had no right to prosecute her.

Defense attorney Erica Franklin was enthusiastic about presenting the precedent set by Lawrence v. Texas in court but did not hold much hope that Starchild's case would be dismissed.

And Franklin did just that, argued that a dismissal was in order because the alleged solicitation occurred in a hotel room not on a public street. The Judge denied the motion by ruling that Lawrence vs. Texas specifically excludes prostitution. Some suggest, however, that it may be argued that Lawrence didn't refer to 647 (b), the California Statute that criminalizes solicitation of prostitution and prostitution, but just prostitution in general.

Lawrence v. Texas, 539 U.S. 558 (2003), was a landmark United States Supreme Court case. In the 6-3 ruling, the justices struck down the sodomy law that had criminalized homosexual sex in Texas. The court had previously addressed the same issue in 1986 in Bowers v. Hardwick, but had upheld the challenged Georgia statute, not finding a constitutional protection of sexual privacy.

Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too narrowly. The majority held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence has the effect of invalidating similar laws throughout the United States that purport to criminalize homosexual activity between consenting adults acting in private. It may also invalidate the application of sodomy laws to heterosexual sex based solely on morality concerns.

The 2003 ruling is important in the context of sex worker rights because it was the first ruling that spoke to the issue of liberty in regard to sexual behavior. In fact, the minority opinion by Judge Scalia stated that this decision challenges all laws based on morality and could ultimately include prostitution. Judge Scalia's summarizes his position: "...if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." (See excerpt from Judge Scalia’s opinion below. *)

Activists from SWOP-USA, Erotic Service Providers Union, BAYSWAN and other organizations have been present in court, picketing outside the courthouse. Activists plan daily protests starting Monday, November 5th, and a street theater protest on Thursday, November 8th at 12:30 titled, "Sorry Your Grandmother Was Mugged. I Was Busy Arresting A Sex Worker."

The case will be heard daily, but only between 1:30 and 4:30 due to Fremont's budget constraints.

* Scalia, J., dissenting, SUPREME COURT OF THE UNITED No. 02-102 JOHN GEDDES LAWRENCE and TYRON GARNER, PETITIONERS v. TEXAS

"... Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e.g., Williams v. Pryor, 240 F.3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality ... indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel, 148 F.3d 812, 814 (CA7 1998) (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality ... rather than confined to preventing demonstrable harms"); Holmes v. California Army National Guard 124 F.3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry, 928 S. W. 2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991), that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality," ibid., (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." 478 U.S., at 196.2