Today’s Houston Chronicle mentions that the city council has voted in favor of a rather questionable new ordinance intended to cut down on street prostitution:
Previously, like in most locations, police have been required to close transactions with hookers to meet arrest criteria, although anit-hitchhiking laws are sometimes invoked as well. Now, it appears that just looking like you mean business (and being recognizable to an officer from a previous arrest) will get you busted. Effectively, one may be arrested before the crime is ever committed. Shades of “Minority Report”.
Commentary by representatives of the ACLU, among others suggests that such an ordinance is unconstitutional. I think it’s far too broad to work. What say you?
I don’t think it’ll fly. The only way it might work is that they can claim the arrests are for loitering, but in that case they’d at least have to tell the women to move and give them a chance to do so before arresting them. Otherwise it seems to be a case of “guilty until proven innocent.”
The war on prostitution reminds me of the War on Drugs. How long has prostitution been illegal? 6000 years? Have you “won” the war on prostitution yet?
I think it is a better use of police time for them to go after robbers, rapists, child molestors, kidnappers, and murderers.
Excuse me, not to rain on the parade here, but the ordinance requires that the “known prostitute” demonstrate the intent to commit the act of prostitution by “enticing, soliciting or procuring someone.” So it isn’t like the officer is divining intent out of thin air.
Explain exactly what aspect of the law is “unconstitutional”, what provision it violates, and why, preferably using reference to current case law involving the provision in question. If you please.
Having spent some time away, you have been spared this.
But the recurring theme seems to be that laws like this violate the “Civil Rights We All Should Have” Amendment, or possibly the “Congress Shall Make No Law I Don’t Like Amendment,” both of which must be in the Constitution, as evidenced by the frequent inferential reliance placed upon them.
If this was lacking the bolded section, I would be against it. However, since it is there, I see no problem with it.
The minority report analogy isn’t quite right. The prostitutes aren’t being arrested for possible future acts. They are being arrested for a sort of attempted prostitution. I see this as being like hiring someone to kill your wife. Even if the plot is never attempted, you have broken the law.
Sorry, I can’t, for I am not a legal scholar, and have never claimed to be. OTOH, the article I linked to, as stated in the OP (apparently you missed this part), includes the opinion of an ACLU representative that the ordinance may be unconstitutional. I presume that that person has some sort of legal background, don’t you?
Debaser may have found the nail/hammer interface when he/she used the term ‘loitering with intent’, since that, to my limited knowledge, has considerable precedent. The question is, what does ‘enticing, soliciting or procuring’ someone constitute? If a person deemed a potential or former prostitute is viewed by police talking to another person in a car, is that grounds for arrest? According to the description of the ordinance, the answer would appear to be ‘yes’.
It still seems to me, though, that without showing clear intent to perform, uh, ‘services’ for money, it’s gonna be hard for such a case to stand up.
Hey, maybe the council simply doesn’t care whether the ordinance stands up long-term. At least they’re seen by their constituents as doing something about a problem which no one denies exists in this city, and maybe they figure some short-term benefit in cooling off street activity though publicity for the ordinance.
It will be interesting to see if and when the ordinance is enforced, and what happens with the first cases. Maybe it will end up universally ignored, like the infamous ‘6 foot’ rule in, er, gentlemen’s clubs here. Maybe it will be used to harass bystanders in areas where the cops don’t want people to gather. Remember, this is the city where, a few months ago, police responded to complaints about street racing by arresting everyone in sight, including families eating at a nearby fast food restaurant.
Oh, and Bricker, thanks for your really useful contribution to thye debate. :rolleyes:
If that is a catchphrase used in the area to ask for sex, then they could be. You’ll notice below that in Texas, prostitution includes offering to engage in sex for a fee. If prostitute uses a catchphrase like the above, where the expected reply is, “how much?”, it might be that the prostitute is offering to engage in sex for a fee, which is already illegal.
Um, just because you have some sort of legal background doesn’t mean that you are right about the law. In fact, in every trial, one set of attorneys turns out to be wrong - they lose the case.
Sad to say (I’m a member), the ACLU is often wrong.
I’m going to partially disagree with my esteemed colleagues Bricker’s and DSYoungEsq’s belief that the law is constitutional. The problem with the ordinance is the word “enticing.” Taken broadly, that could include simply dressing like a tramp. This portion of the ordinance may fall afoul of freedom of expression protection. (repeat “may” - I can’t think off the top of my head what message may be expressed by dressing like a tramp, but I’m sure someone will think of something)
That being said, I don’t think the law will be found unconstitutional. Instead, IMO it is more likely that the courts will construe the word “enticing” (or is it “entice” in the ordinance itself) narrowly, to require that a person “entice” another by some word or action, not merely by dress.
I agree with Sua. I have no problems with prosecutions based on solicitation or procurement; the troubling word is the ambiguous enticing. What the hell does that mean? It is a catch-all for any suspected prostitute that doesn’t fit the solicitation or procurement clauses. I imagine arrest reports something like this:
"Suspect was wearing a latex skirt and a leather bustier, which caused an erection in the officer; suspect was arrested for “enticing.”
Every act of the legislature is presumed to be constitutional, and the Constitution is to be given a liberal construction so as to sustain the enactment in question, if practicable.
When the constitutionality of an act is challenged, a heavy burden of proof is thrust upon the party making the challenge. All laws are presumed to be constitutional and this presumption is a strong one.
If the courts can save the statute by narrowly construing “entice” to avoid any conduct which may be constitutionally protected expression, they will do so.
IANAL , but New York State has a similar law, which has been enforced. The significant difference between the NYS law and the Houston ordinance appears to be that the NY doesn’t use a vague word like “entice” - instead it refers to
That’s the sort of behavior I suspect the author of the Houston ordinance was trying to prohibit in the first place, and it doesn’t always constitute offering, soliciting or engaging - I might perform any of those actions ten times in fifteen minutes and not be successful in stopping a single car or engaging a single passerby in conversation.
“Entice” is too vague - but since I haven’t found the ordinance online, I can’t be certain that “entice” is not defined within the ordinance.
I think that the logic behind this is something of a “walks like a duck” sort of thing – that is to say, cops can tell the difference between a known prostitute and a good time girl who is dressed like a slut and going out to party, whooping it up and bantering with the men who pass by while she’s waiting for her ride or her friends or whatever.
Even on a street corner filled with people, it’s not very hard for a police officer to pick out the one who is actively engaging in prostitution. It’s even easier in the known prosing zones where these people are bold. I think its fair to say that when this law targets “known prostitutes” it’s limited to those who police know by appearance because they’ve been seen out on the streets frequently or have been arrested before.
And frankly, it’s not hard to figure out the motives of someone who is wearing little more than underwear, waving at every car that passes without a woman or child in it, and asking the ones that stop if they want a “date” “good time” or “party”. Remember that the demeanor and appearance of street prostitutes is frequently affected by drug use and addiction, as well, making them more obvious.
There is no constitutional right to solicit passersby or drivers for prostitution, so I’m not sure why there’s a constitutional issue in a law that prohibits that activity.
This reminds me of the people I hear that get arrested for having large amounts of drugs and getting charged with intent to distribute. Of course, no one can prove it wasn’t all for their own private use, but the charges always stick anyway, don’t they?
