The New York trial of Harvey Weinstein, which ended last month with a guilty verdict on charges of rape and sexual assault and an acquittal on more serious charges of predatory sexual assault, has already elicited extensive commentary from pundits of all stripes. Everyone wants to know what it will mean, for example, for the success of rape prosecutions going forward, for other victims of sexual assault who wish to file charges and testify, and for the future of the #MeToo movement generally.
One aspect of the case that has elicited almost no attention, however, is a curious aspect of Weinstein’s defense. Weinstein’s lawyers contended that his victims were never subjected to nonconsensual sex. Rather, it was claimed, they were willing partners in a “transactional” exchange of sex for professional advancement in the highly competitive movie industry. In short, Weinstein argued, what the government alleged to be rape was really just an instance of Hollywood’s notorious “casting couch.”
Obviously, the jury did not buy this story. Still, for purposes of discussion, it is worth thinking about the implications of such a defense — of the notion that that these women willingly exchanged sex for a hope of professional advantage — since it is likely to come up again.
Note something quite peculiar about this defense. Even if it had let Weinstein off the hook for the serious crime of rape, it could still have potentially exposed him to liability for a lesser offense. After all, agreeing to give someone something of value in exchange for sex satisfies the legal definition of prostitution (though, admittedly, these kinds of transactions hardly ever get prosecuted in the real world).
And this recognition, in turn, leads to a question: why is it a crime to engage in such transactional sex in the first place? It is quite striking that the U.S., practically alone among Western industrialized nations, criminalizes both the buying and selling of sex. Most other Western legal systems either: (1) criminalize only its purchase (this is the approach in most of Scandinavia, Canada, and France); (2) criminalize some prostitution-related activities such as streetwalking, but do not criminalize the buying or selling of sex as such (the approach in the U.K.); (3) criminalize pimping, but not the purchase or sale of sex itself (the policy in Denmark and Israel); or (4) do not criminalize any prostitution-related activities other than trafficking and forced prostitution, but instead license, impose age limitations and regulate matters of health and safety (the policy in Germany, the Netherlands, New Zealand, and several counties in Nevada).
Although U.S. law to date has maintained its markedly punitive approach to prostitution, that may be about to change. In just the last year or so, Maine, Massachusetts, New York, Rhode Island, Vermont, and Washington, D.C. have all begun to give serious consideration to the possibility of decriminalizing at least some aspects of the sex trade.
It is worth asking why this should be happening now.
Consider the ways in which our law and culture have changed in recent years with respect to the regulation of sex. On the one hand, we have seen an increased punitiveness with respect to nonconsensual sex, including an expansion in the definition of what constitutes rape and sexual assault, and the introduction of new offenses such as human sex trafficking, child grooming, female genital mutilation, and revenge porn. On the other hand, we have seen a general liberalization of laws involving various forms of previously disfavored forms of consensual sexual activity, including the decriminalization of fornication, adultery, homosexuality, and adult pornography, as well as other “vices” such as gambling and marijuana use.
And where exactly does prostitution fit into this picture? It all depends on how one understands the underlying factual dynamics of that practice. If one believes that competent adults should be free to decide to engage in whatever consensual private sexual behavior they wish to engage in – in short, that prostitution is akin to fornication and adultery — then one will want to decriminalize prostitution except where there is proof of actual human trafficking or coercion. But if one believes that most prostitution is inherently coercive — that few people willingly decide to earn a living in such a degrading manner, that many sex workers sell sex, say, in order to feed a drug addiction — then one will be inclined to want to keep prostitution criminal, at least on the buyer’s side.
So, what to make of Harvey Weinstein’s casting couch defense? The parallels to prostitution should be clear: Some might view movie producers and those who wish to work in the industry as competent adults who should be free to reach whatever private arrangements they wish, so long as no actual force or coercion is involved. Others might believe that the relationship between powerful movie moguls (and other similarly situated business and political figures) and their subordinates is so intrinsically unequal, and so likely to be coercive, that sex between them should be uniformly prohibited.
And the problem posed by sex within unequal hierarchical relationships is hardly limited to movie producers. Most jurisdictions have long criminalized sex between prison guards and inmates, police officers and persons in their custody, and health care professionals and patients. More controversial are newer laws criminalizing sex between clergy persons and congregants and educators and (adult) students as well. And even where sex within a hierarchical relationship is not a crime – say, if it involves a high-ranking political official and a staffer – it is much more likely today to lead to censure and firing than in the past.
We live in an age of deep conflict concerning the proper regulation of sex. Most liberals agree, at least in principle, that the law should protect people in their right not to be subjected to sexual contact against their will, while also safeguarding their right to engage in (private consensual) sexual conduct in which they do wish to participate. But how that balance should be achieved in practice is much harder to say, in part because there is so much disagreement about the underlying facts that inform such public policy choices.
If nothing else, we should seek to make our law internally consistent. If it should not be a crime to offer someone a part in a movie in return for sex, it is hard to see why it should be a crime to exchange sex for money “in the street.” Conversely, if it should be a crime to buy sex in the conventional way, then why should it not also be a crime to do so via the casting couch?
As states begin to contemplate the decriminalization of prostitution while simultaneously looking for new ways to prevent coercive sexual encounters, these are the kinds of hard questions with which the law will have to contend.
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