Prosecutorial Double Standards – He Gets Off, She Goes to Jail

Posted on November 7th, 2008 by Katherine Franke

Seems he’s going to get off
We learned yesterday that due to Michele Hirshmans great lawyering on behalf of her client and former boss, the former Governor of New York, Eliot Spitzer will not be prosecuted by Michael Garcia, U.S. Attorney for the Southern District of New York. Not under the Mann Act, a 1910 federal law that criminalizes the transportation of women across state lines for “immoral purposes”; not for using public or campaign monies to pay for sex; and not for “structuring” or concealing his payments for sex in such a way that he would avoid federal reporting requirements for transactions over $10,000.

It is worth noting that it isn’t typical practice of the U.S. Attorney’s Office to issue a press release announcing that it will not prosecute someone. Even more interesting is what Garcia said in the statement:

Eliot Spitzer has acknowledged to this Office that he was a client of, and made payments to, the Emperors Club VIP. Our investigation has shown that on multiple occasions, Mr. SPITZER arranged for women to travel from one state to another state to engage in prostitution. After a thorough investigation, this Office has uncovered no evidence of misuse of public or campaign funds. In addition, we have determined that there is insufficient evidence to bring charges against Mr. SPITZER for any offense relating to the withdrawal of funds for, and his payments to, the Emperors Club VIP.

What he’s saying here is that Spitzer has admitted to violating the Mann Act, but that Garcia has determined not to prosecute him – he offers no reason for not doing so. As for the structuring charge, Garcia tells us not that the investigation cleared him of any guilt, but that there was “insufficient evidence” to bring charges. Recall how aggressive Spitzer was in prosecuting “prostitution rings,” accusing his political foes of illegalities, and going to trial against Bank of America traders – all with something less than clear and convincing evidence. The prosecution against Spitzer gets dismissed for insufficient evidence even though he’s admitted to the crime, yet had his own office been investigating a case such as this, you could be sure that he’d be relentless in taking it to trial.

What he did was sex, what she did was a crime
One way to understand this is that Michael Garcia, the U.S. Attorney in New York, has decided that when Eliot Spitzer paid to have sex with the women who worked at Emperor’s Club V.I.P, he had sex and they committed a crime. In fact, it is the policy of most federal prosecutors to charge sellers, but not buyers, of sex with a crime. Last I checked, the federal government hesitates not in the least to prosecute both the buyers and the sellers of illegal drugs, and both the givers and the receivers of bribes. Yet sex, it seems, is different.

Garcia’s press release ended with the moralizing conclusion:

In light of the policy of the Department of Justice with respect to prostitution offenses and the longstanding practice of this Office (not to prosecute the Johns, but to aggressively prosecute the women who sell sex), as well as Mr. SPITZER’s acceptance of responsibility for his conduct, we have concluded that the public interest would not be further advanced by filing criminal charges in this matter.

Nevermind that the women who were prosecuted in this case and who pled guilty in exchange for possibly lighter jail time have “accepted responsibility for their conduct”.

Two ways to confront this double standard
Many will be inclined to argue that the sexist double standard in the prosecutorial practices of the U.S. Attorney’s office can only be cured by Spitzer’s prosecution under the Mann Act, among the other things with which he was being investigated. Yet to my mind this intuition is dead wrong. Instead, we should see this as a moment to highlight the case for decriminalization of sex work. Sometimes a problem calls out for more law, other times it calls out for less. This strikes me as more a “less law” than “more law” kind of social issue.

Aggressively prosecuting sex workers while refusing to enforce the criminal laws against Johns surely amplifies the vulnerabilities of sex workers – rendering them more available to exploitation from middle-persons, or pimps, from police and from their customers. It makes it more difficult for them to insist on safer-sex practices with their clients – remember Eliot Spitzer insisted refused to wear a condom with the women with whom he paid for sex. And it’s sexist. It represents a double standard as old as the hills.

But to insist on greater prosecutions of Johns won’t in any material way improve the precariousness of sex workers. Instead we ought seriously consider decriminalizing sex work. This won’t mean that we exile the criminal law from this domain entirely – workplace crimes can take place in this work just as they do in stock trading (fraud) or in “regular” workplaces (assault, rape, and other laws regulating health and safety). But instead, it means seeing this as work, first and foremost.

Who else loses here? Sex
In the end, the women are in jail, Eliot is still on Park Avenue, and the reputation of all is ruined – especially that of sex. As Lauren Berlant has blogged: a scandal of this sort damages the reputation of sex.

Just as the criticism of Larry Craig was fueled in some part by homophobia, it like this was fueled by erotophobia. Something wrong with liking sex – when these scandals happen people project their discomfort with sex – it is a more inappropriate drive than the others – ambition, eating etc.

So when a sexual scandal happens, people indulge in projections of what makes them uncomfortable about sex: its weirdness (I was just standing up and talking and now I’m doing this?), its sloppiness, its awkwardness, its seeming disconnection from so many other “appropriate” drives (to eat, for example). Then there’s one’s fear of becoming a mere instrument of someone else’s pleasure, in a way that one doesn’t want.

A role for Robert Morgenthau?

Lest we forget – adultery remains a crime (albeit rarely prosecuted) in New York. Maybe there’s a role for Manhattan DA Robert Morgenthau here. Remember, according to the New York Court of Appeals – men who like sex with women need the discipline of marriage and adultery laws to tame their heterosexual urges. See Hernandez v. Robles.


  1. Thanks for the ping! But you copied something garbled so I thought I’d put the real paragraphs here…you don’t have to accept it as a comment if you don’t want and instead make the first pgh grammatical…(english teacher pride)… Great blog! I’ll put you on my blogroll. Gratefully, LB

    Instead, what stories like this really do is to damage the reputation of sex. Whenever there’s a sex scandal, I feel sorry for sex. I felt sorry for sex during the Larry Craig brouhaha last summer. What if he liked being married and procreating and giving anonymous head? What if that was his sexual preference? What if he was not really gay, as he claims, but had sexual desires that seemed incoherent from a normative perspective? Some of the response to Craig was like the response to moralists like Jim Bakker, Ted Haggard, and now Spitzer—moralists deserve to suffer the same force of negative judgment they wielded on others. Shame on us? Shame on you, ha ha! But lots of the response was sheer homophobia. And all of it was sheer erotophobia.

    Erotophobia, fear of sex, tinged toward hatred of sex. Public sexual scandals revel in the hatred of sex. Disgust at the appetites. The strangeness of sex, the ordinary out-of-controlness of sex acts and sex drives that we all experience (if we’re having it). Actually, usually, sex is not a threat to very much. But it feels like a threat to something, which is why so many people stop having it.

    So when a sexual scandal happens, people indulge in projections of what makes them uncomfortable about sex: its weirdness (I was just standing up and talking and now I’m doing this?), its sloppiness, its awkwardness, its seeming disconnection from so many other “appropriate” drives (to eat, for example). Then there’s one’s fear of becoming a mere instrument of someone else’s pleasure, in a way that one doesn’t want.

  2. […] had the same thoughts about Eliot Spitzer, back when the U.S. Attorney decided not to prosecute him for any crimes related to the interstate […]


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