Prostitution And The Rubber Option

Prostitution is one of those crimes that hinge largely on your belief system. If you believe that all prostitutes are forced into it against their will, whether by drugs or pimps, then prostitutes are victims. If you believe it’s possible that it’s just a transaction between consenting adults, then it shouldn’t be a crime at all. If you’re just a prude determined to tell other people how to conduct their sex lives in accordance with your sniffling sensibilities, then it doesn’t matter.

There can be some of each of these, and other, views about prostitution. Like most things in life, it’s not so simple that it neatly fits into one pigeonhole. As advocates like Maggie McNeil have made clear, there are women who choose prostitution as their occupation without shame or excuse. This is what they choose to do, and they don’t give a damn about your Victorian mores. You don’t have to like it, but you have no authority to tell them what they can do with their bodies.

There’s a reason why prostitution is called the oldest profession. The demand exists and always has, and despite your sniffling, it’s not going away. But is the answer to force prostitutes, and their customers, to risk the choice between contracting a loathsome, if not deadly, disease or enhance their time in jail? That’s what Allegheny County is trying to do, as if they’ve finally figured out a way to end the blight.

Samantha Sabatini likely would have avoided time in Allegheny County Jail if she didn’t have 11 condoms with her when she was busted for prostitution in 2012.

The prostitution charge against Sabatini, then 39, was a summary offense. Had it been the only charge, the undercover detective who arrested Sabatini in Pittsburgh probably would have let the Buffalo, N.Y., native go the same night and mailed her a summons to appear in court.

But the detective also filed a first-degree misdemeanor charge of possessing an instrument of crime in connection with the condoms. Sabatini spent several days in jail before negotiating a deal in which she pleaded guilty to the prostitution charge in exchange for getting the more serious, instrument-of-crime charge dropped.

The trick is that the condoms, not the prostitution, gave rise to an elevated charge under 18-907 prohibiting possessing “instruments of crime.”

§ 907.  Possessing instruments of crime.

(a)  Criminal instruments generally.–A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.

A first degree misdemeanor, as opposed to a third degree misdemeanor for prostitution, the possession of condoms means the difference between a summons and a custodial arrest.

Authorities say filing condom-related charges or using condoms as evidence gives police and judges more leverage to win guilty pleas in prostitution cases and allows authorities to take sex workers into custody.

“That can be helpful to investigators in these cases because many of these individuals in this industry are from out of the area,” said Allegheny County Police Superintendent Coleman McDonough. “If we simply release them and proceed by summons, we’ll never see them again.”

The assumption that this is a worthy goal in the first place, as opposed to decriminalizing prostitution, is one question, but the price of “winning” guilty pleas is the health of both prostitutes and johns. Rather than encourage the use of condoms as a public health benefit, or even allow the possession of multiple condoms as evidence of prostitution, the possession itself constitutes a separate, more serious, offense.

The “instruments of crime” statute is one of those curious laws that mysteriously converts an independently innocent object into a crime based upon circular reasoning. A baseball bat is a wonderful sporting good in the hands of a little leaguer, but a weapon if swung at a person rather than a sphere. There is no inherent wrong in a bat, but in how it’s used. To criminalize both the act of swinging it at a person, plus the possession of the bat itself, is to double dip, where the former makes the latter wrong. If the former didn’t happen, the latter wouldn’t be wrong either. Neat trick.

And then there’s the problem of “instrument” being so broad as to encompass anything.

“This is a very broad crime and is often loosely interpreted by the police when they are charging individuals,” said Casey White, a North Shore-based defense attorney who spent two years as a prosecutor in the Allegheny County District Attorney’s Office. “If using a condom is ‘possessing instruments of crime,’ I guess wearing eyeglasses during the commission of any crime could be considered ‘possessing instruments of crime?’ You could really use your imagination.”

Regardless of one’s views of prostitution, even if they’re sufficiently nuanced that one can draw the distinction between adults who choose it as their occupation and those forced into it, there is little question that the use of condoms serves a collateral health benefit for all involved. Would it be better if prostitutes’ lives were put at risk for disease? Would it be better if johns brought disease home to their families?

The simplistic answer is that the risk of disease can be avoided by not engaging in prostitution, or engaging a prostitute. If eradication of prostitution is the goal, then why make it safer to commit the crime when eliminating the crime becomes the only “healthy” option?

The answer is reality, despite the dreams of Puritans and the sad tears of the “human trafficking” activists. There always have been, and will be, adult women who choose to earn their keep by prostitution. Not all, sure, but many, and perhaps far more (and closer to home) than people realize. And there is demand for their services, which may also be closer to home than many suspect. No matter how awful you believe it to be, it exists and will continue to exist because human beings choose for it to exist.

So make it riskier? Make prostitutes choose between health and jail? No matter how prudish one may be, is engaging in prostitution worthy of the death penalty from disease? Since it’s not going away (and it’s not), the only other option is needless incarceration of women for filling a demand in the vain hope that harshness will accomplish what death does not.

19 thoughts on “Prostitution And The Rubber Option

  1. Lee

    Just when I thought there were no lower depths to which ambitious prosecutors could stoop.

    Maybe we need a national “Prosecutor Stand Down Day” similar to those that branches of the military have occasionally held after major safety issues have been disclosed.

    1. SHG Post author

      Prosecutors are making policy choices here that way above their pay grades. Then again, so too are prosecutors who have declined to prosecute anyone charged with a duly enacted law with which they disagree.

  2. Hunting Guy

    Two by Robert Heinlein on the business aspect of prostitution.

    “A whore should be judged by the same criteria as other professionals offering services for pay — such as dentists, lawyers, hairdressers, physicians, plumbers, etc. Is she professionally competent? Does she give good measure? Is she honest with her clients?“

    “Any commodity is certain to be sold—bought, sold, leased, rented, bartered, traded, discounted, price-stabilized, inflated, bootlegged, and legislated—and a woman’s ‘commodity’ as it was called on Earth in franker days is no exception. The only wonder is the wild notion of thinking of it as a commodity.”

    1. Hunting Guy

      I’m sorry but I just ran across this. Maybe it fits.

      Surendra Singh, Indian lawmaker.

      “Prostitutes are of better character than government officials as they do their work after taking money. They even dance on stage. But there is no guarantee that an official will work even after taking bribe.”

      1. j a higginbotham

        But he also compared UP minister and president of Suheldev Bharatiya Samaj Party (SBSP) Om Prakash Rajbhar to a prostitute and accused him of minting money by inducting his family members into politics.
        [And your quote appears to be properly attributed!]

  3. B. McLeod

    “And then there’s the problem of “instrument” being so broad as to encompass anything.”

    Indeed, it is hard to imagine what they could not stretch this to fit.

      1. Jim Tyre

        No one deserved that.

        But my bookie is very concerned about the dozens of pencils he keeps at hand.

          1. REvers

            Nope. The Guardians of the Galaxy soundtracks are all seventies music. When we first saw them in Avengers: Infinity War, Rubberband Man started playing n the background.

  4. Ken Mackenzie

    Topsy turvy. Where I live the service is legal, but if there’s no rubber that’s a criminal offence.

  5. Pseudonymouskid

    Dear Papa,

    These damn criminals don’t deserve to survive. That’s why they deserve HIV instead of condoms. You’re crazy to think they should be treated like the humans they are. Bring back public executions and we’ll really start to sate the truest lust, the one for blood. Everything else is much ado about nothing.


  6. Onlymom

    Hmm first they admitted the law is basically there for the purpose of blackmail and extortion of a targeted group.

    Let’s think about who are the bigger group of criminals….those doing what God made them for albeit for money or the two-faced hate filled individuals who passed and enforce it!

    I know which group is getting my vote and it’s not the first one.

    Second let’s talk about the half million or more stores who sell this targeted item and the million’s of employees who carry out the sales……OH wait there is no companion law making the possession and or sale of these items illegal.

    Guess what law is unethical as well as illegal for everyone except those with an axe to grind and the big three who spend most of their time in the twilight zone


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