The Two P's of Gender Inequality: Prostitution and Polygamy – How the Laws Against Both Are Underenforced to Protect Men and Subjugate Women

By MARCI A. HAMILTON

http://writ.news.findlaw.com/hamilton/20090709.html

Last week, the Dean of Villanova University School of Law, Mark Sargent, tendered his letter of resignation, and the University accepted it. He will not be returning even as a faculty member. According to a number of Philadelphia news sources, a Pennsylvania State Police report states that Sargent was a customer at a brothel when it was raided last November. The owner of the home where the brothel operated was sentenced to 5 to 23 months in jail. Sargent, however, was not charged, apparently because he cooperated with the authorities. Former New York Governor Eliot Spitzer experienced the same fate when it was publicly disclosed that he had frequented a high-priced call-girl ring, spending approximately $80,000. He lost his public job, but he was not charged with any crime.

It appears that those who administer our justice system believe that when a successful man has lost his job because his liaisons with prostitutes became public knowledge, he has suffered enough. Even though what Sargent and Spitzer were doing was illegal, and even though both played prominent roles in the world of the law (with Spitzer even backing an anti-prostitution statute), they were not even given a slap on the wrist. Just a walk.

These men, though, are absolutely essential to make the prostitution system flourish. Without them, prostitution operations would go the way of all businesses that fail to attract paying customers. Conversely, letting these men in high legal positions avoid legal consequences furthers the business. When prosecutors do not charge prominent men like Sargent and Spitzer they are wasting a valuable opportunity to hurt the business of prostitution and to deter the next takers.

The Argument for Charging Prostitutes' Customers with Crimes: The Inherent Harm to Women

As Melissa Farley and Norma Ramos wrote for Newsweek.com on November 10, 2008, prostitutes'; customers "buy and sell women for sex. . . . [and there is] growing evidence that prostitution is emotionally and physically harmful to those used in it." Prosecutorial decisions not to charge "johns" contribute to the degradation and commodification of women and girls.

According to Farley and Ramos, there are volumes of evidence that prostitution arises out of adverse social conditions such as being sexually abused in childhood, poverty, racism, lack of educational and economic opportunities, disability, and a culture that increasingly commodifies girls." In other words, these careers are not about choice, but rather about enduring, and attempting to survive, difficult beginnings and coercive environments.

The argument against charging the male customers appears to be that they have been through enough.

For the prosecutors in these cases, the focus is on the "suffering" of the prominent men who are caught, and whose successful careers crash and burn. Their needs are placed above society's need to stop this cycle of vile treatment of girls and women. Surely, the latter is more socially valuable.

Favoring Privileged Men Over Underprivileged Women in Both Prostitution and Polygamy Cases

For those women who grew up during the 1970s and saw a brighter horizon for women than had ever existed before, these developments should be troubling. Top-level decisions are still being driven by an overly-solicitous concern for protecting men, at the expense of the women and girls involved. When placed in the balance, the men's careers and beliefs are seen to weigh far more heavily than even the women's basic well-being.

The same sort of calculus sheds light on the embarrassingly low number of prosecutions in the United States of polygamists, especially the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), whose practices are well-known. These are inherently unequal relationships – one man is involved with multiple women. It is a gender inequality issue first and foremost.

In recent years, only Texas has indicted more than one religious polygamist at a time, and states where their population is large, like Arizona and Utah, give a pass to religious polygamists all the time. The (typically male) prosecutors weigh the interests of the men in their "religious" practices far more heavily than the interests of the girls who are repeatedly subjected to statutory rape and the women who are trapped in an aggressively coercive patriarchal universe. (They also value their own political careers more dearly than protecting the women and girls trapped in the FLDS system.)

The Core Evil of Prostitution and Polygamy: the Fundamental Lack of Gender Equality

The prosecutors who decline to proceed in both prostitution and polygamy cases also paper over the core constitutional and social evil in both prostitution and polygamy – the fundamental lack of equality between the genders.

In prostitution, the woman is nothing more than an item to be bought and sold. The man controls both the financial transaction and the choice of physical act. His "manliness" is reinforced while her humanity is reduced to being a source of personless pleasure.

In polygamy, also not a victimless crime, the practice is built on the subjugation of women to the men';s needs and demands. Moreover, for many of the religious polygamists, the women are nothing but the means to a particular doctrinal end – creating more children to increase the man's odds of getting into heaven. Again, the men control the finances and the women are commodities, carrying out the sexual goals of the men. There can be no gender equality in this scenario, which is incapable of being squared with any viable theory of women's rights.

Infamous FLDS polygamist Winston Blackmore is currently on trial in Canada for violating the laws against polygamy. His lawyer has put together a clever, if sickening, strategy of arguing that poor Winston has been the target of prosecution "shopping." In other words, Blackmore himself is supposedly the real victim here. When one ties that theme to the FLDS's public relations cry of "religious persecution," one almost expects Blackmore to walk out of court one day, singing, "Why's everybody always pickin' on me?"

It is an intoxicating cultural combination constructed to suppress the fact of the second-class status of women. The Sargent and Spitzer universe is hardly different. Whether the man's motivation is physical, spiritual, or both, the law is being applied to prostitution and polygamy to perpetuate the entrenched preference for men's welfare over women's well-being. The way in which the law is being pursued in these arenas shows that the subjugation of women in favor of powerful men is not a pale memory from the past. To the contrary, male chauvinism continues to thrive and drive prosecutorial results.

Women will not be the equal of men in the western world before this insidious and cynical approach to the law of prostitution and polygamy ends.

This fine analysis came through the Dignity listserve. Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.