The Law and the Skin Trade in the Windy City

Adventures of the Straight Player in a Crooked Game

By J. D. Obenberger, Attorney at Law
© 1999 J. D. Obenberger, All Rights Reserved

I don’t have any tattoos. When I was growing up, they weren’t very trendy except among, maybe, bikers, roofers, asphalt pavers, Marines, gas station attendants, and the more robust of truck drivers’ wives. Not that I ever had anything against them. As a matter of fact, it was almost my hobby to ask the cashier at the Clark gas station how Sally was doing whenever I saw a tattoo of a girl’s name like “Sally” on the guy’s arm. The answer was always the same: The guy hadn’t seen Sally in a long time. And a lot of tattoos seem to fit that pattern, somebody’s attempt to try to make externally permanent something that they know, deep inside, isn’t going to last forever.

Anyway, tattoos are fashionable enough these days among a lot of people who wouldn’t be caught dead on a Harley or taking payment for Pump 4.

And I suppose that if I ever get around to getting a tattoo, it will, predictably enough, be some words. And the words that tempt me the most came from the man of a man far greater than me, words I first heard as a schoolkid, and words that set the course of my life. Those words are, “Restraint in the Pursuit of Justice is No Virtue.” The man was Barry Goldwater, a United States Senator from Arizona who got creamed when he ran for President against Lyndon Johnson. Our whole national history would have been much different, and I think changed dramatically for the better, If Goldwater had won. He was a man who stood for the principle of individual liberty more tenaciously than any other American political figure on the national scene in this century. He was a good and courageous man in every sense. His conservatism only seemed radical because the kind of individual freedom that our nation’s founders meant to bestow on us as a legacy forever under the Constitution, has itself has become a radical idea in this era of prevalent and still-increasing government control over every sphere of life.

And I suppose that if I ever do get any of those words permanently installed on my hide, it may be just like the guy trying to hold on to Sally. It will probably happen the day after I lose faith that Justice can prevail. I pray dearly that such a day will never come.

But it does get discouraging enough.

Why is it that, sooner or later, every town with bars that conduct “fashion shows” comes in to harass and intimidate the women who perform them?

For those who aren’t familiar with these shows, I am not talking about runway models with the latest fashions from Paris. The shows I am talking about take place in generally blue-collar bars frequented by working men, and it seem like most, but not all of them, are Southwest of the Loop. Though some might call them tacky, they really seem pretty harmless in comparison with other things that go in and near blue-collar bars. The performers are walking around in scanty little costumes that strategically cover most or all of the “specified anatomical areas”, or at least the areolas and most of the breast, and crotch. They also seem to wear pantyhose to cover the buttocks in many of the shows, or so I’ve heard. The action here is to sell little allegedly-private dances in wide open public areas with generally no seclusion, and there has been reported some selective flashing of the specified anatomical areas.

The reports that I am hearing include stories about teams of police coming in and indiscriminately arresting dancers, bartenders, and even customers, with such not-so cute verbal harassment such as calling the customers who are paying to look at scantly-clad girls dance, “Sick F**ks”. Imagine that. All these perverts out there in working class bars actually sick enough to look at girls! I know of at least one such bust in which police dogs were brought in and kept barking in immediate proximity to handcuffed arrestees sitting on the floor. They can remember that the next time they want to look at a girl entertain.

Now to effect an arrest, the officer has to have some charge in mind. Because, frequently, there really aren’t any laws being broken, it forces the officer in question to get really creative and imaginative.

Like for example “Public Indecency” because the dancer allegedly showed areolas, breasts, etc. There is a serious problem for the officer here, because the Illinois Courts have authoritatively held that even when complete nudity is shown in a commercial erotic display, it simply does not violate our Public Indecency statute. (It’s amazing, but dancers have been pleading guilty to this for years, either because they don’t have a lawyer, or they have a lawyer who knows nothing about this branch of the law and the cases interpreting the statute. I know of at least one dancer who plead to this last month!)

Like, for example Obscenity. Now this is amazing. I have seen a sworn criminal complaint alleging that a dancer committed an obscene performance because she exposed her breasts. Mind you, that on a second conviction, this would be a class 4 felony that could put a dancer in the Department of Corrections for one to three years. For bare breasts? Isn’t this what goes on at dozens of clubs in this State, many of them with local licenses, seven days a week? The test for obscenity in expression, under cases decided by the United States Supreme Court, and defined in the Illinois Compiled Statutes, in a version close to the Supreme Court definition, requires an activity that appeals to the prurient interest and depicts in a patently offense way, offending statewide contemporary community standards, frankly sexual acts, sadomasochistic or otherwise, or lewdly displaying the genitals. So when are breasts genitals? Maybe the day after brushing a groin is sex?

Or prostitution. Prostitution? Isn’t that like, sex? Well, here we have to join President Clinton and say that it depends on what you mean by “sex”. We all know that intercourse and oral and anal sex for money are illegal, and I suspect that it’s also common knowledge that, after manual stimulation was being offered in some massage parlors in the seventies, the legislature added language to the definition of prostitution banning the “touching or fondling” of the sex organs for the purpose of arousal or gratification. Now the position of the officers on an arrest is that a knee or thigh or butt of a dancer, covered by clothes or pantyhose or not, that grazes the crotch of a customer, covered by pants and underwear, is such a touching, and is, in their view, the kind of sex that the prostitution statute covers. Maybe they are right. Certainly, the safest course of action for dancer and bar is to not permit this kind of contact, and that’s what a cautious lawyer - - including this lawyer! - - would advise his clients. (But since this matter hasn’t been decided by the Illinois Courts, and to the best of my limited knowledge, has never gone to trial, no one can be sure yet.) But, it’s not exactly the easiest thing to observe. The statute doesn’t say “groin” or “crotch”. It talks about touching or fondling “sex organs”.

Usually, the entertainer is guilty of no criminal misconduct at all for the act the little dance, even if there is some flashing. To be absolutely sure, check local ordinances as well.

The licensee of the liquor establishment, however, is in a different position. He is best advised to consult with a lawyer about local ordinances that could cost him his license for the shows and the flashing. The rights, duties, and responsibilities of liquor license holders will be the topic of another article in this series.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com