The Law and the Skin Trade in the Windy City

Changes in Laws on "Sexual Morality"

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

Well, when we gather round the Christmas Tree this year, at least we will be able to gratefully know that our Illinois State Legislature hasn’t been neglecting the moral needs of Illinois residents (as the Legislature sees them) this year, and they have thoughtfully left us a few new pieces of moral legislation to open under the tree, just in time for their effective date of January 1, 2000.

Public Acts 91-274 and 91-498 are important for three changes they bring to Illinois laws regarding prostitution.

First, prostitution and the offenses closely related to it --- which have been Class A Misdemeanors on the first and second conviction, and Class 4 Felonies on the third and subsequent conviction, if that’s how the State decided to charge it --- now will all become Class 4 Felonies on the second conviction. That’s the difference between going to jail for up to one year, and being sent to the Illinois Department of Correction for one to three years. That’s also the difference between a maximum fine of $2,500 and one of $25,000. A felony conviction is serious business. This change in the law relates to prostitution, patronizing a prostitute, pimping, and soliciting for a prostitute, and the language escalating the seriousness of the crimes, says that any combinations of convictions for any of them can raise the second conviction to a felony.

Second, any of these prostitution offenses that take place within 1,000 feet of “real property comprising a school” will now be a Class 4 Felony. Not within 1,000 feet of a school: Within 1,000 feet of the lot line. Not within 1,000 feet of the lot line for just elementary and high schools: Nothing in the Statute limits it or prevents it from applying to bartending schools, beauty colleges, or a martial arts academy. (You will remember that one of the factors that the City of Chicago used in its litigation that ultimately closed Top Shelf, a strip joint on Orleans Street, was that it was within 500 of feet of a building that contained an obscure, mail order correspondence school on one of the upper floors of the building.)

Yes, this law applies 1,000 feet from the lot line of every school in the State, not just schools with little kids. And not just for contacts in public places. This law will apply in condos, lofts, mansions, offices, apartments, hotels and motels, and many other places that don’t have any direct proximity to schools, whether in a basement or on the eightieth floor of a building in the Loop. (There are eight blocks to the mile in Chicago, making each regular block about 660 feet in length.)

Third, the statute authorizes local police to impound for a minimum of two hours any car used in soliciting for a prostitute, and then to permit the driver to reclaim it by paying $200, which includes any towing fee. The act provides that the $200 shall be distributed to the unit of government whose officers made the arrest. The statute authorizes the return of the $200 if the defendant is found not guilty or the charges are dismissed. (This is actually better than the City of Chicago policy on impoundments in these kinds of cases, in which the arrestee doesn’t get his car back for less than $500, and if he gets acquitted, he has to file a lawsuit to get anything back.) You can expect to find this provision used mostly in the smaller cities, including non-home rule cities and villages, that don’t already have their own automobile forfeiture laws.

A few observations are in order.

The first is that this legislation is a typical example of legislators huckstering for the support of the “moral right” with new laws that do little or nothing to actually solve a problem, cost a lot of money for the incarceration of people in state prisons who have not been convicted of the serious kinds of crime for which prisons are built, and which don’t even make much sense. (It’s hard, though, for a legislator to vote “no” on bills of this nature without a fear that he will then look to his constituents like he is pro-prostitution. And that is why, in recent years, every kind of garden-variety of misdemeanor is being upgraded to a felony by the legislature.) The police say that they need stiffer penalties in the laws. In general, I disagree at this point: It is always easy to pass off blame, and I think that this is exactly what is going on. More effective enforcement of the laws that already exist can provide a free and safe society; Effective law enforcement is harder to accomplish than by just passing a law or spending money in a police budget.

If the people of this State have been vocally demanding the imprisonment of prostitutes and wish to house them, feed them, and provide them medical care in State prisons for years, it is an outcry that I have not heard. No, when it comes time to justify the law enforcement and corrections budgets, I don’t think that the agency chiefs will be bragging to the Trib and Sun-Times how many prostitutes are serving terms. They will be talking about the violent offenders.

Petty offenders should not be incarcerated with career criminals, and if we do so, there surely will be a heavy cost that all of us will endure down the road: Prison is a university that offers a post-graduate course in crime. Society sends people to the Department of Corrections hoping for reform, but frequently, it is a now hardened, disillusioned and more savvy person with truly criminal aspirations that returns to society.

If there is a problem with prostitution near schools and in the presence of schoolchildren, it would be a serious problem that would need prompt attention, but if it is really true that this is happening, I have heard nothing about it. I don’t really think that this legislation is aimed at street prostitution.

My more cynical nature tells me that the real purpose of that change in the law is to threaten sex-trade workers with prison on the first arrest; The scenario will work like this: Law enforcement will rent a room in a hotel within 1,000 feet of, shall we say, Northwestern University’s downtown campus, or the DePaul University’s Jackson Boulevard building, or the Art Institute, or some other educational institution, perhaps as humble as an obscure business college or beautician school, where they will set up a felony. They will call escort services, get a visit, solicit an escort for an act of commercial sex, and then arrest this woman on felony charges. Instead of an I-bond on Maxwell Street or the payment of a $100 bond, she will go to County and have felony bond set at 26th and California. Instead of contesting the charges or pleading guilty in exchange for expungible misdemeanor supervision, she will consider herself lucky to take a misdemeanor conviction, which, like a tattoo, is a forever thing in Illinois.

There is something more than ESP in this prediction. Enhanced penalties for drug trafficking near schools were sold to the legislature as a measure to protect school kids, but the reality of how they are used is something quite different from the protection of school kids. Just as soon as that statute became law, enforcement officers started setting up their own drug buys, grown-up to grown-up, in a car a block or so away from a park or school just to get the enhanced penalty.

Let’s look at the whole forest instead of just the trees. Many women have gotten arrested once and only once for this kind of offense, have considered it a serious mistake, have cleaned up their record with an expungement, and have gone on to lead very mainstream lives without the fear of such an arrest coming back to haunt them. Now it is far more likely that the dispositions will all become convictions -- leaving a permanent stigma on the people arrested. This will do more to keep women out of the mainstream and from going on with their lives, and I think that this is a serious mistake.

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