Courtrooms in the Clouds:
Judges Who Know the Difference Between Dirty Dancing and Crime

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

There aren't many places in the world where justice is administered from the high floors of skyscrapers, but Chicago is one of them. Out of the Courtrooms in the Clouds comes significant news this month concerning a matter that I have written about in these pages before.

Some time ago, I also wrote about the so-called "fashion shows", a kind of erotic dancing that goes on in largely blue-collar bars with an emphasis on the bumps and grinds. My article was largely critical of the efforts of local police to harass this dancing. Since then, I've been involved in the defense of several defendants, fashion show dancers, bartenders, and alleged owners.

Cook County Sheriff's Police Vice recently conducted a relatively massive campaign designed to shut this dancing down, conducting raids and making arrests of dancers, bouncers, fashion show service owners, and bartenders, charging them with prostitution, keeper of a house, pimping, and the like. Arrests were made on this basis during two nights in a number of such establishments in Melrose Park, and Stone Park, and elsewhere. Now, this is not the first time Cook County Vice has filed such charges, having done so before on the basis of dirty dancing in at least three or four of so-called gentlemen's clubs. In those cases, the performers and owners blinked and backed down, and charges were ultimately dropped in exchange for a quiet acknowledgment of guilt, a promise not to repeat the dirty dancing, and sometimes informal community service.

Just so we are clear, the matters of concern to the law enforcement officers were not any acts of sexual penetration, oral, vaginal or anal, nor any direct contact with anybody's sex organs for the purposes of sexual arousal or gratification. It was dirty dancing. Grinding. Contact or friction dancing or whatever you want to call that conduct that we all remember from our youth. What I've seen in the complaints they charged as crime arises from acts taking place openly in public parts of the establishments and nothing in the charges that I've seen suggested the removal of any clothes at all nor any actual touching or fondling of anybody's sex organ as those terms are commonly understood. We're not talking about anything in any back room or secluded place, and no one accused the dancers of anything remotely like "sex" under any common understanding of that term, or even by Bill Clinton's more resticted view of what that word means.

They arrested these women as common whores. They swore under oath that the defendants were prostitutes in criminal complaints. They described the dancing of these women as prostitution under oath because they did dirty dancing for money. They booked them and photographed them and printed them and locked them up and sent reports to the State Police branding these women as whores. And when the women complained to the officers that they weren't prostitutes, the deputies told them to go tell the judge.

So they did.

And guess what.

The judges agreed with the dancers.

The cases that went to trial wound up in acquittals. The judges made it pretty clear that even if the deputies on the Vice Squad couldn't tell the difference between dirty dancing and prostitution, they could. We're not talking about just one judge that someone could brand as "soft" or "lenient". Wherever the cases went to trial, the result was acquittal. I've heard an account of one of these cases, in which the lawyer was trying to get a continuance for trial on another day, and the judge just looked at him and told him point blank that he intended to try the case and find his client "not guilty" then and there without any delay at all. And that's exactly what the judge did. The State's Attorney's office looked at the results and at the statutes, and then it started to SOL the cases that remained. So far, no one has determined whether the deputies acted with probable cause or without it when they conducted their arrests.

Now, you should know that the results of individual trials don't establish any kind of binding legal precedent, and it's entirely possible, maybe even likely, that some law enforcement officers will continue to make arrests for dirty dancing. It's possible that somewhere a judge might be convinced of guilt on these kinds of facts, and so these decisions don't give anyone a "get out of jail free" card. But I think that we all know, and common sense dictates, that our legislature didn't intent to brand dirty dancers as prostitutes, and that these judges were clearly and obviously right. For the record, the touching or fondling of sex organs for money, or the offer or agreement to do so is the crime of prostitution. The issue at hand is whether the kind of dirty dancing taking place in fashion shows is necessarily that kind of touching or fondling. Since those terms are not further defined in the law, it is the common and ordinary understandings of those words, which will be given to them by courts. (The deputies are held to understand the ordinary and common meanings of those words, too.)

Our State Legislature has bigger fish to fry than dirty dancing, and it is only sensible that the Judges agreed that this isn't part of what state law defines as the Class A misdemeanor crime of "Prostitution".

I would also like to think that our law enforcement officers and agencies have bigger fish to fry than the often pitiable, generally broke, mainly single mothers who perform in these fashion shows, frequently women doing this precisely to avoid such worse and illegal alternatives as prostitution as they support themselves and their children. That numerous officers, probably dozens, spent large numbers of hours in operations conducted in as many as eight locations in an effort to bust the not-very-secret and (in the estimation of at least some of the judges) not-necessarily-illegal business of fashion shows is a matter that does not reflect well on the judgment of those who call the shots. There is still enough real crime out there to engage and challenge the skill, ingenuity, and bravery of our sworn officers, and until the public safety is assured by the suppression of that actual crime, it is only sensible that they devote their valuable law enforcement resources to real crime instead of imagined crime.

And if some of them are really outraged about young women using their looks to make a living, they would be well advised to put as much energy into chasing, catching, and jailing deadbeat dads as they do into arresting fashion show and gentlemen's club dancers. Success in that endeavor would bring a big chunk of this particular niche of adult entertainment to a halt. It's about as hard to catch a fashion show dancer as it is to catch a butterfly. Catching the dads is a bit more elusive, the statistics are harder to achieve, and I suspect that's why the dancers make so inviting a target in comparison. But they're just not fit targets for the wrath of the law.

You see, young females never sit at their chairs in school and dream about doing a fashion show in an industrial bar when they grow up. It's a choice to survive that is made typically at a tough point in life, often a point of desperation, and a choice that is made in comparison with far skankier and often more dangerous alternatives. It is not a fun job and it is not a glamorous way of life. At least not for long. It is a career choice for which many of the dancers have been prepared by a lifelong pattern of the most wretched kind of abuse. Some surely use this as an entry point into more serious, and eventually illegal, involvement in adult entertainment, but many simply do not, and engage in dancing only until a temporary financial crisis passes. To yet others, it reflects a way of escaping from worse livelihoods and environments filled with the unremitting potential of physical harm. Until the social problems that impel such a choice are removed, and in consideration of the fact that the women harm no one and put no one at risk in these dances, and under the reading of the statute given to it by the judges involved in these cases, it seems to me that, no matter how unwise a choice it may appear to anyone else, it is a valid part of the performer's liberty in our free society to become a fashion show dancer and to engage in that trade with as much gusto and professionalism as she can bring to the task, and that she can do so well within the law of our State.

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