The Law and the Skin Trade in the Windy City

The Law of Prostitution - Part One

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

When did prostitution become illegal in Illinois? That is not as easy a question to answer as you might think. When Illinois first became a State, one of the first acts of the first State Legislature was to adopt most of the Common Law of England.. The Common Law Reception Statute is still found in the Illinois Compiled Statutes at Chapter 5, Section 50/1. “The Common Law” is the body of written decisions by judges which explained the law, rather than statutes passed by Parliament, Congress, or legislatures. (The word “Common” in Common Law meant that the rules of law applied in common to all of the lands in the King’s realm.)

This seven-hundred-year old tradition of Common Law has become the backbone of the law all through the English-speaking world from Canada to New Zealand, and is the foundation of the law in every American State except Louisiana (which because of the influence of its early Creole settlers, derives the inspiration for its law from the Code Napoleon of France.).

Under Common Law, Prostitution, as such, just wasn’t against the law.

The Common Law did have a few things to say about prostitution, but mainly this was about what the law then viewed as the “nuisance” of public solicitation for prostitution and what it perceived as organized exploitation of women in brothels. The discrete and private making of arrangements for private meretricious acts, outside a brothel, was just not illegal. If the deal had been made out of the public way, and the act took place out of public view, and if it wasn’t a part of a fixed house of business, Illinois law took the position that it was nobody’s business. Police had better things to do and other and bigger fish to fry. Certainly it wasn’t a crime.

Back then, just as now, the coins all had the word “Liberty” stamped on them. The coins were made of silver and gold back then, and they were worth more than our coins today because of their content. So, apparently, was the meaning of the word “Liberty”.

Then came the Twentieth Century. And in the early part of this century, it was not so much the financial end of prostitution that the law concerned itself with, it was what the Illinois Supreme Court called, in 1917, “. . . [T]he act or practice of prostituting or offering the body to an indiscriminate intercourse with men.” People v. Rice, 227 Ill. 521, 115 N.E. 631. Thus, issues of morality, no doubt influenced by the Victorian Age, began to creep into Illinois law. It wasn’t the money: It was what the Victorian mind viewed as “slutty” behavior that was to be targeted by the criminal law.

The modern era in Illinois prostitution law began with the adoption by Illinois of the Model Penal Code in 1961. Chapter 720, Section 5/11-14 of the Illinois Compiled Statutes is the modern statute against prostitution. It has been amended seven times since it was first adopted, and each of these has generally expanded the scope of what the law prohibits. Section 11-14 is one of the more serious Class A Misdemeanors, because, after a person has twice been convicted of the offense, it may be charged as a Class 4 Felony; Only a comparatively few Class A misdemeanors can be escalated into felonies by repeated violation.

When charged as a misdemeanor, prostitution is punishable by zero to 364 days confinement in the County Jail, a fine from zero to $2,500, and up to two years probation. If charged as a felony, it may be punished by one to three years confinement in the Illinois Department of Corrections, a fine from zero to $25,000, and a term of probation from zero to thirty months.

There are three basic elements to the offense of prostitution.

First, there must be an offer, an agreement, or an act;

Second, it must be for an “act of sexual penetration” as defined in the part of the Criminal Code that defines criminal sexual assault or any touching or fondling of the sex organ of one person by another person for the purpose of sexual arousal or gratification.

Third, it must be for money or any thing of value.

The “act of sexual penetration” definition covers all of the kinds of sexual conduct that most people could imagine, and then some. In order to do justice to the incredibly inclusive language of the statute, let me quote the definition verbatim: “ ’Sexual Penetration’ means any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth, or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio, or anal penetration.” I can only imagine how many lawyers spent how many hours in how many conferences and in mulling these words over before this language became law.

A manual stimulation isn’t any less “touching or fondling” just because the male wears a condom, nor would it seem to be any less illegal because the provider wears gloves (does this ever happen outside that scene in Animal House in the sports car?) Accordingly, a touching or fondling of the penis, through the pants, in the kind of crotch dancing that some clubs have called “contact lap dances” is probably no less a violation of this statute when done for money. Cook County Vice arrested dancers in at least two clubs for this kind of dance in 1999, and charged them with prostitution. Word from the grapevine is that the criminal charges were dropped with some “voluntary” community service a warning that future instances would be prosecuted criminally.

These are the basic principles involved in this offense. There is a great deal more to the subject. In future articles, we will discuss many other areas of the law relevant to the adult entertainment industry, including more specific application of this statute to particular issues.

In the meantime, don’t plead guilty to any prostitution or indecency-related offense (including street solicitation of a decoy) until you have spoken to a lawyer who knows this area of the law, and until he or she has obtained discovery, i.e. police reports, and has explained the case to your satisfaction - - - especially first time offenders. There are defenses, and people do plead “not guilty” and are often acquitted in Chicago-area courts. The law presumes every defendant to be not guilty, and any criminal lawyer worth his salt will not plead his client guilty unless and until he has investigated into the allegation, and unless and until he finds that it makes more sense for his client to plead guilty. This is not usually rocket science: Your lawyer should be able to explain to you, in a way that makes common sense, why he thinks it likely that your chances in a trial are not good.

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