Opinion: Why Spitzer Should Be Prosecuted

Former New York Governor Eliot Spitzer resigned in March 2008 after it was discovered that he had used women in prostitution, a violation of New York's comprehensive anti-trafficking law. Last week, we learned that the former prosecutor will not be prosecuted for breaking the law. (Click here for reader response on this story.)

Mr. Spitzer feels that he has paid for his "sins," as he put it. His description of prostitution as sinful carefully positions the buying of a woman for sexual use within the realm of tawdry scandals rather than the harmful sexual exploitation that it actually is. Although Mr. Spitzer apologized to New Yorkers, his friend, lawyer Alan Dershowitz, has said the governor's use of prostitutes is "no big deal."

U.S. Attorney Michael J. Garcia's decision not to pursue criminal charges against Mr. Spitzer for buying women in prostitution is a stunning betrayal of the public trust. Citing precedent, Mr. Garcia indicated that the Department of Justice (DOJ) does not typically prosecute johns who buy women from pimps, except in cases of prostitution of children. ("In light of the policy of the Department of Justice with respect to prostitution offenses and the longstanding practice of this Office, as well as Mr. Spitzer's acceptance of responsibility for his conduct, we have concluded that the public interest would not be further advanced by filing criminal charges in this matter," he said in a statement.) The DOJ also chose not to charge Mr. Spitzer for transporting a woman across state lines for the purpose of prostitution—a violation of the Mann Act. Congress might be interested to learn that its laws are being effectively nullified by DOJ policy.

Prosecutorial discretion cannot be based on gender bias, nor can it eliminate whole classes of people that the law was designed to protect. By doing so in this instance, the Justice Department has sent a clear message that it is acceptable to buy and sell women for sex; this in the face of growing evidence that prostitution is emotionally and physically harmful to those used in it, and that prostitution and sex trafficking are inextricably linked— prostitution is the endpoint of all sex trafficking.

Prostitution is not a victimless crime. The DOJ policy is out of step with 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. Now we can add to that list a legal system that gives a wink and a nod to wealthy and powerful men who buy women as merchandise for their sexual use.

Even when the pimps are alleged to be running a high-end, high-class call-girl service, they still sell women for sexual use and still take their cut. And those in it, like Ashley Dupré—a young woman whom Mr. Spitzer bought for sex—more often than not, have entered prostitution as a result of long-term abuse, neglect, and economic desperation; a situation that worsens disproportionately for women as the economy declines. Ms. Dupré ran away from what she has described as an abusive home, and her lawyers have confirmed she was filmed by "Girls Gone Wild" founder Joe Francis, who pleaded no contest to child abuse and prostitution charges stemming from his work, when she was 17. Ms. Dupré later met up with the pimps and johns at Emperor's Club VIP in New York, a prostitution ring that sometimes moved women from the United States to Europe on what they called "travel dates" rather than human trafficking.

While President-elect Obama rejects prostitution and trafficking, as abuses of human rights, and calls for better tools for prosecuting within the United States, the U.S. Attorney does not even use the tools he already has and gives johns like Eliot Spitzer a free pass. At the August 2008 Candidates' Summit in California, in answer to a question from Pastor Rick Warren, Obama saw the intimate connection between prostitution and trafficking: "What we have to do is to create better, more effective tools for prosecuting those who are engaging in human trafficking and we have to do that within our country. Sadly, there are thousands who are trapped in various forms of enslavement, here in our country, oftentimes, young women who are caught up in prostitution. So we've got to give prosecutors the tools to crack down on these human trafficking networks. It is a debasement of our common humanity, whenever we see something like that taking place."

By contrast, Mr. Garcia and Justice Department policy turns a blind eye to men like Spitzer, whose demand for paid sex drives the sex businesses that exploit mostly young, mostly poor, most often women of color, in prostitution.

Mr. Garcia's approach is at odds with a growing global awareness of the harms of prostitution, including its adverse effects on the safety of nonprostituting women as well as those in it. Prosecuting johns does make a difference, as Sweden has discovered. Sweden levies serious legal penalties against johns whom the Swedish law rightly views as predators, while decriminalizing the person being purchased. Since the Swedish law on prostitution was passed in 1999, prostitution there has been reduced by more than 40 percent, according to a conservative estimate by the Swedish police. Women in prostitution are now offered exit services instead of arrest. And trafficking of women for prostitution into Sweden has precipitously declined since the law was passed. Sweden now has the lowest rate of sex trafficking in the European Union.

Mr. Garcia's serious error reflects the unjust approach of the Justice Department toward the most vulnerable among us. His decision is a gift to human traffickers everywhere. Its message is: men, you can buy a woman for sexual use as long as you're not caught and as long as she has had her 18th birthday. If by some mistake you get caught, then quit your job, say you've sinned, and we'll give you a get-out-of-jail-free pass.

Melissa Farley is founder and executive director of the nonprofit group Prostitution Research and Education in San Francisco.

Norma Ramos is the coexecutive director of the Coalition Against Trafficking in Women in New York.