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Bryan Fair - University of Alabama School of Law

About Bryan Fair

Professor Bryan K. Fair joined the University of Alabama School of Law in 1991 and was named the Thomas E. Skinner Professor of Law in 2000. He teaches courses on constitutional law; race and racism; sexism and American law; and the First Amendment. He also directs the University of Fribourg, Switzerland/UA cooperative educational program. Professor Fair served as an assistant vice president for academic affairs at The University of Alabama from 1994 to 1997. The author of Notes of a Racial Caste Baby: Colorblindness and the End of Affirmative Action (NYU Press 1997), Professor Fair’s research agenda focuses primarily on equality and equal protection theory and jurisprudence.

When The Emperor Has No Clothes

Like much of the nation, I was stunned by the revelations of the latest sex-scandal allegations against Governor Eliot Spitzer, the maverick, crusading reformer who promised to clean up government corruption in New York, and who by my estimation, was considered a rising star in national Democratic politics. At 48 and as governor of New York, surely Spitzer has had an eye on the larger prize in Washington.

All of that has changed now because Spitzer apparently paid tens of thousands of dollars for sex with prostitutes employed at the Emperor's Club VIP. Spitzer's many enemies have insisted that if he doesn't resign in the next 48 hours, they will seek impeachment. Moreover, even his fellow Democrats seem convinced that he has no choice but to resign. On the other hand, insiders have suggested that Spitzer's wife has encouraged him to stay on and fight through this scandal.

I am agnostic regarding his resignation. I don't know New York politics well enough to know if the people of the state can forgive him or if they even care that he bought sex. Perhaps there is a view that if he cheats in this way, he must cheat in other ways as well and thus he is unfit to serve. Spitzer should apologize, express contrition, and insist that his service to the State of New York should not be defined by this scandal. Even with such contrition, he may face other legal challenges and perhaps an indictment. Yet, whether he survives is not my main concern.

My concern is that many Americans will conflate Spitzer's high-end sex for hire trysts with the exploitative, abusive, violent, if not deadly, street sex trade that ensnares millions of vulnerable people, including millions of children, throughout the world into forced sexual slavery. I think this is a mistake. I share the concerns of international human rights groups who report on the sexual slavery industry in every part of the world and I am convinced that neither domestic or international legal bodies have done enough to combat sexual slavery. Yet, I am also convinced that making an example of Spitzer will not help reduce the international sex trade or stop powerful and wealthy people from paying for sex. Thus, even if Spitzer has allowed himself to be seduced by his position, power, and wealth and he has not lived up to his own standards, it seems also true that he has been a measured voice in the international movement against sexual slavery. And, we need more, not fewer, of those voices. If I were Spitzer, I would insist that his alleged activities are different not only in kind, but also in degree. His opponents may disagree, but he should make the case, explaining why his hired partners are not victims in the same way as millions of mostly women and children who are sexually assaulted and exploited every day.

It is simple to treat such cases the same. Hired sex is all bad. One leads to the other. It must all be regulated vigorously to protect the most vulnerable people. There is force to this view.

I think the issues are more complicated. Prostitution is an ancient profession. When other professions were all but closed to women by law, men and women organized brothels to service clients. At least in part, the sex trade here and elsewhere emerged from widespread discrimination against women. Women seeking basic survival and without other labor opportunities, traded sex for money. This historic discrimination against women is the principal reason that women throughout the world are much poorer than men. And because women are poor, so are many of their children. Such poverty makes millions of women and children today vulnerable to all sorts of exploitation and violence. Some of them are lured into the international sex trade based on promises of better lives. The law could do so much more to combat the cumulative poverty of women and children, but it rarely does so. Antidiscrimination policy has not transformed the substantive status of women or their children and thus they remain vulnerable to exploitation, abuse, and violence.

The more challenging question is when, if ever, can a woman voluntarily choose to become a prostitute? On the one hand, perhaps it is never a real choice since all other options are not truly open as they have been and are for men. On the other hand, for women who have resources, who have attended college, and who have real alternatives for support, can they nonetheless choose to sell sex? If the Emperor's Club pays its prostitutes six figure salaries, can one choose that work over another job that pays only a quarter of that amount? And if the law closes off the higher paid profession, is it advancing women's equality or hindering it? I don't think these are easy questions. Even worse, I don't think the current scandal will create space to explore any of them. And that's too bad. Whatever Spitzer does, domestic and international legal groups should insist that the law be used to improve the legal status of women after centuries of exploitation.

Equality in this context may not mean that Spitzer's alleged crimes rise to the level of human rights violations. There may be compelling reasons to treat the cases the same. If so, I have not heard them.

Published Wednesday, March 12, 2008 9:46 AM by Bryan Fair

© Bryan Fair. All rights reserved.

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