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Jack Smith

Honor among thieves, sure--but legal protection? No way, says the judge

June 02, 1986|Jack Smith

Superior Court Judge Gilbert C. Alston of Pasadena, whom I reproached the other day for dismissing a woman's charge of rape against a man on the grounds that it was simply a "breach of contract" between "a whore and a trick," has dismissed my argument as contemptible, though, I am happy to say, he has not held me in contempt.

Indeed, Judge Alston responds with wit, charm and style, observing that he felt both "joy and consternation" at the public notice, much like "watching your mother-in-law go over the cliff in your brand-new Cadillac."

Also, he says, he was reminded of the cattle rustler who said, as they slipped the noose over his head, "If it weren't for the honor of the thing I'd sooner be somewhere else."

I'd say that an alleged rustler who knows enough to use the subjunctive mood correctly is probably not guilty. Or is that snobbish?

"I am dismayed," the judge says, "that you, among so many other seemingly intelligent people, have failed to grasp the legal reasoning behind the decision."

You may recall that I compared the prostitute with the drunk who tripped in a hole in the sidewalk, fell, broke an arm, and sued the city. On his appeal the California Supreme Court reversed the lower court's adverse judgment, holding that "a drunk is just as entitled to a safe sidewalk as any other man, and is more in need of it."

My point was that a prostitute is just as entitled to the protection of the law against rape as any other woman, and might be more in need of it.

Judge Alston dismissed my analogy between his case and "the bum walking down the sidewalk," as he phrased it, as "completely inapplicable."

"Walking down the sidewalk is a perfectly legal and lawfully protected activity," he noted. "Prostitution, on the other hand, is a crime punishable by mandatory jail time. . . ." He added: "I have been unable to find, and no one has been able to direct me to, any law or public policy which protects any criminals while engaging in their illegal acts."

In the first place, I won't say that Judge Alston is being deliberately sly in changing my plaintiff from a "drunk" to a "bum," but it does alter the case. Being drunk in a public place is unlawful, too, is it not? Thus, the drunk was no more engaging in a legal act than the prostitute.

Then Judge Alston takes a stand in the fortress of his juristic knowledge and experience, where I cannot assail him:

"Without getting too involved I will simply state that basic century-old rules of law, having their origin in public policy mandating the suppression of crime, were relied upon in this case as a basis for the decision. To have ruled otherwise would have been the giving of tacit legal recognition and approval to a concept of 'limited prostitution.' Such is a job for the Legislature, not the courts."

He also accuses me of euphemizing when I said that he had before him not "a whore and a trick," as he had indicated, but simply "a man and a woman."

"What I had before me were two criminals who had engaged in legally prohibited activity and had come to the court for a resolution of a dispute concerning the conduct of their illegal acts. I can only reiterate my apology to the jury for wasting taxpayers' money on a case such as this. This case clearly represents an improper use of the overburdened, backlogged justice system."

I am hardly learned enough to dispute the law with Judge Alston, who is not only amiable, articulate and combative, as his letter shows, but also, I am told, was a gung-ho fighter pilot in the Korean War, which indicates, to me, that he is courageous as well.

However, I don't think it's euphemistic to describe a complainant and a defendant as what they are, essentially, before the law--a man and a woman.

Evidently what happened in this case was that the woman agreed to limited acts of prostitution, and the man forced her into more, resulting in her complaint of rape and sodomy.

Let's say two men agree to pick another's pocket. Later they fight over the loot and one kills the other. Since this dispute grew out of their illegal act, is the man who killed his accomplice immune to a charge of felonious homicide?

I certainly agree with Judge Alston that courts ought not to be burdened with disputes between prostitutes and their clients. But why would a prostitute bring a felony charge against a client unless she felt she had been criminally abused, and wanted him punished? Such an action is not likely to reflect favorably on her good name in the profession, and could hurt her business. Surely such complaints are rare.

My point is that prostitutes have a hard enough time trying to make an honest living without being dismissed as outside the protection of the law. Can they be raped, sodomized, beat up and even murdered by any man who claims that he was only a trick, demanding his contractual due?

Maybe Judge Alston is right. It's a job for the Legislature. They should make prostitution legal, and license its practitioners, like psychiatrists and lawyers. That would not only make prostitutes respectable, but also add to the city's revenues and the gross national product.

And they could have their day in court as equals under the law.

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