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The Newest Defense for the Oldest Profession : Courts: Does Roe vs. Wade make sex for hire constitutionally OK? That's what a former call girl says in a right-to-privacy lawsuit. And she's finding support.

August 04, 1995|MIKE CLARY | SPECIAL TO THE TIMES

MIAMI — Jane Roe II is thinking of going back to work as a hooker, but first she wants to do for prostitution what Jane Roe did for abortion: Make it legal.

After all, she argues, if a woman has a constitutional right to privacy, "then how can a woman not have the right to use her own reproductive organs to give away sex or charge for it?"

What's more, says Roe II--a Palm Beach County woman who describes herself as a former high-priced call girl--sex for hire is no different than a casual movie date in which the couple ends up in bed.

"Even a dinner and an evening out on the town is thought of by most men [and women] to be a financial investment and compensation for sexual activity--sooner or later," Roe II says.

In what is being hailed as the newest approach to legalizing the oldest profession, Roe II--a nom de guerre--is challenging Florida's laws banning prostitution with a federal suit. She argues that the landmark 1973 Roe vs. Wade decision on abortion is the key to saving future Hugh Grants and Divine Browns from embarrassment, to say nothing of criminal charges.

Says Florida Deputy Atty. Gen. Peter Antonacci, whose office opposes Roe II's claim: "This suit is filed by people who've found an issue to get on the front page. It has zero merit. This is a commerce issue, not privacy."

As strange as the lawsuit may seem, some people are taking it seriously.

Robyn Blumner, executive director of the American Civil Liberties Union in Florida, for example, calls Roe II's case "an interesting angle. We support the right of women to determine what they want to do with their bodies--trade it for a fee, a good meal, whatever."

Los Angeles attorney and feminist Gloria Allred says the argument is "intriguing, and very creative. I don't know of a similar case."

Perhaps most important, U.S. District Judge Jose A. Gonzalez Jr. of Ft. Lauderdale is taking the case seriously. He refused a request by the Florida attorney general to dismiss the suit.

And Gonzalez is known as a conservative, no fan of societal upheaval. In 1990 he ruled that 2 Live Crew's album "Nasty as They Wanna Be" was obscene.

In the Roe II case, Gonzalez is expected to render a decision by year's end.

Elliot S. Shaw, Roe II's attorney and a longtime friend, says he was initially hesitant to take the case. "It looked like an uphill climb," he says. "It still does."

But at Roe II's urging, he did some research. He listened when his client said, "I presently have the opportunity to return to this lucrative--and often glamorous--business of prostitution immediately, which I am very interested in accepting but for the fact that I face the threat of arrest and obvious personal embarrassment, public ridicule and harassment."

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Jane Roe II, who insists on anonymity, describes herself as a former honor student, a mother and a successful businesswoman, now in her early 40s, who for several years worked for a south Florida escort service, which was "once favorably written up in Newsweek." Her clients included doctors, lawyers, clergymen, judges, sports stars and Hollywood celebrities.

In exchange for sex and companionship, she states in her seven-page affidavit, she was paid "what most people would consider a good week or two's wages."

While Roe II says she was never arrested, "I seethed over the hypocrisy and the fact that prostitution was illegal."

In Roe II's view, the lives of many modern women are almost totally governed by sex-for-hire arrangements, as implicit or as unwitting as they may be.

"Is having a mistress illegal?" Roe II asks. "That's sex for hire, and that's unfair too. Does sex for hire in an hour become different if it occurs for a year?" Finally, Roe II says, her suit was prompted by her ire at what she calls "zealot female mayors . . . [who] always try to divert attention from their own failures by blaming it on prostitution."

The mayor Roe II had in mind, Shaw confirms, is West Palm Beach chief executive Nancy Graham, who has spearheaded a highly publicized campaign to rid some neighborhoods of street walkers through police sweeps and by publishing in newspaper ads the names of men arrested for soliciting sex.

Graham, a lawyer herself, says of Roe II's lawsuit: "It's just a bunch of baloney. People don't have abortions on sidewalks, in people's yards. I don't care who sleeps with who. But this issue is where and how they're doing it. Ridiculous."

Some feminists seem wary of any legal challenge that may invite a re-examination of the constitutional right to privacy, an issue on which the Supreme Court is hotly divided. In fact, Roe II's attorney suggests that Judge Gonzalez may be eager to revisit the foundation of Roe vs. Wade.

But others think this lawsuit is both novel and meritorious. Allred, who has long opposed anti-prostitution laws, says the "argument about privacy is a compelling one. It's an uphill battle, but one worth waging. It's an enormous waste of taxpayers' money to be running after prostitutes."

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Margo St. James, 58, an ex-hooker who founded COYOTE (Call Off Your Old Tired Ethics) and is now a candidate for San Francisco supervisor, says Roe II's suit poses "a brilliant argument that no one ever thought of before."

"Anti-prostitution laws are tools to control women," says St. James, who advocates decriminalizing sex and regulating sex workers.

Although Blumner says the ACLU supports Roe II's arguments, the suit is probably doomed. "It would take a jurist of extraordinary honesty and courage to find in her favor," she says.

Shaw is not so sure.

"This suit is about a woman's right to choose," he says. "There are a lot of secretaries and nurses who would love to make a living that way. If prostitution was not illegal and frowned upon by society, they'd do it in a heartbeat.

"So this is a serious and sensitive lawsuit that goes to heart of male-female relations in the '90s."

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