Philosophical issues in memorandum design

Fictitious

Governor's Office

This memorandum is an analysis of the P&E issues raised by proposed legislative changes regarding criminal sexual behavior, as well as so-called "vices" and other related conduct. The purpose of this analysis is to define a coherent set of public policy objectives characterizing all legislative changes supported by the Fictitious State Governor's Office.

Upgrading penal classification of Solicitation/Prostitution misdemeanors and increasing sentences and fines associated with all Solicitation/Prostitution felonies.

This committee does not recommend enacting any of the proposed penal upgrades across the board as set forth. We recommend re-evaluating current "vice" policy regarding violations of existing

Solicitation/Prostitution statutes in order that funds for law enforcement and prosecution efforts be redirected and channeled more specifically toward violations that most affect "quality of life" issues for lawful citizens of Fictitious State.

Analysis:

Both anecdotal evidence and documented statistical information available from the seventeen counties in Nevada where prostitution is legal suggest that it is essentially a victimless crime. The overwhelming majority of ancillary crimes associated with prostitution in the rest of the country has been all but eliminated where the state has undertaken to regulate, control, and tax the activity rather than criminalize it and pursue prosecution for statutory violations.

The activity itself takes place behind closed doors and poses neither risk, nor harm, no inconvenience to the general public. In Nevada, legalization has effectively solved problems that persisted, despite allocation of significant public funds and law enforcement manpower. Legalization there seems to have improved communities where illegal prostitution had previously flourished in a way that constituted a blight on the surrounding communities. Similarly obvious results of this approach to prostitution include the incorporation of public health concerns within licensing requirements, as well as tax revenue from income that is now being reported. Somewhat less obvious, though equally important benefit of state regulation is the effect on the dignity and autonomy of the individuals providing "services" without the abuses inherent where regulation and control" is left to predatory criminals.

In many ways, the current situation elsewhere is precisely the same as witnessed in connection with thirteen years of Prohibition during the last century, under the Eighteenth Amendment: law enforcement efforts were relatively unproductive, and any positive results enormously uneconomical in terms of funding resources. When state and federal agencies undertook regulation, control and taxation of alcohol production and distribution, ancillary crimes associated with the outlaw entities that controlled the industry during Prohibition were virtually extinguished overnight.

This committee recognizes the difficulties and myriad ramifications of any radical proposal to change (or eliminate) current Fictitious State Solicitation/Prostitution statutes, and therefore expresses no position whatsoever concerning the decriminalization of activities currently proscribed by Solicitation/Prostitution statutes, regardless of the foregoing arguments. We merely present this historical perspective in order to suggest that the goal of improving community "quality of life" standards would be furthered more directly and effectively by focusing law enforcement efforts on the ancillary criminal conduct that is characteristically intertwined within the principle criminal activity addressed by statute.

Proposal #2:

Criminalizing the production or distribution within, and importation into Fictitious

State of all taped or filmed visual representations depicting actual genital or oral/genital sexual penetration.

Recommendation:

This committee does not recommend criminalizing the production or distribution within, and importation into Fictitious State of all taped or filmed visual representations depicting actual genital copulation and anal/oral genital sexual penetration. We recommend that funds for law enforcement and prosecution efforts be channeled more specifically toward monitoring and enforcing rigid compliance with existing licensing requirements, Business, Employment, and Labor Law, and strict enforcement of existing child pornography criminal statutes and penalties applicable to violations thereof.

Analysis:

Corporate Counsel to this committee advises that First Amendment principles and voluminous case law in the United States Supreme Court will immediately invalidate any legislation directly or indirectly criminalizing any medium of "self-expression" based, in any respect, on content. The only possible avenue off attack would be pursuant to characterizations based on "community standards," but Counsel advises that no "community" the size and scope of the entire state of Fictitious would ever be deemed judicially to reflect uniform or articulable set of "community standards.

Accordingly, this committee recommends that law enforcement and prosecution efforts be focused exclusively on (and absolutely restricted to) enforcing applicable licensing laws and existing statutes addressing child pornography or the distribution or sale of this otherwise legal product to minors in violation thereof.

Proposal #3:

Criminalizing private acts of "deviant" sexual practices such as "bondage," sadomasochistic or submissive/dominant "role play" in conjunction with activities intended to arouse or titillate or produce actual sexual gratification.

Recommendation:

The committee does not recommend criminalizing private acts of "deviant" sexual practices such as "bondage," sadomasochistic or submissive/dominant "role play" in conjunction with activities intended to arouse or titillate or produce actual sexual gratification.

Analysis:

Corporate Counsel to this committee advises that recognized Privacy issues established by case law in the United States Supreme Court will immediately invalidate any legislation directly or indirectly criminalizing any such purely private conduct. A large body of Supreme Court rulings (beginning with Griswold v. Connecticut) has established a "penumbra" of privacy concerning the sexual habits of adults within the privacy of their own homes. Counsel further advises that any legislation based in whole or in any part on sexual "themes" is absolutely prohibited by the First Amendment, as well. Therefore, it is the collective opinion of this committee that no regulation of private sexual conduct is worthwhile pursuing, promoting, or promulgating for legislation.

Proposal #4:

Criminalizing the advertising, promoting, and providing of all forms of "sexual therapy" consisting of any contact between therapist and client intended to arouse or titillate or produce actual sexual gratification.

Recommendation:

The committee does not recommend criminalizing the advertising, promoting, and providing of all forms of "sexual therapy" consisting of any contact between therapist and client intended to arouse or titillate or produce actual sexual gratification. We recommend that funds for law enforcement and prosecution efforts be channeled more specifically toward monitoring and enforcing rigid compliance with existing licensing requirements and maintenance of all applicable standards set forth in Fictitious State departments of Health, Fire and Business codes.