Spitzer Has Sinned, But It's Our Sex Obsession That's Criminal


By Alan M. Dershowitz

Published March 12, 2008, issue of March 21, 2008.
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When Eliot Spitzer was my research assistant in the 1980s, he was a young man of great brilliance, high integrity, conservative demeanor and enormous promise. It pains me deeply to see him brought down so far, and so quickly, by private sexual misconduct.

I think somewhat less of him now than I did before I heard this week’s news of his indiscretions, largely because of what he did to his family — but let’s all take a collective deep breath and try to regain a sense of proportion about the essentially private actions of this public man.

Throughout our history, men in high places have engaged in low sexual activities. From Thomas Jefferson to Franklin Roosevelt to John Kennedy to Lyndon Johnson to Bill Clinton, great political figures have behaved like adolescent boys in private, while at the same time brilliantly and effectively leading our nation in public.

The laws criminalizing adult consensual prostitution — especially with $5,000-an-hour call girls — are as anachronistic as the old laws that used to criminalize adultery, fornication, homosexuality and even masturbation. These may be sins, but there are no real victims, except for family members.

Our nation, unique among Western democracies, is obsessed with the private lives of public figures. Whether it be Larry Craig soliciting favors in an airport bathroom or Rush Limbaugh getting illegal pharmaceuticals in a parking lot, this obsessive focus on the private imperfections of public figures threatens to drive many good men — and soon, good women — out of public life for fear that they will brought down by their private peccadilloes.

The back pages of a good number of glossy magazines and local newspapers openly advertise what everybody knows to be expensive call girl services. They’re advertised on television, in tourist brochures and on the Internet. Millions of people around the world use prostitutes and call girls.

The trade can be tawdry and sometimes exploitive, as when young girls are enslaved and prostituted against their will. But adult women who make the choice to sell their bodies for sex for $5,000 an hour are not victims, and if the trade is tawdry, it certainly doesn’t warrant 5,000 overheard phone calls, 6,000 intercepted emails and the use of surveillance and undercover agents — all of which could have been put to better use in seeking to prevent acts of terrorism or predation against innocent victims.

We are a nation of hypocrites who publicly proclaim against acts that so many of the proclaimers perform in private.

Yes, Eliot Spitzer can be charged with hypocrisy for prosecuting prostitution rings while patronizing prostitutes himself. The voters would have had every right to hold his hypocrisy against him had he run for office after completing his term. They could have considered the recklessness of his conduct in evaluating his ability to perform his public functions. But forcing him to resign constitutes an abuse of the political and criminal processes, an abuse that would only be compounded by using vague criminal statutes to prosecute him for federal crimes for which no one is prosecuted.

There is another issue that is potentially quite troubling in this case. The story about how Spitzer’s alleged crimes were discovered does not ring true.

As a criminal defense lawyer, I have dealt with many money laundering and other bank-related cases. The financial transactions that allegedly gave rise to the federal government’s interest in Spitzer do not generally result in a criminal investigation.

I strongly suspect that we will learn more about how the feds came to focus on Spitzer’s financial transactions. The money laundering statute is so vague and open-ended that it can be used selectively to target political and economic opponents. On this issue, stay tuned. We have not heard the last of it.

As a nation we must learn how to distinguish between sin and crime, between activities that endanger the public and those that harm only the actor and his family. The criminal law should be reserved for serious predatory misconduct.

Nor should this story of personal fallibility dominate the news, as it continues to do while our soldiers are killed in Iraq and the Democrats choose their candidate for president. Sex sells soap, at least in the United States — but a married man going to a prostitute is simply not a big deal. We must restore our sense of proportion and priorities.

Alan Dershowitz is a professor of law at Harvard University.

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