Thursday, Oct. 5, 2000 | 11:15 a.m.
A controversial policy of making plea deals with male prostitutes but not with females accused of soliciting for sex has put local prosecutors on the defense.
A ruling by Justice of the Peace Nancy Oesterle Wednesday to grant a hearing on gender discrimination to an out-of-state woman accused of soliciting a Metro Police vice cop has placed the burden on the district attorney's office to defend the constitutionality of the policy that critics call blatant discrimination.
In December Clark County District Attorney Stewart Bell announced that plea bargains would no longer be allowed for women accused of soliciting prostitution, but that bargains would be permitted for first-time male prostitutes and the male customers of prostitutes of both genders.
"Both sides will be allowed to present evidence in support or to refute a general finding of discriminatory impact and a specific finding of discriminatory purpose with respect to defendant's charges," Oesterle wrote in her decision on the hearing -- a date for which is yet to be set.
"If selective prosecution is proven, the court will fashion an appropriate remedy at that time."
The ruling from that hearing is expected to affect more than 35 other cases pending against women fighting solicitation charges in justice and district court.
"I'm not surprised at all (with Oesterle's decision) because there was no doubt we established a prima facie case of gender discrimination when it comes to plea bargaining," said attorney Bill Terry, whose client is accused of soliciting an undercover detective to watch her perform a sex act.
"The judge made it clear in court today that all of the justices of the peace met and have determined it is a sexually biased policy."
Because the solicitation case against the woman is a misdemeanor charge, the Sun will not print her name.
Other attorneys heralded Oesterle's decision as a courageous one because it could make her and the other justices subject to political scrutiny.
"I applaud her courage and her knowledge of constitutional issues and her willingness to do the right thing despite the potential for political pressure," said Michael Amador, who is representing other women accused of soliciting prostitution.
"The DA's office is exercising its discretion in a manner that violates their (his clients') constitutional rights in that men who are charged with similar offenses are treated differently than women."
Bell was out of town and could not be reached for comment. Attempts to reach a spokesman in his office also were not successful. In January, Bell told the Sun in defense of his policy: "We have a duty and responsibility to have a constitutionally protected industry, not employ convicted prostitutes."
The controversy stems from the American Civil Liberties Union taking exception last summer to Metro Police instituting a policy of denying work cards to exotic dancers who were merely arrested for prostitution, but not yet convicted of the crimes.
On Dec. 9 following the ACLU's complaints, Bell issued this policy: "It has been agreed amongst Metro, the district attorney's office and the city attorney's office that -- except in cases of first-time male offenders who opt for the diversion program (a class that costs $400) -- we will not negotiate the nature of cases of soliciting prostitution nor will we agree that they may be in the future dismissed for any reason. The defendant will either plead guilty or be tried."
In effect, the DA's office with each solicitation conviction gives Metro the ammunition needed to deny work cards to exotic dancers, and perhaps put a huge dent in the adult-oriented outcall entertainment industry that police have long maintained are fronts for prostitution.
Metro records show that police make more than 3,000 prostitution arrests per year through operations including vice stings in hotel bars and strip clubs, on people working in the outcall industry and via street patrols. Those convicted of solicitation face up to $1,000 fines and six months in jail.
Gary Peck, executive director of the ACLU of Nevada, said Bell's policy is punitive and lacks sensibility.
"We raised obviously legitimate constitutional issues, and rather than respond in a way that was sensible, he came back with an inane policy to punish the ACLU for raising the issue," Peck said.
Peck said the policy is clogging the courts with cases that could have been resolved, and it is causing legitimate dancers caught up in police prostitution stings to lose work.
ACLU attorney Allen Lichtenstein said Bell's policy not only is blatantly discriminatory but also hauntingly reminiscent of days when Southern lawmakers and officials issued similarly worded policies aimed at denying blacks their rights.
"You can replace the word 'male' in Stewart Bell's statement with the word 'white' and say that only white offenders will be allowed to receive plea bargains," Lichtenstein said. "It's the same thing, only instead of white and black it is male and female. Discrimination is discrimination.
"We would hope the DA would change this bad policy to treat each case individually and on its merits and properly evaluate those that should be plea bargained."
Ironically, defense attorneys say the solicitation cases that are being most affected by Bell's policy have nothing to do with work cards. Amador notes that only one or two of the women he is representing have or even want work cards to be dancers.
"I have a client from out of state who was on the Strip and was approached by an undercover officer who offered her $2,000," he said. "She had been drinking and said OK and was arrested and charged with soliciting even though she was entrapped.
"Before Metro, the DA and the ACLU overreacted and turned this into a political issue, the prosecutor could have used proper discretion. My client would have agreed to take an AIDS class, stay out of trouble for six months and then have the case dismissed."
Amador, who was a deputy district attorney for eight years in the 1980s, said he now has no choice but to take that case and others through the system because the forces arguing over work card constitutionality, "are digging their heels in the sand."
License-related work cards are issued by Metro after the agency does background investigations for those seeking employment as exotic dancers, security guards, child care workers or as locksmiths. Metro also issues gaming and nongaming work cards for people seeking service industry jobs.
Metro issues more that 105,000 gaming and nongaming work cards and about 10,000 license-related work cards each year at $35 apiece.
Attempts to reach Metro Undersheriff Richard Winget for comment were unsuccessful. However, in a Sun story earlier this year on Bell's policy, Winget said the issue is one of public safety and welfare.
"The whole idea is to keep adult entertainment legal and aboveboard," Winget said in January. "The nature of the work can facilitate connections that could lead to prostitution. If they are convicted of using that connection, then we'll remove that permission, and they can get a job in some other business."
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