In the Vandevelde-Colucci case, much of the dispute hinged on whether their relationship qualified as commercial sex work. Plenty of disputes arise, however, in cases where there is little question that part of what was going on was the commercial provision of sexual services. As we have seen, sex work covers a wide range of relationships including involvement of customers with lap dancers, telephone sex workers, escort services, pornography, adult Web sites, various forms of prostitution, and much more. In addition to prosecuting certain forms of sex work, the law, however reluctantly, gets involved in adjudicating whether certain relations constitute sex work and, if so, determining their legal standing.
Laws against prostitution form the foundation of a wide range of actions concerning sex work. Despite the specter of prostitution as the end-point of any commodification in sexual relations, however, in practice courts and judges have not maintained a simple dichotomy of legitimate, nonmonetary sexual relations versus illegal monetized prostitution. Most American states make prostitution illegal, usually declaring it a misdemeanor. In general, American laws pinpoint the exchange of money for sexual services as the defining element of prostitution. Thus, for example, Florida defines prostitution as “offering to give or receive or giving or receiving the body for sexual activity for hire,” while for the Illinois statute, prostitution consists of: “offering or agreeing to perform or performing any act of sexual penetration or touching of genitals for money or anything of value. A person patronizes a prostitute by engaging in sexual penetration with a prostitute who is not that person’s spouse” (Posner and Silbaugh 1996: 161, 164-65).
The Illinois law has two remarkable features: it self-consciously distinguishes a spouse’s (legal) provision of sexual services from a prostitute’s (illegal) provision of the same services, and it explicitly stigmatizes the provider rather than the recipient of the services. As in other cases, legal practitioners implicitly construct a matrix of relations, one of which is prostitution. They then distinguish prostitution from adjacent relations such as marriage, they mark boundaries, and they specify the proper correspondence among the relations, transactions, and media for those transactions.
Thus, lawyers, judges, and juries are often deciding whether a given relationship is that of married couple, lovers, engaged parties, prostitute and client, or something else. They make weighty legal decisions depending on where they place the relevant relationship. Not that all parties always agree on this matter. The matrix itself and its boundaries frequently come under sharp contest, as opposing lawyers and outside advocates disagree over the propriety or impropriety of different relationships, transactions, and media. What’s more, different types of law employ somewhat different matrices, for example, tax law focuses on whether a relationship generated
earned and taxable income, while the law of engagement, as we have seen, focuses on the conditional promise to marry.
A dramatic example comes from a 1992 tax dispute (Toms v. Comm’r, 63 T. C.M. (CCH) 2, 243 (1992)). During the early 1980s, Frances Mary Granato Toms ran a freelance escort service and a house of prostitution in New Jersey. She employed five female prostitutes as well as three male escorts and advertised widely in local newspapers. She favored “customers who were financially generous older men” (*4). Toms’s fees ranged from $35 to $125 per service; she paid $30 to the employee and pocketed the balance. Between 1965 and 1974, Toms had been involved with Sam Celona, a gas station attendant thirty-four years her senior. In 1974, she met and married Paul Toms, thirty years older than herself; he died four years later, in 1978. That year, Toms advertised for a millionaire who would support her, and apparently received over two thousand responses. In 1980, she met Samuel Cohen, a retired IRS employee, who was despondent following a recent separation from his wife of twenty-five years. On their first date, Toms and Cohen went to dinner, the movies, and back to his home in Philadelphia to listen to music and talk. That evening, Cohen paid Toms $200, and for the next few years, continued paying $200 for each of her biweekly four-to-five hour visits. They did not, he later declared, have sexual relations. Each time, nevertheless, he gave her the money as she left his home.
In 1982, Toms met Joseph DeFelice when she arranged sexual services for him with Michelle Barns, one of her employees, for $125. On a second visit, DeFelice paid $50 for sexual intercourse with Beth, another employee. After that, between 1982 and 1983, DeFelice met with Toms several times a week, paying her for each encounter. Frances Toms’s legal troubles began during those years. After five years of surveillance by a sergeant-detective, she pleaded guilty and was convicted of prostitution in 1985. At about the same time, a special agent from the IRS began investigating Toms’s tax reports. By 1988, she was convicted of willful evasion of income tax for profits from her prostitution business.
She appealed, claiming that a large portion of her accumulated savings and investments were gifts from the two men she called her “sugar daddies,” Samuel Cohen and Joseph DeFelice. Cohen’s payments, she declared, were expressions of “love and affection.” De — Felice, meanwhile, testified that his relationship to Toms “had blossomed into a love affair,” and “he showered [her] with more money than he conceivably had” (*35-37). If gifts, the payments were not taxable income. The Tax Court disagreed, finding “unpersuasive” the evidence that either of the men’s transfers were gifts. In Cohen’s case, the presiding judge explained:
Whether a transfer of funds is a gift is based upon an objective inquiry into the facts. .. . Mr. Cohen testified that he has not had sexual relations with petitioner. That is immaterial to our
decision. Mr. Cohen paid petitioner for the first evening she
spent with him and paid her most nights she saw him. This suggests a paid escort relationship, not gifts to a friend.
While we do not question the importance Mr. Cohen places on his companionship with petitioner, we believe that his regular payments to her were not out of [affection].. .. Instead, we believe the payments were for services rendered, and therefore not gifts. (*37-38)
As compensation for prostitution and escort services, the payments became taxable income. The court rejected Toms’s appeal.
In order to make its judgment, the Tax Court thus got involved in delicate questions about the nature of Toms’s intimate relationships, specifically whether or not her ties to Cohen and DeFelice were that of lovers or participants in a commercial sexual arrangement. It is a crucial distinction. Recall what happened in the case of Kritzik and the twin sisters. Originally, both Leigh Ann Conley and Lynnette Harris went to jail for failing to pay income tax on the more than half a million dollars the old widower had given them over several years in exchange for their sexual services. After Krit — zik’s death, however, the appeals court reversed the conviction precisely by affirming the women’s claims that the relationship was not that of prostitute-client, but lovers. The money payments thereby became nontaxable gifts. The Tax Court ruled that these two cases were different. But why? In both episodes unmarried persons maintained intimate relations over a long period of time, and the men gave the women money. Yet the courts found that in the first case the monetary transfers qualified as compensation for services while in the second they qualified as gifts.