Legal efforts to classify varying forms of sex-for-money relationships go farther than criminal prostitution or income tax evasion. The case of lap dancing, for instance, has created a great deal of controversy precisely as a result of its uncertain legal status. Uncertainty begins with the entertainment’s very name. Professionals prefer to call the practice exotic dancing. Some observers and participants speak of topless dancing. But legislation and court decisions often refer to lap dancing. In a narrow sense, lap dancing includes gyrations by a nearly nude woman on a customer’s lap. Somewhat more broadly, the practice includes erotic motions in close proximity to male customers, who often reciprocate by placing money in whatever receptacle the dancer makes available. In either the narrow or the broader sense, courts often assimilate lap dancing to prostitution by declaring it in violation of statutes forbidding sexual conduct for a fee (see Obscenity Law Bulletin 2000: 1; and for graphic testimony, see Steinbach v. Texas, 979 S. W.2d 836 (Tex. App. 1998)).
Still, in most other aspects, the law distinguishes the lap dancer — spectator relationship from the prostitute-client tie. It does so through setting precise legal rules about what the parties may or may not do. For instance, so-called buffer zone laws prohibit touching between patron and dancer by establishing legally enforceable spatial constraints. Specifically, dancers must remain anywhere from three feet to ten feet away from the nearest patron, often on a raised platform. In many cases, direct payment by patron to dancer is like
wise avoided by prohibiting tips. A 1986 decision upholding these restrictions concluded that buffer zone regulations did not challenge First Amendment rights: “While the dancer’s erotic message may be slightly less effective from ten feet, the ability to engage in the protected expression is not significantly impaired. Erotic dancers still have reasonable access to their market” (Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1061 (9th Cir. 1986)). Nevertheless, local jurisdictions vary greatly in where they draw the line between proper and improper lap dance behavior. For instance, while the city of Las Vegas allows touching and tipping, in 2002, adjacent Clark County imposed stricter rules. In Clark County, lap dancers were allowed to touch or dance on a customer’s legs, but prohibited from touching the customer’s genital area. Stuffing money in the women’s G-strings was likewise banned (Wagner 2002).
Thus, lap dancing law makes a double distinction, separating relations between dancer and client from prostitution and other forms of sex work, but also from the legal intimate relations of lovers and married couples. In the process, the law ironically draws perimeters around legally tolerable forms of sex work. Similarly, courts, lawyers, and juries intervene in a variety of other exchanges of sex for money—hostess dance halls, massage parlors, phone sex, and pornography. But in each case they draw the lines between acceptable and unacceptable behavior in slightly different ways.
In distinguishing legitimate from illegitimate forms of intimacy, American law faces some surprising choices. A bill (no. 469) introduced in the Ohio General Assembly 2001-2002 session includes the following provision:
“Sexual encounter establishment” means a business or commercial establishment that, as one of its principal business purposes, offers for any form of consideration a place where two or more persons may congregate, associate, or consort for the purpose of specified sexual activities or when one or more of the persons is nude or seminude. An establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized sexual therapy is not a “sexual encounter establishment” or an “adult entertainment establishment.” (Ohio General Assembly 2002: 6)
Clearly Ohio legislators found that if they imposed too great a restriction on paid forms of intimacy, they would start ruling out intimate relations they actually wanted to protect, in this case, relations between licensed professionals and their clients.