Freeing Jane: The Right to Privacy and the World's Oldest Profession

Benjamin D. Novak

Abstract

The right to privacy has been expanding for decades, reflecting society’s evolving views on topics such as abortion, gay rights, and women’s rights. Should our society’s changing standards of decency and the right to privacy make unconstitutional the criminal punishment of the payment of money in return for sex, when both the transaction and sexual act occur in private between consenting adults? Have our social mores changed to the extent that the “oldest profession” in the world should be recognized as constitutionally protected? This article will argue that criminal punishment for such activity is an unconstitutional violation of the right to conduct one’s sexual affairs privately.