The Law and the Skin Trade in the Windy City

Sex in Chicago

By J. D. Obenberger, Attorney at Law
© 1998 J. D. Obenberger, All Rights Reserved

[This is one of the first, if not one of the very first, articles I wrote for Gentlemen's Pages, a monthly Chicago sex tabloid, nearly fifteen years ago. In many ways, it set the tone for everything that followed in my law practice, and much of what it says is as true now as it was then. So, it remains here.]

During the late Seventies, while I was going to law school, there was a series of articles in the country's leading men's magazine about sex in major American cities. I will never forget the line that opened "Sex in Chicago": It quoted someone who said that anyone in Chicago who is really serious about sex goes to New York for the weekend.

That may have been something of an exaggeration, especially during the Seventies, when X-rated movies played on State Street just a few blocks south of the 8mm loop arcades, and in the heart of what Chicago now calls the Theater District, when Smoker's flourished on Mannheim and the Harem Leisure Spa operated across the street from the Moody Bible Institute, when Old Town featured second story massage parlors, when a riot of clubs dazzled Rush Street and all of its side streets, one daring even to project the live dancer's silhouette onto a red translucent window facing the sidewalk, and when Cicero and Lyons and the Roman House and Club Tarray were all running at full throttle till the sun came up. (You'll notice that I haven't even mentioned the Mark Twain.) The Admiral and the Oak, and other theaters too numerous to mention, filled big screens with decent-quality adult movies made Hollywood-Style and Seka and Annette Haven and the others all came to dance during intermission on the weekends.

Maybe an exaggeration.

But not by much, because, in the end, it was former schoolboys from Ignatius, Carmel, and Quigley Prep who went on to rule the City and to determine its degree of intolerance to adult entertainment for the rest of us during their lunches in the Evergreen. (As they still largely do.)

They proceeded to shut almost all of it down during the intervening twenty-some years. And what might have been a kernel of truth in 1977 has become virtually the civic policy of the whole metropolitan area, making the statement more true today than it was then: In the end, Chicago is undeniably a conservative place when it comes to the regulation of erotic entertainment by local ordinances, not only in the City, but in municipalities from Joliet to the Wisconsin line.

Even a short stay in Atlanta, Dallas, Miami, Houston, New York, or Las Vegas will convince the skeptic of just how restrictively Eros here stands chained. The City of Chicago itself, three and a half million strong, has made room for only three erotic dance clubs, and you could count with the fingers on two hands all of the clubs in the five Illinois counties in this metropolitan area of twelve million souls.

Maybe the repression of this business, maybe the suppression of the sexual expression that is at its heart, has demoralized even the operators and employees, because it is amazing how little the people who depend on this business for their livelihood know about their rights. The customers know even less and many assume that adult entertainment exists only in a grey twilight zone of the law, fueled, they think, by payoffs to enforcement personnel. Malarkey. Let me say it so loud and so clearly that even the late conscript fathers of our City, now residing in Graceland Cemetery and in the unplowed parts of Lincoln Park, can hear me: Erotic entertainment is not only legal, it is protected by the blood of the patriots who gave us this country, and the right to present and view erotic entertainment comes with the highest written guarantee known to the Law, the First Amendment to the United States Constitution.

And that is why I have agreed to write this series of articles for the Gentlemen's Pages. My practice of law is dedicated not merely to unbridled sexual license, but rather to the preservation of whatever liberty remains in American society. Unless people know what their rights are, they will never notice their slow and constant erosion until the rights are all gone. Liberty is not a dirty word. Why do we stamp that word on every American coin? So that we never forget that, in what has always been the American view, Liberty is the highest, best, and most sacred state of human beings, and that our nation is irrevocably committed to its preservation and expansion.

In the Articles that follow, we will talk about prostitution, obscenity, decoys, entrapment, massage parlors, vice operations, and all of the other matters that relate to commercial sexuality, about the things you do and the things you want to do, about what the law has to say about them, and about both your rights and the legal dangers that present themselves, operator, entertainer, or customer alike.

During the past six years that I have been representing the owners, operators, employees and customers of businesses in Chicago's Skin Trade, I've never stopped being amazed at the misinformation, bad advice, and downright falsehoods about their legal status that circulate as collective wisdom among these people. Sadly, while waiting my clients' turn in court, I have watched entertainers, customers, and the victims of police stings blindly plead guilty to things that, as a matter of law, they simply could not be legally guilty of, under the facts presented, even if they tried.

At least three times, I have had to go into court and fight to vacate a conviction of a state criminal charge of public indecency, which my client, a so-called lingerie model, made (under bad legal advice from another lawyer) because she flashed her breasts (or at least one of same) to an undercover police officer in the execution of an erotic performance dance. After the conviction and guilty plea was vacated in each of three cases, and a not guilty plea entered, the State dismissed the charge. When another lingerie model called me right after arrest, the State dismissed the charge on the second court appearance.

A close look at Illinois' Public Indecency statute and the cases which have interpreted it, make it abundantly clear that commercial nude performance dancing does not violate any criminal law of the State. Unlike Indiana, Illinois just does not have any state-wide policy against nudity in its laws.

In the Criminal Code, chapter 720 of the Illinois Compiled Statutes, we find Section 5/11-9 relating to Public Indecency, and among its provisions we find paragraph (a) (2) which criminalizes "a lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person." [Emphasis added.] Now, you don't need a law degree to understand what that means. It makes it against the law to victimize other people as a flasher. It just does not apply to an exposure done for the arousal or gratification of willing and enthusiastic patrons.

And the legislature told us that in 1961. When, more than thirty years ago, the Legislature was compiling a comprehensive revision to the Criminal Code, the committee responsible for drafting the bill considered language that would outlaw all public nudity - - whether as part of a performance or otherwise. They recommended that the language that would prohibit performance nudity be deleted from the bill, saying, "The Joint Committee deemed it best to limit this provision to only those exposures which were shocking and disturbing to the immediate audience, leaving commercial erotic displays for separate consideration. To this effect, reference to an intent to stimulate the viewer of the lewd act was deleted." The law was passed with the changes recommended by the Committee, and it remains the law of the State of Illinois.

This was precisely the holding of the Illinois First District Appellate Court, 1st District, in People of the State of Illinois v. Haven, found at volume 618 North East Reporter, Second Series, page 260, or in legalese, 618 N.E.2d 260 (1st D., 1992). In that case, Miss Haven (not Annette for those of you old enough to remember!) and another entertainer, peep-show dancers, had each been charged with two counts of violation of this statute simply because they entertained customers with nudity. The trial court dismissed the complaints. The ever-vigilant State's Attorney then incumbent, no doubt fancying himself defender of somebody's notion of public morality in addition to his actual responsibilities, appealed the dismissal. In the decision of the Appellate Court cited above, that Court affirmed the trial judge's dismissal of the complaints, and pointed the State's Attorney back to the language in the Committee Comments you have just read.

There are two important caveats that go with what I have just told you.

The first is that there is a state statute against obscenity. It is a crime. The right to perform a nude performance dance ends when it crosses the line into obscenity. We will talk about that in a later article. For now, you should understand that mere nudity is not obscene, and that no Illinois state law bans nudity in commercial erotic entertainment.

The second thing to keep in mind is that local ordinances may be charged, and many of them do attempt to ban all public nudity. Like all laws, the Ordinances are subject to the United States Constitution, the Illinois Constitution, and certain pre-emption doctrines and home-rule doctrines in Illinois State Law. They will be the topic of another article.

In other words, dear reader, do not try this at home without consulting a lawyer who knows something about erotic entertainment.

             
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This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is xxxlaw@execpc.com