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Eliot's Erotic GamesWhen is a massage more than a massage?

By Michelle Tsai
Posted Monday, March 10, 2008, at 3:36 PM ET

Read more of Slate's coverage of the Eliot Spitzer prostitution scandal.

Eliot Spitzer. Click image to expand.

New York Gov. Eliot Spitzer was implicated today in a prostitution scandal and apologized in a brief statement. During the D.C. madam scandal in May, Michelle Tsai explained which "erotic services" are against the law and which aren't.

Deputy Secretary of State and abstinence-proponent Randall Tobias resigned Friday after admitting he called a Washington, D.C.-area escort agency "to have gals come over to the condo to give [him] a massage." The agency's madam, Deborah Palfrey, has been charged with running a prostitution ring, but she claims that her girls offered "high end erotic fantasy" services, not sex. What kinds of erotic fantasy services are illegal?

The touchy-feely ones. In most states, it's against the law to agree to exchange money for any erotic service that involves the touching of sexual parts with the intent to arouse or gratify. (Brothels are legal in parts of Nevada.) A man can pay for a massage as long as there's no salacious contact with his anus or genitals. And talking dirty—as with phone sex—is OK, too. Specific laws vary from state to state, but in general, the distinction between paid-for physical contact and "prostitution" comes down to the purpose of the touching.

Some state laws are more explicit than others about what exactly counts as sex or sexual contact. For instance, Texas penal code describes sexual contact as any touching of the anus, breast, or genitals with intent to arouse. New York state doesn't give a specific definition in its prostitution laws, but the courts have adopted guidelines taken from a law about disseminating indecent material to minors. It's illegal to pay for anything included in the following list: "[a]cts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breast." A series of legal cases since the 1970s has shed some more light on the issue. Performing an erotic dance while being touched on the exposed breasts or buttocks counts as sexual conduct. In the view of one court, BDSM activities like spanking and foot-licking don't. As for masturbation, New York judges have decided that you can perform the solo act, but you can't give somebody else a hand.

Legal fantasy sex might include fetish and bondage acts. In these areas, workers commonly have a no-touching rule—both to protect themselves from clients and to stay legal. Simulated intercourse and lap dances, again with no actual contact, could also qualify. What about at-home massages? They're legal if clients, as Palfrey's lawyer delicately put it, stay on their stomachs.

Escort agencies know they need to steer clear of frank talk about sex if they want to keep on the right side of the law. It's legal to pay hundreds of dollars to bring a companion to a benefit, but if you discuss what sex acts the girl will perform, then you're hiring a prostitute. Some madams avoid certain loaded phrases altogether, like "full service" or "date," while others have their girls sign contracts that say the agency isn't liable for their actions. Palfrey says she gave each of her escorts a guide that spelled out what sexual conduct was kosher and what was verboten, and made them pledge not to do anything illegal. Given that clients paid Palfrey just $200 to $300, it's possible her agency offered no-sex dates; in New York, at least, a full-service rate could be double that amount.

Got a question about today's news? Ask the Explainer.

Explainer thanks Carol Leigh of Bayswan, Juliana Piccillo of Sex Workers Outreach Project, Tracy Quan, author of Diary of a Married Call Girl, John Teakell of Milner & Finn, and Juhu Thukral of the Urban Justice Center.

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Michelle Tsai is a writer living in Jersey City, N.J.
Photograph of Eliot Spitzer by Spencer Platt/Getty Images.
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