March 3, 2006


We have received a few dozen responses to last week's article on the sale of bootleg films in New York City streets and subways.  Some letters dealt with the theft of intellectual property involved in the illegal copying of motion pictures through camcorders.  Although some countries, particularly in Asia, do not believe in copyright laws, we believe that it is sad to see our streets and subways clogged by illegal vendors of stolen works of art.  Other writers were dismayed at the more general proposition we stated, that some laws are enacted but not obeyed or enforced by the authorities.  Highly selective enforcement leads to the view that the police are either incompetent or corrupt.
 
The laws against bootleg films are by no means the only, or even the most serious, situations where enforcement is, to say the least, irregular.  There are rules against vending certain products, or selling anything on particular congested streets, yet every day there are hundreds of vendors in violation of those rules.  Some receive summons, which are treated as waste paper, which they are.  The only effective way to punish an illegal vendor is to confiscate his merchandise or his vehicle until his case is tried, which should be promptly.  We know this from our experience over thirty years ago in the Department of Consumer Affairs.  To let the vendor and his goods remain on the street after giving the issuance of a summons to appear in court at a future date is as foolish as arresting a serial rapist and promptly releasing him on bail. 
 
It is true that confiscation reduces the number of summonses that can be issued, because the offenders' goods or vehicles must be removed from the site.  But what good are summonses which are either disregarded by the violators, or collected by their corporate employers and settled en masse for reduced fines, which become part of the cost of doing business, to be passed on to the consumer.  The public not only pays for the police through taxes, but pays the vendors' expenses for legal problems, which is a component of the cost of goods sold.
 
An even greater example of official hypocrisy can be found in laws dealing with sexual conduct.  The law prohibits prostitution, which may or may not be reasonable.  Certainly human trafficking involving sexual slaves, particularly youngsters, is highly offensive and ought not only be prohibited, but lead to serious penalties.  There is a slippery slope between forced sex with the kidnapped and voluntary sex with professionals who are well paid for their services.  There is also a difference whether sexual acts are solicited on the street or in public places, or are arranged privately and discreetly in places where others are not disturbed.
 
We note that substantial parts of some weekly publications are devoted to the solicitation of sexual acts, whether through erotic massage, role playing and discipline, or old fashioned conventional intercourse.  There are variations on all these themes which need not be described here; if you want to read about them and see the pictures, usually of women or parts of their bodies, there is no problem of access, the periodicals involved are usually free to the public, the ample revenues from advertisers paying the costs of publication and distribution.  Clearly, advertisers find it profitable to place their notices in these papers, because they do it in substantial numbers.  They pay extra for color, which basically serves to illuminate the skin tones of those who are offering the temporary use of their bodies to provide satisfaction to others, while at the same time earning largely untaxed income for themselves.
 
We do not suggest that the government interfere with these advertisements.  First, the cases would take forever to resolve and would end up before the United States Supreme Court, which is in the ongoing process of reconstitution, so no one can predict the outcome of a case brought today.  Second, many New Yorkers believe that adults have the right to seek sexual congress with others, and if an exchange of cash is needed to make the transaction equitable, that is not intrinsically illegal or immoral.  Why should those deemed physically unappealing for any of a variety of politically incorrect reasons be deprived of enjoying one of life's great pleasures simply because no one is willing to play with them on an equal basis?  Why should the thin, the young and the beautiful be deprived of the opportunity to support themselves by offering their services to others less physically gifted but equally desirous of the opportunity to bond?
 
What is strange, however, is that in the midst of this tolerated lawlessness, we periodically read of police raids on houses of prostitution, the arrest of madams and call girls, and the scattering into the night of miscellaneous johns, often married men from suburbia enjoying the temptations of city life.  During the Koch administration, the director of the city station WNYC, resigned because she would not broadcast the names and addresses of the customers on a program to be called "The John Hour."  The director, the late Mary Perot Nichols, was reappointed by Mayor Koch several years later, and served admirably.  But the issue shows our conflict on these matters.  Normally a radio program reporting on crime and listing the names of those arrested would be appropriate, many small newspapers publish a daily police blotter, listing such activity.  But are Johns criminals?  And, even if they are, why should their wives and children be exposed to ridicule and taunting through publicizing their names?  Why should their marriages be threatened and their families destroyed because the government went out of its way to degrade them for an act of infidelity whose degree of sin we cannot measure without knowing more about the families than we want or need to?
 
When dealing with unenforced laws, bootleg films merely scratch the surface.  The common thread in these examples is that society wishes to make some conduct illegal without necessarily punishing those who engage in it.  What to do here comes down in many cases to the exercise of human judgment, and there is no law that can provide justice in the variety of human situations that may be produced by human experience.  So do not get too excited by any of this, and, if you are interested, try to work out reasonable and equitable solutions for the gradations of conduct involved in issues where there is no clear signal as to how to achieve fairness.  This is not to say that there are not many situations where the desired result should be clear, and many laws which require enforcement for reasons of morality and public safety.  It is just that, in some cases, both differences in values and in fact situations make justice much more difficult attain, and we have no cause to be upset about that. 
 
There are many other areas where there is an enormous dichotomy between law and practice, and we do not mean to neglect them.  Taxing cigarettes sold on Indian reservations in New York State is a current issue.  Tax law enforcement in general is often selective, if not intentionally then because of resource limitations on government agencies.  Speed limits on highways are generally not read literally by police officers, the speed of the road often exceeds the permissible limit.  Any readers with examples of situations where there is a particularly wide gap between law and reality are invited to let us know about them.
 
The gap between law and practice invites abuse and corruption.  It is difficult in many cases for a law to precisely match equity.  There are the kinds of things that practical reformers should concern themselves with.  People who are not primarily concerned with making the revolution should devote some time to the improvement of situations where law and common sense conflict.



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