THERE'S SOMETHING quaint about the prosecution of Heidi Fleiss. And it's not only that being accused of making money by selling sex in Hollywood, home of the casting couch and the gratuitous nude scene, is so rich with irony that it's a better subject for a comic novel than a column.
It's the strange prospect of law enforcement types blazing in to save our society from getting caught in the dangerous cross-fire of genitals for hire. On one coast the cops are busting sex workers on Eighth Avenue, dragging them downtown to night court where they pay the fine and go right back to their corner; on another they're charging Heidi Fleiss with pandering in a town in which the verb is a term of art.
Either way, there's something foolish about the waste of official time and taxpayers' money involved. When Julia Roberts can manage to turn paid sex work into a hugely improbable -- and hugely successful -- on-screen cross between meeting cute and marrying well, mightn't it be time to rethink criminal penalties for prostitution?
It's an issue that's always been rife with hypocrisy. When the mayor of New York tried to sweep the streets of streetwalkers in 1855, one of the city's most prominent citizens, George Templeton Strong, wrote in his diary that "what the mayor seeks to abolish or abate is not the terrible evil of prostitution" but the open display, "trying to keep vice from proclaiming its allurements in the market place."
Today the New York City Police Department reports that, so far this year, "street" arrests were nearly three times the number for "inside" prostitution, although many of those familiar with the sex industry say there are many more women working inside.
As Strong noted, the crime is not so much selling sex as selling it openly.
That is why the prosecution of Heidi Fleiss, a pediatrician's daughter who authorities contend ran a call-girl ring for some of Hollywood's most prominent male citizens, is aberrational.
Historically, it's been street prostitutes who get arrested, because they're not hidden from public view and because they and their customers are poorer and less powerful than those who patronize the East Side bordellos that are an open secret in New York.
This year the city cops have instituted a program called Operation Losing Proposition, in which they are increasingly busting customers to remove the sex bias from sex work.
That's not a new idea. As a judge here 75 years ago wrote: "The men create the market and the women who supply the demand pay the penalty. It is time that this unfair discrimination and injustice should cease."
In 1979 Mayor Edward I. Koch touched off a worldwide furor when he announced his plan to broadcast on the city radio station the names of those convicted of patronizing prostitutes in something Mr. Koch called "The John Hour."
But the real issue is not sex bias. The issue is privacy. Why is the decision by a woman to sleep with a man she has just met in a bar a private one, and the decision to sleep with the same man in return for $100 subject to criminal penalties?
A 1977 study entitled "Sex Bias in the U.S. Code" concluded: "Prostitution, as a consensual act between adults, is probably within the zone of privacy protected by recent constitutional decisions." A co-author was a law professor named Ruth Bader Ginsburg.
Those who live in neighborhoods where prostitutes congregate will argue vociferously against decriminalization, describing loud and boisterous behavior, public sex acts and nudity, and other criminal activities that follow in the wake of street prostitution.
There are statutes against all those things quite apart from the ones that prohibit soliciting money for sex.
Once prostitution was blamed for spreading syphilis, today for passing on the AIDS virus. Condoms, not criminalization, are solutions to both.
Of all the public campaigns against street crime, probably the most unsuccessful, over time, has been the one to drive people out of the business of selling sex.
Police, judges, court officials and hours of law enforcement time are wasted on a practice that shows no signs of abating, either in supply or in demand.
The prosecution of Heidi Fleiss is no exception. The only lasting thing to come out of it will be that someone will probably make a television movie of her life. Now that's what I call pandering.
Anna Quindlen is a columnist for the New York Times.