THE BLOG
04/18/2008 04:45 pm ET Updated May 25, 2011

Who are You Calling a Prostitute?

The same people who excoriated Randi Rhodes for merely opining two prominent Democrats are political whores, have nothing to say about virtually the entire media calling innocent women hookers, even though the accused have neither confessed to nor been convicted of prostitution. Rather than condemning this real misogyny, many "progressives" -- including those who consider themselves feminists -- have chosen to focus on Rhodes, and pin an utterly phony charge of sexism on her.

The real misogyny has been perpetrated by journalists from outlets including the New York Times, Reuters and United Press International, who insist on referring to escorts hired by Eliot Spitzer as "prostitutes," and the escort service that employed them as a "prostitution ring," as if the referenced parties have already been found guilty in a court of law. The Associated Press went so far as to state it's a "fact that Spitzer's betrayal involved prostitutes." A fact.

How are defendants supposed to get a fair trial after they have been repeatedly identified in the media as criminals? Aren't those who pegged them as such vulnerable to defamation charges? Whether or not one can fathom escorts suing for libel or slander, it seems Erica Jong and other feminists should be speaking out on their behalf. Instead, Jong recently turned her attention to another phony charge of sexism, a description of Hillary Clinton's "flabby arms."

According to media ethics experts, it is imperative to distinguish between an accused and convicted criminal. Anybody who regularly reads, watches or listens to news reports, knows that correspondents and anchors generally use words like "alleged" to characterize individuals who have not actually been adjudged as lawbreakers. Nonetheless, nobody has even noticed how coverage of the Spitzer story has been repeatedly marred by flagrant violations of this time-honored journalistic custom. Indeed, the absence of controversy is astonishing.

Labeling the escorts "prostitutes" is an insidious way to make it seem as if Spitzer's guilt is undeniable. That is, if he hired prostitutes, the automatic assumption is he hired them to engage in acts of prostitution. Of course, the connotation would be less severe if it were instead reported, more accurately, he hired escorts. Likewise, it would thwart the nefarious aims of the media lynch mob if this inconvenient truth were revealed: There is no publicly known evidence of Spitzer's criminality.

The most important factor that's been ignored in Spitzergate, is escort services are legal, as is having unpaid consensual sex that's incidental to paid companionship. To convict him of violating any prostitution laws (including the Mann Act), prosecutors need direct evidence Spitzer made an explicit agreement to pay for sex rather than companionship, and there is no reason to conclude Spitzer ever made -- or needed to make -- such an agreement. Yes, the transcript of a wiretapped telephone conversation indicates Spitzer might prefer his horizontal recreation without a condom. But aside from embarrassing the former governor, this revelation is meaningless, because it does not establish that he did anything illegal.

Before anyone analogizes my reasoning to Bill Clinton's claiming that fellatio isn't sex, it should be remembered Clinton's "defense" was quite novel. By comparison, I'm simply pointing out where the burden of proof lies in all prostitution cases. It's why cops need to go under cover in massage parlors, posing as customers, to obtain evidence.

Whatever the exact statistics might be, it's clear some encounters with masseuses and escorts are lawful. Not only might Spitzer have enjoyed intercourse or sodomy without ostensibly (wink-wink) paying his escorts for it, there is also the possibility he paid for sexual role-playing that's perfectly legal.

Some have suggested Spitzer's public apology and resignation are proof enough he paid for sex. But this reasoning is faulty in at least two ways: 1) Spitzer confessed to no crime, and 2) The escorts shouldn't be branded as criminals based on anything Spitzer says or doesn't say at a press conference. Pundits have attached way too much significance here to a non-denial of lawlessness.

It's not that I think Spitzer is pure; it's that his abrupt and unexplained exit from public life could conceivably be attributed to all sorts of factors that wouldn't necessarily have been obvious at first. For example, he might have quit to avoid being indicted for a completely unrelated matter. Also, the list of charges Spitzer is rumored to be facing, is lengthy and fanciful. Why would he want to publicly address all this absurdity? Where would he begin?

It's especially nonsensical to suggest Spitzer is guilty of money laundering, because the definition of that crime doesn't even fit anything he is said to have done. Laundering is cleaning dirty money, whereas Spitzer is accused only of spending his already clean money on a prohibited act.

The crime that's been tagged on Spitzer most often is structuring. This offense involves making payments of less than $10,000 for the purpose of evading reporting requirements that apply to payments of $10,000 or more. But nobody has cited any evidence Spitzer would have made individual payments of $10K or more, if it were not for the reporting requirements. The cost of each escort meeting is well below $10K, and it's customary to pay for only one encounter at a time.

Even if compelling evidence of guilt surfaces in the future, it won't excuse the abuse Spitzer and his supposed prostitutes have so far endured. Certainly, the accused have been subjected to treatment that conflicts with the usual rules of engagement. Such drastic departures from the norm require an explanation at the very least.

Click here to listen to Jeff interview journalists Fred Brown, Allison Kilkenny and Jason Leopold about media coverage of the Spitzer story.