November 17, 2010

Peeping State and Sex in the Backseat

Sex, in economic jargon, would be classified as an experience good. Like an intimate dinner in a restaurant, its value cannot be predetermined. Only after it has been consummated or experienced. How do the parties then agree on it's worth prior to the transaction? Don't worry, I don't intend to give you a lecture on the economics of marketing experience goods. My aim is quite different — to illustrate how government intrusion into private transactions can produce some strange and unintended consequences.

As usual, my journey into the evaluation of the costs and benefits of sexual transactions began when I was surfing for news about shenanigans of the state. According to what's on xiamen:

[W]hen a policeman was patrolling Phoenix Plaza along Yizhou Road, Linyi City, east China's Shandong Province, he saw a parked black Santana rocking and swaying [really, what else would you expect a car named Santana to do?]. When forcefully opened the car door he saw a man and a woman, naked in the car, the front seats were leaned all the way back, tissue paper and red bull cans on the back seat...

Two of them admitted that they were having sex at the time. Li Jingwei [an official at the Linyi Highway Bureau in charge of the State Highway 206 Yihe Bridge toll] also confessed that he and his 13 other female subordinates have the same kind of sexual relationships, and he also has 2 illegitimate children...

Li Jingwei soon found himself appeared to be impotent, the doctors diagnosed him with impotence caused by psychological reasons. Li thought that his condition was a caused by the policeman dragging him out of the car naked in public; therefore the police should compensate him.

Calculating with the rate of average 200 yuan per sexual intercourse, under normal conditions he should be able to have 5000 more sexual intercourses in his lifetime, the police should pay him 1 million yuan in compensation.

Well, I guess the policeman was well within his rights [and obligations] to investigate a parked vehicle that was rocking and swaying, although any high school junior in this country [and, I am pretty sure, in China, too] would have needed just one glance at the vehicle to tell what was going on. Beyond that, I believe, it's none of his business.

Why do these fellows in positions of power have an obsessive-compulsive desire to intrude into the sexual lives of others? Could it have anything to do with god's puerile interest in human sex? As Sam Harris had observed, "[God] has got galaxy upon galaxy to attend to, but he's especially concerned with what we do, and he's especially concerned with what we do while naked. He almost certainly disapproves of homosexuality...".

There is a perfectly natural explanation, too. With the 750,000,000:1 sperms to egg ratio in a single human copulation, the competition must be intense. So must be, envy and the desire to exclude others from getting at that precious egg!

I don't know if Mr. Li would be compensated for his loss in the end or not, but what about Mrs. Li? Shouldn't she be compensated, too? After all, with her husband impotent, she would have also been deprived of sex. If so, how much should Linyi City Police pay her? More, less, or equally? Could it be nothing, because Mrs. Li could divorce her impotent husband, and seek her pleasures elsewhere?

We have a precedence to help us along. From the same source, what's on xiamen:

A Guangdong Province woman decided to accept a 640,000-yuan ($ 95,941) cash offer from a company she blamed for an accident that left her husband permanently unable to have sex.

The woman, identified only as Wang, dropped her case after the employer, a petrochemical company in Dongguan, offered 640,000 yuan to cover her husband's injuries and for depriving her of a "right to have sex," the Dongguan Times reported Thursday.

Wang, according to the story, was 28. Assuming that both she and Li Jingwei were about the same age, does it mean a woman's expected value from future sex is less than that of a man? Does this give us cause to compensate Mrs. Li less?

Well, if you thought that things are getting hairier here, wait till you hear what my able research assistants, Google, have to say about the perils of sex in the back seat. No, I am not about to guide you on how to have safe sex in the backseat of a car — you can find plenty of material on it, if you wish, with a mere touch of your keyboard. What you are about to find out is that not just the amorous couple, but the car, too, is in grave danger of violating the law! Well, at least in Michigan.

From BENNIS v. MICHIGAN - CERTIORARI TO THE SUPREME COURT OF MICHIGAN, No. 94-8729. Argued November 29, 1995-Decided March 4,1996:

Petitioner [Tina Bennis] was a joint owner, with her husband, of an automobile in which her husband engaged in sexual activity with a prostitute. In declaring the automobile forfeit as a public nuisance under Michigan's statutory abatement scheme, the trial court permitted no offset for petitioner's interest, notwithstanding her lack of knowledge of her husband's activity. The Michigan Court of Appeals reversed, but was in turn reversed by the State Supreme Court, which concluded, inter alia, that Michigan's failure to provide an innocent-owner defense was without federal constitutional consequence under this Court's decisions.

Held: The forfeiture order did not offend the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment. Pp. 446-453...
REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., post, p. 453, and GINSBURG, J., post, p. 457, filed concurring opinions. STEVENS, J., filed a dissenting opinion, in which SOUTER and BREYER, JJ., joined, post, p. 458. KENNEDY, J., filed a dissenting opinion, post, p. 472.

What we are witnessing here is a consequence of Michigan State Law that declares a vehicle used for a crime as "public nuisance", and should be "abated" or put away. Because Tina Bennis' husband had sex with a woman for a fee, it was a crime, according to state law. The location of the crime was the backseat of the car that she owned, so the car had to be abated. Even if Tina had nothing to do with her husband's tryst in her car — wasn't in a ménage à trois, for instance — she was held responsible. She must, therefore, forfeit her car. Absurd, to put it mildly!

I agree with the dissenting opinion of Justices Stevens, Souter, and Breyer:

For centuries prostitutes have been plying their trade on other people's property. Assignations have occurred in palaces, luxury hotels, cruise ships, college dormitories, truck stops, back alleys and back seats. A profession of this vintage has provided governments with countless opportunities to use novel weapons to curtail its abuses. As far as I am aware, however, it was not until 1988 that any State decided to experiment with the punishment of innocent third parties by confiscating property in which, or on which, a single transaction with a prostitute has been consummated.

Where does one draw the line for personal responsibility? If the car in question had been parked in the premises of the county library, would the government have declared the library as a public nuisance and abated it, too?

A broader question is, should the State have a right to peep into the backseat of a parked car that is rocking and swaying, obviously to the rhythm of sexual activity? Would it matter if the sex were for free or for a price?

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