Browsing through the nightlife and entertainment pages of the DC City Paper makes it clear that politicians and policy types are having their "needs" met by prostitutes or call girls on a regular basis. But poor immigrants visiting prostitutes in Annandale is not what one might expect if one's expectations are limited to the predictable and self-evident.
Then again, little in the current legal approach to prostitution is self-evident. Can we really form reasonable expectations about human behavior if laws discourage a reasonable understanding of human action and behavior? For example, in USA v. Wade Charles Edward, which came before the DC Court of Appeals in 1998, the judges essentially quibble over a conflict between the federal government's application of common law to a older statute before deciding to vacate an order of abatement, thereby siding with the defendants. Note that the language of the discussion shows that owning a brothel, or a house used for the purpose of prostitution, used to enter the legal system as a violation of D.C. Code § 22-2717, providing criminal penalties for anyone convicted of keeping "a bawdy or disor- derly house" in the District of Columbia.
In the accompanying footnote, the court characterized the house of prostitution "as a typical 'disorderly house,' " id. at 514 n.5, which, of course, it was. As we have pointed out, however, that a bawdy house is a disorderly house does not imply that the reverse is necessari- ly true. Because there is no doubt that the property in Raleigh was used for "lewdness, assignation, or prostitution," D.C. Code § 22-2713, there is no question that it fell within the ambit of sections 2713 and 2717.
The Raleigh court did not have before it the question whether a disorderly house not used for such purposes is the kind of nuisance referred to in section 2717. Nevertheless, even if its discussion of disorderly houses purported to decide that section 2717 applies to a disorderly house of any kind, we would still not be bound by it. Because that issue was not before the court, its overly broad language would be obiter dicta and not entitled to deference.
Kendall, 35 F.3d at 466. Accordingly, we conclude that, if confronted with this question, the D.C. Court of Appeals would hold that conviction for keeping a disorderly house under section 2722 will require an abatement order pursuant to section 2717 only if that house was used, at least in part, for the purposes described in section 2713.
A "disorderly house" is not really about messiness or drugs or even moral hazard in general-- it is a very specific criminalization of running a prostitution establishment. Andrea Dworkin would be pleased to note that the pimps/owners are punished rather than the prostitutes, since the code does not touch the question of agency in the case of individual sex entrepreneurs.
