Photo by Marc Schäfer on Unsplash

The dictionary defines “vice” as a “moral failing” or a “bad habit.” If I were writing on a blank slate, I would define it as an area of criminal codes where people with power and time on their hands attempt to impose their values on others. Perhaps that comes from being forced by the dictionary to look at enchiladas as a vice.

It’s a valid criticism of my proposal that all crimes substitute a collective judgment for an individual judgment. Most criminal codes start off with killing and stealing as crimes unless the victims are American Indians and the public support drops off a tiny bit with every crime added.

There are reasonable arguments to be had even when we could all agree that the conduct is wrong, because criminal law is such a blunt instrument that it just makes no sense to attempt making all bad conduct a crime. Most of us would agree that it’s wrong to fail to pay a contractor for materials furnished and wages earned. But how can it be a crime if the president of the United States made it part of his business plan?

The line beyond which conduct is criminal moves over time, sometimes drawing back from crime and leaving a civil wrong and sometimes going all the way from criminal to legal. Sexual activity with a person of the same sex has gone from a capital crime to legal in a relative eyeblink. The line moved in the other direction when it became a criminal assault and battery for a man to use physical discipline to control his wife’s conduct. When I was an active judge, it was clear that some men had not gotten the memo on that change.

The stuff we call vice is conduct that would cause gentleladies to make faces and clutch their pearls. Vice has its own language and customs. Early in my time as a municipal court judge, I opened up a criminal complaint and read to a man in front of me that he was charged with a criminal offense, to wit, “gaming with balls.” I took that to mean raising just before a draw to an inside straight. In fact, he was charged with wagering on the outcome of a billiards game. Live and learn.

Honest cops generally hate working vice because they are almost always cast in the bad guy role, meaning they are arresting somebody for doing something they want to do and see no harm in doing. Dishonest cops love working vice because great sums of money go by regularly and all the money is off the books. Police forces concerned with such things rotate service on the vice squad.

Texas police officers gained another reason to like the vice assignment when an appellate court held that law enforcement orgasms were no barrier to prosecution. Some hookers believe that if you ask him whether he’s a cop, he has to answer truthfully. Others believe you can insulate yourself by never touching the money. Most common is the folklore that, if you suspect he’s a cop, ask him to drop his pants — if he’s a cop, he won’t dare. Wrong, wrong, and wrong with an orgasm on top.

When I was learning to practice law, the Austin vice squad ran a bunch of stings on “massage parlors.” One of the lawyers I worked with got permission to depose the most active of the undercover officers by explaining to the trial judge how many cases the man had made. I was very interested in watching this deposition, but the lawyer made me stay out.

As a result, the persons in the room were the defendant, the (female) court reporter, a female para-legal, and female defense counsel. By luck of the draw, the prosecutor on the case was also a woman. While I was not allowed to be present, I was able to read later the minute details he was asked to remember, particularly the part about how he was feeling. She actually got him to state under oath that he did not enjoy an orgasm. None of that officer’s cases ever got to trial.

My favorite sex case was not commercial. I should have had a clue that something with entertainment value was about to happen when a dozen or so criminal defense lawyers ensconced themselves in spectator seats before I called the case.

The police were summoned to the Sixth Street cabaret district in Austin, where a heterosexual couple was making the beast with two backs on the very edge of the roof of one of the bars. A rather large crowd had gathered below, shouting encouragement. The evidence did not reflect the impact, if any, on beverage sales.

The officers who answered this strange call climbed to the roof by the fire escape in the rear and arrested the couple. There were technical problems making an exposure case at that distance, so they were taken in for criminal trespass, on the theory that permission for the public to be in the bar did not extend to the roof.

It becomes relevant to note that all this happened within four blocks of the police station, because the arresting officers told the proprietor to come to the station and sign the complaint. After they waited over half an hour and nobody showed up to complain, they released the couple with the admonishment to “get a room.”

I was beginning to wonder how this case got to court as one of the criminal defense lawyers passed a note to the bailiff which the bailiff passed to me. I opened it and read:


We are bidding on the movie rights to this trial. The working title is “Diddler on the Roof.”

I was barely able to keep my composure as the evidence plowed on and showed that, later in the evening, the same officers were called to the same bar, and discovered the same couple engaged in the same act on the hood of a car in the parking lot behind the establishment. This time they were charged with exposure.

I should mention that only the male half was on trial. The woman had pled no contest for an agreed deferred adjudication. This was, after all, the People’s Republic of Austin.

After the male half put on no defense, I found him guilty and reset the case for a pre-sentence investigation. A couple of weeks later, I read over that document and discovered that the man had no criminal history. I said to him:

Sir, this appears to me to be a probation case and I wanted to tell you that first so you understand you don’t have to answer what I’m about to ask and your answer will have no bearing on your sentence. Your friend got a deferred adjudication. I can’t give you that because you went to trial and I’ve already found you guilty. But you had no defense and it must have been humiliating to sit through that. Why didn’t you just plead out for the same deal she got?

I couldn’t plead guilty, Judge. She’s my best friend’s wife.

If I had the necessary accoutrements, I would have made a face and clutched my pearls.

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