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"The sexual conduct inside [swingers' clubs] is not prostitution, it is not sexual contact with minors, it is not sexual assault," says American Civil Liberties Union lawyer James Belanger, who is working with Kaup and DePrima on behalf of the clubs. "If it were, the city would have an independent basis to prosecute and close the clubs. The city does not have this basis."
The city also has no business working closely with the National Family Legal Foundation, fumes Kaup.
"They [the city] have a hundred lawyers over there, and they're having some right-wing Christian group do their research for them? I think that's completely improper. Knowing that, you have to ask yourself if, by banning adult social clubs, the government of Phoenix really, truly acted in the interest of the broad population of the city . . . or if the government acted at the behest and with the assistance of a group with an overt political agenda, and a very narrow interest that does not reflect the broad population of Phoenix.
"I believe the government working hand-in-hand with such a group to pass a law restricting the liberties of a small minority is offensive to the basic principles of democracy."
Hays shrugs that off. "They [the NFLF] have a lot of attorneys, just like we do here, but they specialize in areas of this sort. I have a million other things to do, so, yes, I requested their assistance."
The city attorney also says he believes the sex-club ban does represent the majority opinion of Phoenix citizens. Put to a vote, he says, the law would stand.
"I don't believe most people, even punching a ballot in secret, are going to say, 'Yeah, let's have a sex club on every corner.' I think some people might say, 'One or two, okay, people are entitled to that much aberrant behavior,' but where do we draw the line--six? Sixty? Six hundred, until every back room in every Circle K is a sex club? Or should we keep it like we keep most things sexual in this society--kind of under wraps?"
In September, Nelson received a shocking letter, purportedly written by the mother of a 15-year-old girl. The author alleged her daughter was allowed into Club Chameleon, where an unknown person asked her to dance naked and perform sex acts in exchange for money and drugs. The letter contained no contact information for verification, and was unsigned.
Hays forwarded the letter to City Manager Frank Fairbanks, who sent a copy to Police Chief Harold Hurtt, with this cover letter: "Attached is a letter which was sent to City Council concerning the Chameleon Club [sic]. Apparently, minors are going to this club for sex and drugs. Please take effective enforcement action."
According to City of Phoenix interoffice memos, the Phoenix Police Department's Vice Enforcement Unit assigned four undercover officers to investigate Club Chameleon. The officers found no violations of any law. The detectives even checked the identifications of several female patrons and found they were older than 18.
Those same detectives then investigated three other swingers' clubs--Impressions, Encounters and Sociables II--and observed no crimes.
Before city council members voted to approve the sex-club ban, they--and the public--were presented with a thick "Factual Report" of information on Phoenix swingers' clubs. This record contained lengthy undercover reports by a zoning official identified only as "Inspector Z," who described in lurid detail dozens of legal sexual acts within one of the clubs.
Conspicuously absent from the Factual Report was any mention of the four police undercover investigations, which found no evidence of drugs, underage patrons or prostitution.
The Factual Report also lacked even a shred of evidence supporting the city's claim, as detailed in the language of the swingers' club ordinance, that "the operation of a live sex act club contributes to the spread of sexually transmitted diseases."
The city has brought forth no such proof since.
All Phoenix swingers' clubs have posted policies requiring male patrons to wear condoms, which are freely available inside the clubs.
"Obviously, no one's going to interrupt an act in progress and say, 'Excuse me, sir, but can I conduct a condom check?'" says Roe. "But for the most part, we're all safe."
AIDS activist Jeff Ofstedahl, Phoenix Mayor Skip Rimsza's representative on a council that allocates all federal funding for HIV and AIDS prevention, does not buy the claim that swingers' clubs are hot zones for sexually transmitted diseases.
"I will testify against the city on this issue," he says. Ofstedahl cites a 1991 Dade County (Florida) health department study of Miami's gay sex clubs. "That study found that [sex club] members have a higher propensity for engaging in safe sexual activities because of the peer social support to do so."
"I think these clubs are highly honorable entrepreneurial endeavors," he says.
So why ban them?
Hays says, "It's a way to balance our puritanical philosophies against the realities of everyday life in a decent sort of way. So our kids can grow up in a society where we foster the illusion of no open vices."