“That ain’t workin’
That’s the way you do it Money for nothin’ and your chicks for free” – Dire Straits, “Money for Nothing”
Here’s something you already know about our government–they break the very laws that would get you and I arrested. On every level, our government may break its own laws. And no, I’m not talking about the families of congressional members that may conduct insider trades that would place you and I in Martha Stewart’s old cell, I’m talking tiny misdemeanors involving humanity’s oldest profession.
We all realize, at some basic level, that our government may lie to us. Our government may deceive us. And, our government may break the law. From a criminal defense attorney standpoint, whenever law enforcement breaks the law in order to arrest my client, I’m looking for entrapment issues. An entrapment defense is telling the court that our client should not be prosecuted because the arrest was created by police conduct that should not be tolerated. The issue often becomes one of deciding whether our government promoted a crime, or detected it. When it comes to entrapment, the level of inducement becomes an important factor for courts to consider. See Munoz v. State, 629 So. 2d 90 (Fla. 1993). So, just how far can our government go in order to “detect” a crime?
There’s a long list of illegal activities that the police engage in to catch criminals. Government officials go undercover and deal crack cocaine in our inner cities, in order to catch potential buyers. As Chris Rock was fond of saying, crack sort of sells itself, and the term “sale” may not appropriate here. In these cases, entrapment can be a difficult defense because the undercover dealers are probably providing a low level of inducement, if any at all (crack sells itself, so there’s not much inducement).
The same cannot be said of prostitution. Don’t get mad at me for saying this, but many folks would participate in prostitution if the price was right. Would you have sex once for $1,000,000.00, tax free? How about $100,000? How about $10,000, for just an hour of “work”? Again, by indulging in pricing scenarios, we’ve already established that folks woudl be willing to be a prostitute, we’re just negotiating price, or the level of inducement. The movie Indecent Proposal exposed the dirty fact that some women would become a prostitute just once if the price were right. Oh, but that was just a movie, no women would take a million dollars for one night. Pure Hollywood fiction, I’m sure.
Prostitution is one of those unique crimes in which a certain level of inducement might entrap an otherwise innocent person into doing something criminal. Our laws seem to be all over the board on this issue. For example, with proper licenses, it is perfectly legal to shoot an adult film, and the people within that film are having sex for money, essentially. That’s not against the law.
Also, some sexual acts perfectly legal so long as the prostitute has enough of an education to “treat” her customer, a prime example being sex therapists who are surrogates for disabled citizens. I’m not suggesting that Helen Hunt was a prostitute in the excellent movie “The Sessions”, I’m merely suggesting that Helen Hunt’s character doesn’t have a monopoly on using sex to make the world a better place, I’m sure illegal prostitutes have helped out plenty of men that could not otherwise gain access to sex through the health care system. Yea, I said it. We all know that high blood pressure jerk that simply needs to get laid. But he can’t, it’s illegal in Florida. When Helen Hunt’s paraplegic john had her money on ready on the table, Hunt notes that “Although the aim is for us to have sex, I’m not a prostitute. You don’t have to pay me upfront. I have nothing against prostitutes, but there’s a difference.” Really?
Howard Stern has been helping guys out in this department for decades. Here’s how Howard’s surrogate operation works: Howard has numerous virgin men come onto his radio show and give the audience their sob story as to why they have not been able to have sex all their lives. For the man with the best story, Howard arranges a date with a porn star. Is this so wrong? The health ministry in Brazil recently caught some flack from the PC Police because they ran an ad with prostitutes saying things like “I am happy being a prostitute”. Remember, phrases like “I am happy being a prostitute” will put the American feminist alert level to “ORANGE” (look, the alert is typically on YELLOW or ‘elevated’, but such statements will not take the level all the way to RED, that’s all I’m saying). After all, in America, a woman can do whatever she wants with her body so long as you narrowly define “whatever” as an abortion–sex between consenting adults is not included in the definition of “whatever”. Ok, we’re a little off topic here, so back to big legal words and case cites.
How far is the government allowed to go in order to convict a citizen of prostitution? This very issue is being debated in Hawaii right now (HB 1926). Hawaiian law permits the police to have sex with prostitutes, and some Hawaiians want to repeal this free pass. For those of us doing criminal defense work in Florida, this sort of law enforcement activity is not surprising. Florida’s law is a bit different, as it does not expressly grant or deny law enforcement permission to have sex with prostitutes. The sexual activities of Florida law enforcement are taken on a case by case basis. In essence, the sexual conduct of the police will factor into an objective entrapment (outrageous police conduct) analysis.
For example, in the case of Florida v. Herrera, the police were conducting a sting operation and Herrera’s defense attorney filed a motion to dismiss based upon objective entrapment (outrageous police conduct). (Palm Beach County, 04-27232-MMA, Judge Barry Cohen) The issue involved an undercover officer touching a prostitutes breasts so he could prove he wasn’t a cop (urban myth, of course). Judge Cohen denied the Motion to Dismiss, but his heart was in the right place, explaining that the “costs of attempting to enforce our prostitution laws is not only financial. Enforcement of these laws also degrades the image of law enforcement. In this case, the Court finds the image of a police officer touching the breasts of a suspect (even over the shirt) to be offensive, repugnant, and outright disgusting. This case involves a misdemeanor, and not a serious felony. Nevertheless, this Court cannot substitute its personal opinion in the place of legal precedent.“ Id.
Judge Cohen goes on to list several cases in which police conduct was found to be perfectly legal; “Anchorage v. Flanagan, 649 P.2d 957 (Alaska App. 1982) (Defendant stroked undercover officer’s penis several times); Neeld, 5 Fla. L. Weekly Supp. 275a (officer dissuaded defendant from leaving a park; followed defendant into woods; simulated rubbing of his penis; unbuckled his pants clasp and zipper); Chiaverini, 5 Fla. L. Weekly Supp. 699a (undercover officer permitted naked defendant to rub his genitalia while he lay naked on a table); State v. Crist, 281 N.W. 2d 657 (Minn. 1979) (Undercover officer acceded to demand by prostitute to expose himself before they negotiated).” There’s more where this list came from, but you get the point.