Vice: Sexual Contact and Beyond “To Make a Case”

White_Lily_Spa,_Tisbury_Court,_SohoThe scene is a massage parlor. An undercover officer pays a $60 door fee to the manager and walks into a private room waiting to be taken care of. The manager has been arrested and released for charges related to prostitution more than once. The officer has a wire and a team of other officers in the area. A woman comes in. She speaks little English, is nervous and scantily dressed. She massages his naked body and then an agreement is reached to exchange sexual acts for money. At that point an arrest is made, right? Wrong. The officer touches her breasts and genitalia, and asks what he will get for all of his money. Sometimes the officer will say he was forced to sexually fondle the woman or have his genitals rubbed so that the woman wouldn’t suspect he is an officer. One would think that after he has made it through the “manager,” the locked entryway with bars on the windows, the waiting area, and into a private room where he is lying nude on a massage table; his concerns would be dispelled. But I digress.

Many male undercover officers are engaging in sexual acts with female suspects. Recently an officer (in Harris County) testified that he had to keep going so that he would not ruin his cover, even though he arguably had enough to make his arrest. Ironically, he also testified that his investigations, and thus his acts, are necessary to protect these woman and stop human trafficking. It is hard to reason how fondling a woman’s breasts, or private areas, or engaging in other sexual acts with her, is necessary to protect her. But, once again, I digress. As is often the case with male undercover officers, more is needed to conclude their investigation, at least according to them.

How do we want our officers to behave? Why are female undercover officers not engaging in sexual acts with male suspects, and still making arrests for prostitution? How much of a woman’s body can a male undercover officer violate, touch or fondle before the conduct is sufficiently outrageous as to violate the concept of fundamental fairness inherent in due process rights?

In 2015, Mary Moriarty, chief public defender in Hennepin County (Minnesota) denounced male undercover officers’ sexual contact with women suspected of prostitution. Her work, along with others, would later result in the Minneapolis police department discontinuing all prostitution undercover investigations pending a review of its policies. The Minnesota Court of Appeals addressed this conduct by undercover officers when it reversed a prostitution charge discussing pre-arrest sexual contact by officers. Moriarty’s office defended a woman with prostitution charges involving acts at a massage business. The acts included touching and exposure. The audio recording from the undercover officer portrayed about 30 minutes of small talk, compliments of the woman’s anatomy, and the officer flipping over and having his genitals touched as part of the massage before other officers were signaled to come in and make an arrest.

Minnesota Judge Amy Dawson condemned such behavior by an undercover officer, saying his conduct was outrageous when he “initiated sexual contact that [wasn’t] required for the collection of evidence.” The officer directed the woman to rub his genitals when she asked if there was an area she missed during his massage. A price was then negotiated for more acts “to take care of him.” The officer’s lawyer argued that though his conduct might be distasteful, it was not a due process violation.

Women in these environments are often traumatized, victimized and vulnerable. Allowing officers to engage in sexual acts with them, with immunity, “to take care of [the officers],” allegedly for their overall protection and to combat human trafficking, or for any other reason, adds insult to injury. It is gross, unnecessary, and probably not acts that civilized members of society want to think of their officers doing. This behavior is not unique to Minneapolis. It is alive and well in Harris County, Texas.

Conversely, female undercover officer stings are not unheard of, and do not involve sexual contact. Perhaps not surprisingly, female undercover officers do not behave similarly and do not engage in sexual acts with male suspects. In Watson v. State, 10 S.W.3d 782 (Tex. App.—Austin 2000), a female undercover officer acting as a decoy solicited a “john” to prostitution verbally. No sexual touching was involved and an arrest was made. Often, sexual touching is not necessary to make the encounter criminal, yet male undercover officers testify, with immunity, about such sexual acts, and claim they are a necessary part of their job. This immunity is not a creature of legislative creation.

For instance, undercover drug investigations involve statutorily sanctioned deception. Wilson v. State, 311 S.W.3d 452, 463 (Tex. Crim. App. 2010). Health and Safety Code § 481.062(a)(4) allows officers in the lawful discharge of their official duties, to possess controlled substances, without fear of penalty. Id. There is no legislative exemption for officers to commit prostitution, sexually assault women, compel prostitution, or engage in sexual acts with female suspects. Officers who participate in a crime in Texas may testify freely under Tex. Penal Code Sec. 43.06 as an accomplice. Officers in prostitution cases get immunity from prosecution under this theory as an accomplice witness furnishing testimony and/or evidence. George E. Dix & John M. Schmolesky, 6 Texas Practice: Criminal Law sec. 25.6 (2d ed. 2015).

Due process rights under the US and Texas constitutions protect people from abusive government action. U.S. Const. amend. XIV; Tex. Const. art. I, § 19. Even a predisposed defendant may have this kind of protection when police over-involvement reaches a “demonstrable level of outrageousness.” Hampton v. United States, 425 U.S. 484, 495 n. 7 (Powell, J., concurring). Continuing to allow these officers to freely engage in sexual contact with these women is outrageous.

Do we think it is acceptable, moral, and lawful for these officers to get “taken care of” while investigating female suspects? Are we comfortable with showing these woman, who are often victims of addiction and poverty, that officers can continue to engage in sexual conduct with them, with immunity, and no due process implications? Female undercover officers have shown that sexual contact is unnecessary to make an arrest. This sexual conduct by male undercover officers is despicable and continuing to allow these officers to engage in this conduct with immunity is tragic and arcane. It reeks of the continuation of the marginalization of women, and specifically, a group of women that is arguably already condemned by the legal system before they even reach a courtroom.

Judge Not, Lest Ye Create Stupid Law

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There is nothing dumber than outlawing prostitution.

Whether one simply notes that this approach has never worked in all of recorded history, or takes the stance as a libertarian that it is none of the government’s business what consenting adults do in their private lives, or that doing so unfairly punishes the provider and not the user, or that it actually increases human trafficking across the globe as a practical matter, there is simply nothing that is a greater waste of time or human effort. I would note that it is also contrary to the teachings of the New Testament, wherein that scrappy little freedom fighter of forgiveness we all call Jesus took in and cared for a woman named Mary Magdalene who, according to some scholars, followed the world’s oldest profession as a pagan temple priestess prior to meeting Jesus.

So, when we look at how Texas treats this particular crime, it is clearly time to bring our somewhat quirky state into line with practical, compassionate conservative thought. First, as good conservators of our Texas tax dollars, what does making prostitution a crime gain us as a society? Well, as it turns out, not much.

Texas treats this particular crime as one that is enhanced by prior convictions and as a crime of moral turpitude. This has a double-edged effect. As a crime of moral turpitude it means that almost no employer or state licensing agency will permit any person, often women, from getting a job or skill [nurse, for example] that could lead to a job. So, by convicting this person of such a crime, one pretty much guarantees that they will never rise above a minimum wage job. This leads to thousands of unemployable, non-productive citizens who cannot climb up the ladder of decent work or pay taxes or buy a home. Since they often have children to support [that is sadly how many of them got into this line of work to start with, if they were not kidnapped from Mexico or Moldavia or Vietnam] this creates another burden for the system. Worse, we enhance the punishment range with each subsequent offense, and on the third such charge a person can be made a felon. A felon. We make people, mostly women, felons for providing a moment of comfort with the most basic human act to other people, mostly men, who bear little scrutiny for such acts, though recently some District Attorneys, in an “enlightened change of policy,” have been arresting the users of such services and releasing their photos to publicly shame them.

Felons also have a difficult time pursuing work, as our readers may have noticed. There is little one can do to alleviate a past criminal record in this state for these issues, since a bill to permit victims of human trafficking to get pardons died in the legislature this past season. Based upon our new governor’s lack of compassion as shown in the past pardon season, they had little hope anyway. However, to continue to pay tax dollars to jail, feed and care for women who most likely would choose another line of work if possible seems, well, either a foolish waste of tax dollars, or a stupid waste of jail space for actual offenders who rob and shoot people.

crazy horseDo not even get me started on how our police “enforce” our morality laws on prostitutes. These poor dedicated officers must, on taxpayer dime, go and drink at houses of ill repute [massage parlors and strip joints] posing “undercover” as potential clients and force themselves to endure such horrors as lap dances, oiled massages with or without a happy ending, and must do so over…and over. One shudders at the sacrifices they make, sometimes for year after year on the same vice squad. Yes, our boys in blue do indeed suffer in our name, all with taxpayer money. Lord knows I would not want them chasing an armed robber; what good could come from that?

So, we spend taxpayer money to punish one gender for trying to live, even though many are doing this against their will. We criminalize and fine and jail them. We make it impossible for them to leave the life and get different jobs because we give them, not just criminal convictions, but felony and morally dark convictions that stay with them forever. We actually encourage human trafficking when we do this because it is the potential illegal profit that motivates those cold bastards who smuggle these women and often children into our ports. We do this to achieve the public goal of…what, exactly? Eradication? Hmm, that has not worked. Moral order? Any system that punishes the weak and the helpless for an act that men have paid for since the time of the pharaohs serves no moral order, and in fact is against the very teachings of every faith from that of the Prophet to the words of Christianity to the kindness of Buddhism. Nor does it make the act safer when we drive it into the shadows. Making pompous politicians proudly puff and say they are helping bring back family values whilst lying through their teeth? Ahhh, now there is something that we as Texans could hang our collective policy hats on.

I have a friend who wears a bracelet reminding her to be a good Christian, and it asks, in acronym format, “What would Jesus do?” Frankly, I am afraid he would treat most of us like the moneychangers in the temple, kick our ass, and tell us to get back to the drawing board when it comes to the laws on prostitution in this state. It would be the only sensible thing to do.