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.

About Victoria Erfesoglou

Victoria Erfesoglou is licensed to practice law in California and Texas. She practices criminal defense in Harris and contiguous counties. She is a proud graduate of Gideon's Promise and Harris County's FACT Program. Victoria is extremely please to serve as the Assistant Director of the Texas DNA Mixture Review Project. She is deeply committed to indigent defense and fighting the systemic failures of the criminal justice system. She has certification in the Greek language and degrees in Psychology and Philosophy.

Twitter: @VErfesoglou