The Law and the Skin Trade in the Windy City

The Law of Prostitution - Part Two

By J. D. Obenberger, Attorney at Law
© 1999 J. D. Obenberger, All Rights Reserved

When it comes to the law, there is a ton of misinformation floating around among the workers in the adult entertainment industry. Some people really believe that an undercover police officer has to tell the truth if directly asked whether he or she is a cop. Others believe that a police officer will never take off his or her clothes. Beyond that, the misadvice gets crazier and crazier.

One of the most dangerous rumors, in terms of getting a worker into hot water with the law, is that it is legal to “sell a massage and give away a sexual act.” A 1993 decision of The Illinois Appellate Court, Second District, suggests that this kind of business is highly risky and is very likely to lead to a prostitution conviction.

You will recall from the last article in this series that prostitution is committed when there is 1) an offer, agreement or act, 2) in consideration of a payment or promise to provide money or any thing of value, 3) for an act of “sexual penetration” or a manual sexual stimulation. Sexual promiscuity, even outrageously and astoundingly flagrant sex acts done with total abandon of selectivity and discretion, as long as they are done for free, are not prostitution under our present Criminal Code (though if done in public, they may amount to Public Indecency or Obscenity - - more about that in a later article.). Nor is every act that provides sexual excitement necessarily illegal, even when it is done for money. And, it is never prostitution when money is exchanged just to touch a woman’s breasts (although this does violate ordinances in some localities). Further, many fetish behaviors, as limitless in number as the human mind can imagine, even for hire, such as bondage and domination, can be performed in a legal manner without violation of the statute in question. (Speaking of fetishes, did you ever wonder what people with pantyhose and nylons fetishes did before pantyhose and nylons were invented? Or what guys with a lingerie fetish did before underwear was invented? Or what cross-dressers did when everybody wore animal hides?)

People v. DeBartolo, 242 Ill.App.3d 811, 610 N.E.2d 131 (2d D., 1993) is perhaps the best single reported case to explain the broad reach of the prostitution statute (Section 11-14 of the Criminal Code) to those who are trying to find an angle to evade it.

Aside from the very important legal precedents that this case establishes in Illinois Law, it is full of interesting detail. It involves an undercover female undercover vice officer seeking a massage and “release” from a male. The female officer testified at trial that she denied to the Defendant that she was with law enforcement and she testified that she had at least begun to disrobe at the time of arrest and the Defendant testified that she was down to her underwear. While she signaled for her backup on a remote device at that time and that she announced that she was an undercover officer, it was the Defendant who actually called the local police.

Despite brilliant and aggressive argument by Attorney Patrick A. Tuite, who represented the Defendant, the Appellate Court sustained the Defendant’s conviction.

(The Opinion written by the Appellate Court notes that the Defendant testified at trial and vigorously denied many or all of the most important allegations contained in the testimony of the arresting officer - - and he specifically denied agreeing to any sexual release and in fact testified that he refused her request - - but the Appellate Court found that it had no basis to substitute its judgment for that of the trial judge. Accordingly, all of the legal issues were decided by the Appellate Court with an assumption that it was the arresting officer who was correct. Like any other human institution, courts do make mistakes. The focus of this article is how the Appellate Court applied the law to the facts it believed to be true rather than what actually did or did not happen, and the reader should draw no more from this Article than that. The “facts” below are presented merely to illustrate the Appellate Court’s thinking in deciding the case.)

The undercover female officer responded by phone to an ad that offered massage to women for sore and tense areas. She left a message and received a return call from a male who quoted her a $50 price for an hour full body massage. She testified that she asked if “release” was to take place and claimed that he responded affirmatively but said he couldn’t discuss that over the phone. She booked an appointment for the same afternoon. On cross-examination she testified that when she asked about “release” on the phone, the Defendant just said that he couldn’t talk about that over the phone.

When she arrived, she was sent to the back area where she met the Defendant, whose voice she claimed to remember from the phone call. He showed her a hot tub area decorated with photos of people having sex. She was not interested in a bath, but related to the Defendant that she wanted a massage. She claimed that she was asked if she was with the police and whether she had a star. She showed him her “panic button” and she testified that he said it was a beeper, and that if she was with the police, he did not want to talk about sex with her. She admitted to the judge that she said that she was not with the police, that she wanted a massage, and testified that she told the Defendant that she wanted to be masturbated. The female undercover testified that the Defendant told her to get up on the table, that they would have fun, and that he could pay her $50 later. She pressed her “panic button” and arrested the Defendant.

On cross-examination, she told the court that after she secured the Defendant’s agreement to masturbate her, she asked about the price, and that Defendant said to her that the massage would cost her the same price, $50 and that she could pay later.

The Defense argued in a motion for a directed finding at the end of the State’s case, again on closing argument, and in the appeal, that there was no prostitution because the terms of the massage were agreed to before there was any discussion of sexual favors. The trial court analyzed the case under normal contract law and did not believe that there was an agreement to a massage for a price and then, only later after agreement for a massage, an offer or agreement for a free sexual act. The trial judge believed that, from the evidence of the phone conversation and the personal discussion, no agreement for a massage had been reached until there was an agreement for “release”.

The Appellate Court said the issue was whether the trial court could find beyond a reasonable doubt that the Defendant agreed to perform a sexual act for money.

The Defense pointed the Appellate Court to a 1983 decision of the Texas Court of Criminal Appeals, Roper v. State, 652 S.W.2d 398 (Tex.Crim.App., 1983), a massage parlor case, in which a conviction was reversed because the court found no evidence of agreement for a sexual act, although one did begin during the massage. The State countered with another case from the same Texas Court, Austin v. State, 794 S.W.2d 408 (Tex.Crim.App., 1996), where a conviction on similar facts was upheld. The State also cited an Illinois municipal license revocation case, S & F Corp. v. Bilandic, 62 Ill.App.3d 193, 19 Ill.Dec. 262, 378 N.E.2d 1137 (1st D., 1978) in which the court found the $144.90 price for bottles of non-alcoholic cherry beverage to be a subterfuge for acts of illegal sex.

In upholding the Defendant’s conviction, the Appellate Court held that, under the totality of the circumstances, the trial court reasonably inferred that masturbation was included in the $50 price. The court held that the prostitution statute may be applied to conduct that is to some degree ambiguous. It said that “[B]y his words and conduct in the context of the surrounding circumstances, the defendant implicitly assented to a sexual act for a sum of money.” 182 Ill.Dec. at 714. The court noted two competing principles. The first is that “to prevent circumvention of the statute, the offer or agreement need not be express . . . but may be implied from the words and actions of the defendant taken in context.” Id. The second is that there is a danger that an innocent or ambiguous offer may be taken as illegal. The court held that though the Defendant’s approach was discreet or tacit, this was not a situation where sex was to be provided for free after the performance of a legitimate service.

The essence of this case is that if there is an agreement to perform a sexual act for money, it cannot be disguised by making a legal service a part of the deal. If the customer is led to know or believe that sexual penetration or manual stimulation will be part of the package offered for money, it is punishable under the prostitution statute. Even words may not be necessary to establish an illegal agreement, because conduct, in its context, may be enough to establish that a tacit agreement actually was reached.

Anyone involved in the adult entertainment business should know that a wink and a nod will not avoid a prosecution for prostitution. There are an endless number of ways in which persons in this industry can do business without violating any laws, and there never is a good reason to violate the criminal laws.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com