The Law of Prostitution
A Primer on the Law of Prostitution in Illinois
By J. D. Obenberger, Attorney at Law
I. The Historical Background to the Illinois Prostitution Statute
When did prostitution become illegal in Illinois? That is not as easy a question to answer as you might think. When Illinois first became a State, one of the first acts of the first State Legislature was to adopt most of the Common Law of England. The Common Law Reception Statute is still found in the Illinois Compiled Statutes at Chapter 5, Section 50/1. “The Common Law” is the body of written decisions by judges which explained the law, rather than statutes passed by Parliament, Congress, or legislatures. (The word “Common” in Common Law meant that the rules of law applied in common to all of the lands in the King’s realm.) That's how we adopted the law of England here.
That seven-hundred-year old tradition of Common Law has become the backbone of the law all through the English-speaking world from Canada to New Zealand, and is the foundation of the law in every American State except Louisiana (which because of the influence of its early Creole settlers, derives the inspiration for its law from the Code Napoleon of France.).
Under Common Law, Prostitution, as such, just wasn’t against the criminal law.
The Common Law did have a few things to say about prostitution, but mainly this was about what the law then viewed as the “nuisance” of public solicitation for prostitution and what it perceived as organized exploitation of women in brothels. The discrete and private making of arrangements for private meretricious acts, outside a brothel, was just not illegal. If the deal had been made out of the public way, and the act took place out of public view, and if it wasn’t a part of a fixed house of business, Illinois State criminal law - and the law in the large majority of American jurisdictions - took the position that it was nobody’s business. Police had better things to do and other and bigger fish to fry. Certainly it wasn’t a crime. Various municipalities, including Chicago, enacted ordinances aimed at prostitution, but these local ordinances were directed at brothels and streetwalking rather than prostitution itself. These original ordinances remain on the books and are still used today; their odd, old-fashioned language gives evidence of their age and why they were enacted in an era when the underlying transaction, itself, was a lawful enterprise. Much has been written about the "Levee District" in Chicago to the exclusion of its other traditional vice districts including South State Street and Wells Street. At one point in time, not far from the bar in which a plan to steal Abraham Lincoln's body was hatched, Wells Street had "cribs", little compartments smaller than rooms, in which prostitution took place immediately adjacent to the sidwalk. Wells Street was so infamous a location for legal but obnoxious vice that the City Council changed its name several times in an unsuccessful attempt to better its reputation; it was "Fifth Avenue" for awhile. All that remains of that legacy today is Wells Street Books.
Many Leftists take shots at the Nineteenth Century for many reasons, but it was an era of restraint, an era when it was largely believed that personal and private morality were not matters for the government, and so except for public solicitation and exploitation in brothels, the American jurisdictions largely left the issue of who had sex with whom for money alone as a private matter. Also, both municipal governments and adjacent property owners could sue to abate the "nuisance" of brothels. This doctrine made a come-back in recent decades, after prostitution became a crime - but before handjobs became part of the Illinois statute. In City of Chicago v. Cecola, 75 Ill.2d 423, 389 N.E.2d 526, 27 Ill.Dec. 462 (1979), the City of Chicago successfully closed down the Harem Leisure Spa on North LaSalle because those happy endings were on the menu at a time when it simply wasn't a crime. The Illinois Supreme Court concluded that handjobs must have been on the menu in brothels (no evidence was ever actually presented anywhere in the record of this case, this was just the supposition of the Justices), and therefore this was a brothel - even though the prostitution statute then in force was not being violated. The "nuisance" would be abated. I have a relic of that establishment on my wall, a gift to me some twenty years later, said to be the last remaining advertising sign for the Harem Leisure Spa; these signs were plastered all over the Gold Coast and Rush Street when I first came to this City to start law school in 1976. An earlier case along the same line from the Illinois Appellate Court, invovling the Gaisha House is City of Chicago v. Geraci, 30 Ill.App.3d 699, 332 N.E.2d 487, 80 A.L.R.3d 1013 (1st D., 1975). As a consequence of these cases, the Illinois statute was amended to include in its criminal proscription the touching or fondling of sex organs for the purpose of arousal or gratification. When I die, that sign goes to the Chicago Historical Society.
An interesting overview of life in Chicago's best known Redlight District at the turn of the Twentieth Century, focusing on the Everleigh Sisters is found here. (Two small comments. First, "prostitution" as we understand it was not technically illegal in Illinois during the time mentioned; prostitution itself was legal, as it traditionally has been in English speaking countries and remains legal in England, Canada, Australia, New Zealand, etc.; what was illegal here and remains illegal throughout the English speaking world was organization into brothels and public solicitation. Second, the notion that prostitution should be tolerated because it is a lesser evil to seduction or the forcing of men upon reluctant, virtuous women, is much older than Chicago in the Nineteenth Century, and it is hardly dead. More about that, and St. Thomas Aquinas's teaching in almost the same words below.)
One of the earliest Illinois cases about prostiitution is the aptly-named Bunfill v. Illinois, 154 Ill. 640, 39 N.E. 565 (1895) which cites then-recent legislation that made it a serious crime to compel prostitution, what we would call one of the aspects of pandering today. The court traces the history of Illinois legislation about prostitution and shows that it was clearly aimed at what was then called White Slavery:
Id. N.E. at 646.
The facts set out by the court in Bunfill are disgusting enough (though the conviction was reversed and the case was remanded for a new trial), but the entire facts seem to have been even more putrid. This is what our Supreme Court had to say about the totality of the cirucmstances related in the record:
Then came the Twentieth Century. The legal history of the Twentieth Century is formed of one experiment after another designed to reform men and women into someone's notion of nearly perfect angels. Communism, Fascism, National Socialism and Eugenics are the best known examples interntionally, all of them starting from someone's sincere but badly misguided idealism. The ill-conceived (but well-intentioned) experiment with Prohibition is the best-known example here, it was a failure, and the government retreated in most places. It caused the massive growth of organized crime and did little to change what people actually did. It did far worse harm to personal privacy; the cases first opening the door to search warrants for the tapping of telephones and many other strange doctrines that invade what Americans had always taken to be their fundamental rights of privacy were ushered in during this era, the argument being that since all the criminals were willing participants who would not complain, the government needed special tools to detect crime. This is how "confidential informants" started in a big way in our law along with the courts' approval of deception and lies by sworn officers designed to secure evidence for the enforcement of the vice laws. Little of that existed on these shores till the Do-Gooders enacted the vice laws. In Europe, for the most part, these tactics are simply forbidden because the government should be an example of honesty, not the exploiter of dishonestly. The experiments with the prohibition of drugs then got their foot in the door, and our personal liberties have eroded along with each skirmish in the War on Drugs.
And in the early parts of Illinois legal history, it was not so much the financial consideration involved in prostitution that defined "prostitution"; prostitution tracked dictionary definitions and was what the Illinois Supreme Court called, in 1917, “. . . [T]he act or practice of prostituting or offering the body to an indiscriminate intercourse with men.” People v. Rice, 227 Ill. 521, 115 N.E. 631. Prostitution iteself was no crime, but it was immoral in the estimation of the courts. Thus, issues of morality, the idea of reforming men and women into angels, then began to creep into Illinois law. It wasn’t the money: It was what the Victorian mind viewed as “slutty” behavior that was at the heart of the vice of prostitution, and what it sought to suppress. No one thought that possible until the Progressives started messing with liquor and drugs, having made the assumpiton that individuals were incompetent to manage their lives with good judgment, and so the law began to intervene to make the decisions for folks.
The modern era in Illinois prostitution law began with the adoption by Illinois of the Model Penal Code in 1961. Chapter 720, Section 5/11-14 of the Illinois Compiled Statutes is the modern statute against prostitution. It has been amended more than seven times since it was first adopted, and each of these has generally expanded the scope of what the law prohibits. Section 11-14 is one of the more serious Class A Misdemeanors, because, after a person has once been convicted of the offense, it may be charged as a Class 4 Felony; Only a comparatively few Class A misdemeanors can be escalated into felonies by repeated violation.
The Illinois experiment in criminalizing prostitution does not seem to have succeeded in stopping it here, and more recently, there have been changes, discussed below, at trying to stop it by enacting harsher penalties for customers than for prostitutes, a bit like hitting the purchasers of drugs harder than drug dealers. Honest, I'm not making this up. More about that below.
A controversial glimpse at street level prostitution in Chicago is found here online. Written by University of Chicago scholars, Steven D. Levitt and Alladi Venkatesh, the preliminary piece assesses the economics of street prostitution in Chicago. The work seems to have been modified and was later published in Freakonomics. Comprehensive Information (and opinions) made available by the City of Chicago is available here and here.
Prostitution itself has been illegal in Illinois since 1961. But to this day, the Common Law wisdom that keeps prostitution itself legal endures in Canada, England, Australia, and New Zealand; in keeping with the tradition of the English speaking peoples of the world, street solicitation, organization into brothels, and the financial exploitation of women by others remain as illegal as they have always been in those places, but the classified sections of Canadian newspapers will generally contain discrete text ads for entirely lawful intimate services.
II. 2000 Changes in Illinois Law Concerning The penalty for Prostitution and related offenses, factors that enhance the sentence, and Vehicle Impoundment
When charged as a misdemeanor, prostitution is punishable by zero to 364 days confinement in the County Jail, a fine from zero to $2,500, and up to two years probation. If charged as a felony, it may be punished by one to three years confinement in the Illinois Department of Corrections, a fine from zero to $25,000, and a term of probation from zero to thirty months.
Public Acts 91-274 and 91-498, which became effective January 1, 2000, are important for three changes they brought to Illinois laws regarding prostitution.
First, prostitution and the offenses closely related to it - - which had been Class A Misdemeanors on the first and second conviction, and Class 4 Felonies on the third and subsequent conviction, if that’s how the State decided to charge it - - could now be charged as Class 4 Felonies on the second conviction. That’s the difference between going to jail for up to one year, and being sent to the Illinois Department of Correction for one to three years. That’s also the difference between a maximum fine of $2,500 and one of $25,000. A felony conviction is serious business. This change in the law relates to prostitution, patronizing a prostitute, pimping, and soliciting for a prostitute, and the language escalating the seriousness of the crimes, said that any combinations of convictions for any of them can raise the second conviction to a felony.
Second, any of these prostitution offenses that take place within 1,000 feet of “real property comprising a school” will now be a Class 4 Felony. Not within 1,000 feet of a school: Within 1,000 feet of the lot line. And not within 1,000 feet of the lot line for just elementary and high schools: Nothing in the Statute limits it or prevents it from applying to bartending schools, beauty colleges, or a martial arts academy. (You will remember that one of the factors that the City of Chicago used in its litigation that ultimately closed Top Shelf, a strip joint on Orleans Street, was that it was within 500 of feet of a building that contained an obscure, mail order correspondence school on one of the upper floors of the building.)
Yes, this law applies 1,000 feet from the lot line of every school in the State, not just schools with little kids. And not just for contacts in public places. This law applies in condos, lofts, mansions, offices, apartments, hotels and motels, and many other places that don’t have any direct proximity to schools, whether in a basement or on the eightieth floor of a building in the Loop. (There are eight blocks to the mile in Chicago, making each regular block about 660 feet in length.)
Third, the statute authorized local police to impound for a minimum of two hours any car used in soliciting for a prostitute, and then to permit the driver to reclaim it by paying $200, which includes any towing fee. The act provides that the $200 shall be distributed to the unit of government whose officers made the arrest. The statute authorizes the return of the $200 if the defendant is found not guilty or the charges are dismissed. (This is actually better than the City of Chicago policy on impoundments in these kinds of cases, in which the arrestee doesn’t get his car back for less than $500, if he has any hope of recovering that money, he has to first attend and participate in an administrative hearing at the police department concerning the forfeiture, and then file a lawsuit under the Administrative Review Act to get anything back. In practice, few if any people in Chicago attempt this because the litigation costs of recovering the money exceed the forfeiture amount by a big margin.) This provision was enacted mainly for smaller cities, including non-home rule cities and villages, that don’t already have their own automobile forfeiture laws.
III. Supervision as a criminal disposition in Illinois
It is typical in Chicago for a first offender (at least those few who are not offered diversion into an educational program) to be offered a term of supervision for a plea of guilty to prostitution. Supervision results in a finding of guilty by the court, without the entry of judgment. If the term of supervision is successfully completed, the charge is then dismissed. Two years after the supervision is successfully completed, and if and only if the defendant has no convictions for any offense (including municipal ordinance violations but excluding minor traffic offenses and a special first-offender drug probation disposition), the defendant may petition the presiding judge of the Criminal Division for an expungement of the arrest and prosecution records, a process that takes about six to nine months, with filing fees and certified record costs approaching something like $130, and if granted, results in the destruction of police photos and fingerprint cards, the destruction of the records with the Illinois Department of State Police, the sealing of the court file and its deletion from the index of cases available to the general public. (Expungement will not result in a deletion of references to the case on microfiche backups made off the computer system in the clerk’s office while the case was pending nor cause any change to the original court sheets filled out by the court at the time of disposition, and which are retained by court and date rather than by the names of the defendants: A particularly aggressive researcher who knows what he is going after can still find the record with hard work.)
If the offender has other convictions, the record of supervision can never be expunged. If the offender gets in trouble with the law during the term of supervision, the State may file a Petition to revoke the supervision, and on proof of the new offense by preponderance of the evidence (not beyond reasonable doubt), transform the old supervision finding of guilty into a judgment of conviction, and resentence the defendant on the original charge. In fact, I've seen the system make errors that have cost defendants who received supervision dearly; in one case, though the judge ordered that the defendant did not need to return to court on the supervision termination date, the records turned out differently, probably a clerk's mistake, and when she did not return one year later, on the State's motion, the supervision was turned into a conviction; this only emerged long afterwards, when that defendant unsuccessfully attempted an expungement on her own. It was necessary to get the court's order entering the conviction vacated, and that became impossible for one year because the original court reporter's notes were inaccessible after the fire at 111 West Washington Street. Ultimately, we got them, had the original proceedings typed up, had the judge vacate the conviction, and ultimately, expungement was granted. It was expensive, but all necessary because the defendant was applying for state regulated professional licensure.
If the defendant is arrested again for a prostitution-related offense while on supervision, the situation could get seriously worse very quickly. Nothing in the law would prevent the prosecutor from upgrading the second charge to a felony once he has secured an order vacating the first supervision, entering a conviction, and imposing sentence.
A disposition of supervision is not a conviction in the technical sense of Illinois law. However, on a practical level, police officers look at prior supervisions in deciding whether to proceed with an arrest and formal charges on borderline cases and prosecutors and judges frequently treat them as equivalent to conviction when they look at them in the context of setting bail on new cases and imposing sentences for subsequent offenses. The supervision is fully reported on both court and law enforcement data bases, including City of Chicago Police department rap sheets.
Once a person has entered a plea of guilty to a prostitution-related offense, she can expect the entire criminal justice system, from the arresting officer to a public defender to the State’s Attorney to the sentencing judge to treat her differently in the future than a first offender. It is therefore a very serious decision to take an offer of supervision in exchange for a plea of guilty to any of these offenses, and it should not be make without consultation with a lawyer experienced in the area. It is seldom much of a bargain for a first offender to trade away any serious chance of acquittal in exchange for a plea of guilty to prostitution and a term of supervision. That plea of guilty can make a lot of difference down the road causing unpredictable consequences later in life.
IV. The elements of Prostitution in Illinois
The prostitution statutes of Illinois may be found at 720 ILCS 5/11-14 and the following statutes. There are three essential elements to the offense of prostitution in Illinois:
Second, it must be for an “act of sexual penetration” as defined in the part of the Criminal Code that defines criminal sexual assault or any touching or fondling of the sex organ of one person by another person for the purpose of sexual arousal or gratification.
Third, it must be for money or any thing of value, with one who is not a spouse. (Thus, a spouse can demand money for sex without fear of a criminal sanction!)
The “act of sexual penetration” definition covers all of the kinds of sexual conduct that most people could imagine, and then some. In order to do justice to the incredibly inclusive language of the statute, let me quote the definition verbatim: “ ’Sexual Penetration’ means any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth, or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio, or anal penetration.” I can only imagine how many lawyers spent how many hours in how many conferences and in mulling these words over before this language became law.
Vaginal intercourse isn’t any less intercourse because the male wears a condom, and it's plainly the same result with respect to oral and anal sex. Even should a sex worker wears gloves, it would seem reasonable that a "fondling" nevertheless would take place within the meaning of the statute. (Does this ever happen? At least outside that scene in "Animal House" with Mandy in the sports car?) But the contact that takes place in the kind of crotch dancing that some clubs have called “contact lap dances” or the kind of bumps and grinds that have taken place at the "Fashion Show Bars" is arguably a horse of a different color when done for money. Cook County Vice and at least one suburban police department arrested dancers in several clubs for this kind of contact dancing during the Nineties and charged the dancers with prostitution. Word from the grapevine is that the criminal charges were dropped in discussions with prosecutors on an agreement for some “voluntary” community service in the early cases, and a warning that future charges at the same establishments would not be dropped. It had been suggested that the trial judges in the Maywood Court House did not look favorably on these prosecutions because they seemed to be outside of the letter and spirit of the prostitution statute. That is the gentle way of reporting that the judges were said to laugh at the prosecutions. When I first wrote this Primer in 2000, there were no Illinois Appellate Court decisions on whether this kind of contact amounted to "touching" in violation of the prostitution statute. But since that time, a decision has emerged from the Second District in Elgin, superintending appeals from DuPage, McHenry, and Lake Counties. It involved Baby Dolls, a now-shuttered "B Joint" that formerly operated near the Wisconsin state line on US 41 at Wadsworth Road. An undercover Lake County deputy sheriff, posing as a customer and wearing a sailor suit (Naval Station Great Lakes is not far away), received a "fantasy dance" and "sensuous massage" from an entertainer there; the trial judge concluded that the state had proven the allegations of the complaint that the entertainer had touched his penis, through his pants, with her buttocks and hand for the purpose of sexual arousal or gratification. The Opinion of the Appellate Court says that Miss Paris was charged with "touching" rather than "fondling". People v. Hill, 333 Ill.App.3d 783, 776 N.E.2d 828, 267 Ill.Dec. 456 (2d.D., 2002). One of the important issues was whether there was a "touching" when parts of Ms. Paris's (at-least-scantilly-clad) body and hand came up against the fully clothed generative organs of the Deputy. The whole point of wearing asbestos gloves in the kitchen is precisely to avoid "touching" the hot rack of the oven; we insulate electrical wires so that the conductor does not "touch" another conducting wire, and even if the insulated cables are wrapped about each other intimately within conduit, the wires are never said to "touch"; though the court said it was applying the natural and well-understood meaning of "touch", it looks to me as though they did the opposite and applied a tortured meaning to affirm the conviciton. Unlike the condom metaphor above, this is not intercourse or the other categories of prohibited conduct expressly laid out in the statute and established or defined by simple topology; as those of us who built model airplanes and ships as children remember, there is no ambiguity about what it means to "insert Tab A into Slot B". I agree that oral, anal, or vaginal intercourse are accomplished for the purposes of the Illinois statute regardless of the presence of a condom, and that "fondling" can take place regardless of the use of a glove, mitten or even a catcher's glove. But "touching" should mean "touching". It does not mean that, at least not in the Second District, and at least not on this issue. And, especially in light of the traditional maxim in our law that criminal statutes must be strictly construed against the State, I that think the wrong result was reached.
Some good basic advice is, don’t plead guilty to any prostitution or indecency-related offense (including street solicitation of a decoy) until you have spoken to a lawyer who knows this area of the law, and until he or she has obtained discovery, i.e. police reports, and has explained the case to your satisfaction - - - especially first time offenders. There are defenses, and people who plead “not guilty” are often acquitted in Chicago-area courts. The law presumes every defendant to be not guilty, and no criminal lawyer worth his salt will plead his client guilty unless and until he has investigated into the allegation, and unless and until he finds that it makes more sense for his client to plead guilty. This is not usually a highly technical decision: Your lawyer should be able to explain the law to you, and in a way that makes common sense, why he thinks it likely that your chances in a trial are not good. You should never plead guilty just because you feel guilty.
V. Attempts to evade the Statute by combining it with a legal service
When it comes to the law, there is a ton of misinformation floating around among the workers in the sex trade. 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 or deputy will never take off his or her clothes. (Yeah, I've used videotape evidence at trial proving to the contrary!) Yet others say that if you don’t take money with your hands, you can’t be found guilty of prostitution. Beyond that, that crazy misadvice gets crazier and crazier.
One of the most dangerous Urban Legends About the Law of Prostitution, 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 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). 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) and it is especially sobering reading to dishearten those who are trying to find an angle to evade the law.
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. (Pat Tuite told me some additional facts that didn't make it into the record; apparently, when the undercover Deputy signalled for her backup, they were in a car on the other side of the train tracks that bisect Bensonville and a long freight train was coming through at that moment; for some time, he told me, the undercover female Deputy, in her underwear, was chasing Mr. DeBartolo around the desk with the cash register.)
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 sex trade should know that a wink and a nod will not avoid a prosecution for prostitution.
However, I have also seen a selected phrase from the concluding paragraphs of this Opinion misused by collar county judges to convict when abundant ambiguity existed and an acquittal should have resulted. No defendant ought to be or can legitimately be convicted when the terms of the alleged illegal transaction have not been proven beyond reasonable doubt. In the absence of an express verbal agreement, the circumstances can be used to convict only when they unambiguously paint the terms of an illegal transaction beyond reasonable doubt; and if it is unclear that any illegal act described in the statute has been bargained for and agreed to in exchange for the promise of payment, the crime has not been made out. Hints and implications of sexuality do not amount to an agreement for intercourse or any other act essential to a conviction. The law requires not only that a particular kind of act be alleged in the charging instrument, but that, in fact, an agreement to perform or participate in it it must be proven by legal and competent evidence beyond a reasonable doubt. But tell that to the judges in the collar counties.
VI. Massive Changes to Illinois Prostitution Laws (effective August 30, 2010), and a Smaller Change the Following Year.
By coupling a radical change in the prostitution laws with some compassionate changes in laws for child welfare, some very radical ideas, proposed by some very radical folks, got implanted into Illinois law through Public Act 096-1464, effective August 30, 2010. There would be not much controversy about its determination that persons under the age of 18 should not be criminally charged. Minors are immune. Thus, so far as I know, this is the only crime where a 17 year old is not criminally responsible for his or her conduct as an adult.
Here's what the law does:
1. Solicitation of a sexual act - that is negotiating for someone to perform an act of prostitution at one's behest, which was a Class B misdemeanor (six month's jail) is now a Class A misdemeanor (364 days in jail maximum). That's what the targets of the undercover street decoys now face. Solicitation of a minor or a mentally disabled person is now punishable as a Class 4 Felony, 1 to 3 years in prison. Not very radical, but not based on any evidence that the increase in sentence is actually needed. It's there because of an "End Demand" philosophy pushed by radicals that prostitution is inherently oppression and exploitation of prostitutes (tell that to the high-end ladies advertising at $750/hr. - and to their customers.) We see how well the End Demand philosophy has done in eradicating the commerce in drugs, right? Lots of ruined lives and no diminution in the drug trade.
2. Provisions dealing with felony prostitution were modified to eliminate the special handling of minors, who are now immune from prosecution. The statute erects an elaborate scheme of closely supervised probation to zealously reform the hearts and minds of the persons charged as prostitutes, and allows for the sentencing of such persons to probation without a conviction, which can all be expunged five years down the road. Those who ran political re-education in Vietnam after the fall of Saigon could take a lesson from what Illinois is doing here.
3. Soliciting for a prostitute, what pimps do, has always been treated as a misdemeanor to this point. Now it's a Class 4 Felony which can lead to prison. Within 1,000 feet of a school, it's a Class 3 Felony. Soliciting for a minor engaged in prostitution is now a Class 1 Felony, which can be upgraded to a Class X Felony if the offender has prior conviction under any of the prostitution-related offenses, including solicitation or patronizing, not necessarily having committed this crime before. Within 1,000 feet of a school, it's always a Class X Felony. Keeping a place of Juvenile Prostitution is now a Class X Felony. Pimping itself is now a Class 4 Felony.
4. Keeping a house of prostitution, a misdemeanor to this point, is now a Class 4 Felony. With prior convictions of any prostitution-related offenses, it's a Class 3 Felony. Within 1,000 feet of a school - think about an expensive condo used for prostitution at the Hancock, a stone's throw away from the Northwestern University campus - it's always a Class 3 Felony. The cookie cutter solution will always lead to absurd results, but this is democracy in action, with a sprinkling of radical back room lobbying.
5. Here's the kicker. Patronizing a prostitute, a matter not illegal in this state until 1961, and always treated as a misdemeanor till now, is a now a Class 4 Felony on the first offense, the kind of thing that will lead to the loss of a professional license and the destruction of a career, and a Class 3 Felony on the second conviction for any prostitution-related offense. The person on the other end of the transaction, if a first offender, will be diverted to a class. If this prostitute has already had the benefit, and actually must go to trial, the likely outcome is supervision. If the prostitute is up for the third charge, she may actually get a conviction. Perhaps, but not necessarily, the prostitute will be charged with a felony of the fourth arrest, but will have the option of the special probation program, and ultimate dismissal every five years. Maybe, just maybe, the prostitute might be looking at what the customer is looking at - on her FIFTH arrest. But it's all over for the customer the first time at bat. That's because the radicals believe that every time that sex takes place and a penis is involved, there is a victim, and that the victim is a female. Even when the female charges money. Even when the female charges many hundreds of dollars, even when prostitution is her fundamental lifestyle, even when she advertises and travels from city to city, she is always a "victim" to be helped, at least helped by coercive re-education from her wayward ways, akin to the way the Soviets and the North Vietnamese and Cuban thought police dealt with antisoviet and anti-socialist thinking. At 26th Street, a court with this agenda now sits. The government always thinks it "knows better" in any state sufficiently distant and degenerated from its original notions of Liberty. But the male/the customer, regardless of what brings him to prostitute, regardless if it is the first time he's ever used an escort, regardless of the circumstances, regardless of what he pays her, is ever the tyrannizing oppressor/exploiter, taking unfair advantage and repressing her. The thinking here is essentially Marxist, wrapped up in issues of class strife, conflict, and dialectic while ignoring individual justice under particular facts. It's arbtirary and frequently just plan wrong factually. So much for what is carved over the portal of the Supreme Court, "Equal Justice Under the Law". All of this lies light-years away from the American political, social, and legal tradition of equal treatment and fairness. Its only foundation is politically-correct myth when some of those "victims" drive Porsches.
I've not seen these provisions prosecuted, but it would be my special privilege to defend a customer charged under this obviously unjust law. As noted above, this is precisely like diverting drug dealers into an eight hour class and sending their customers to prison. Who is exploiting whom?
6. Here's another kicker. For a long time, the police have towed and impounded cars used in relation to prostitution. The fee just went up. $1,000.00. Half of that goes to the local government - a great incentive for cash-strapped communities to put female decoys on the street to entice and entrap lonely men - and half goes to the Department of Human Services to make grants to nongovernmental bodies that "provide services" for "prostituted persons" or "other victims of human trafficking". In other words, the incestuous little cabal that got this bill written and lobbied through Springfield gets itself paid back for its salaries for the purposes of lobbying for more laws which insult men - such as the recently proposed $5 head tax on the patrons of gentlemen's clubs that serve liquor. That money too, if the bill is passed, will send money back to the radicals who dreamt this up, and who view all men as the oppressors and assailants of women, and who will concoct further legislation to effect cultural modification and political re-education. The very notion that prostitutes are all victims, that men are all victimizers, and that the customers of gentemens' clubs should pay for the victims of sexual assaults should offend every male in this state and those women who are - the mothers of sons - or the wives of husbands - or the sisters of brothers. None of this comes from reality, but from strange and twisted notions that defy the reality of human sexuality. All of this runs contrary too, to the notions that women should be able to make important, fundamental decisions about their own bodies. These laws suppose that they are incompetent to do so, and that when they do so, it is because men force them into victimization. If there is no pimp, then it simply must be their customers who are to blame, for the prostitutes are not responsible for their conduct. They are misguided and must be corrected by the gentle and kind hands of these nongovernmental entities getting the state funding from the impoundment of cars. In the mad dash for cash in these troubled economic times (along with Red Light Cameras and now School and Park Zone Speed Cameras that will make 50% of Chicago one big speed trap that enforces at 5 MPH over the limit), no one seems troubled by the fact that the trolling of undercover female decoys exploits natural human weakness and creates crimes that otherwise would never exist. No one considers the marriages and lives that will be ruined, the families broken up, and the employments that will be severed, not because these men are any manner of antisocials or criminals, but because the government tempted them and they were too weak to keep driving. For the purpose of monetary gain, the government and these radical agenda groups exploit what they know to be one of the strongest instincts in our nature and they profit from it. Can it be said that they exploit human frailty any less than a pimp? Or that they profit any less from exploitation of the sex drive any less than a pimp? The savvy Mongers never get caught. Look at the sad pictures online. It's the average lonely, frisky guy who gets caught in the elaborate trap laid out for him and often the money he doesn't have - baited with cheese that's too good to be true. Shame, shame on those who cynically engineered all of this and the ruinaiton of lives for $500 per pop. If there is a God, he will surely deal with these malefactors harshly in the World to Come. Does anyone even consider the price of misery and the economic social costs that will dwarf the $500 recovred, one sad sap at a time, as families go over the edge after such an arrest? No, don't pin the blame on these men as the sanctimonious defenders of these traps will do; it's government that engineers these "crimes", and if their flypaper doesn't ensnare enough men, those who are sworn to uphold not only the law but the constitution will alter their strategies until enough crimes are created to pay their keep and bring home the bacon to City Hall. All the malice aforethought, all of the architecture of crime, comes from those engineers, and none comes at all from from the hapless man who stops in that weak moment.
Finally, Illinois, it seems, has quietly, but essentially decriminalized prostitution in 2011 (for the prostitute) - at least in cases in which a prostitute can point to someone's opinion that she has been victimized or exploited by someone, even financially, as in paying a commission to an escort service. Establishing exploitation of some kind covered by the statute is less than a Herculean Task in most situations. Even after conviction, even many years after conviction, if there is any good excuse for the delay, such as that no one informed her that she was being exploited under the law, she may have her conviction vacated. This is a powerful tool for those who defend these cases. But, of course, it's one sided. The customer may languish in prison or have his professional life destroyed around him, while the only person who profited from the transaction or at least who chiefly profited from it - the prostitute - will be able to shed herself of her criminal record. The law views the man who paid her as the only real criminal, and the woman who took the money, as the de jure victim, even if it was her profession and livliehood for many years, marketed via advertising and other promotion, and even if the customer was doing this deed for the first time in his life. That "logic" is the vehicle impoundment fee at work! This is the product of lobbyists working the radical agenda and being paid for it from towed vehicle revenue. The presesnt state of affairs is a melange curiously mixing some very old notions from the era of White Slavery hysteria with notions derived from dialectic materialsim and radical feminism.
It seems unaccountable to me hown these interconnected and networked radicals have gained respectability from elected officials and ascendency in the back rooms where deals and decisions are made. At some level, there is probably a common desire to suppress vice. But why do those officials turn a blind eye to the shameless profiteering of these nameless radicals, interconnected as they are on each other's steering committees? It probably has something to do with their promises to bring some money from the skin trade to Springfield and the City-County Building. But call me a cynic.
All of this has been enacted in the shadows. Not one newspaper in Illinois reported on any of these legislative developments. It's been a year and a half, and there seems to be a media blackout on this agenda. It's my belief that, were the people to know what this legislature has created, it would be stirred to anger and indignation. The people of this state are not radicals; the people of Illinois are a fair, reasonable, and open minded people who recognize simple injustice when they see it. Show the people some light, and they will find their own way. But someone needs to turn on the switch, and the Illinois media is asleep at this particular switch.
Until then, I'm ready to defend truth, justice, fairness, equal treatment and the American Way one case at a time. When I defend the women, on some level, I am fighting for their rights to make their own moral decisions, to control their own bodies, and to prevent the state from telling them how they may permissibly use their bodies.
I do really hope I get to defend one of these men, one of them who is unwilling to go down without a fight - based on some fundamental American principles. The problem is that most of them are so shamed by the publicity, so devastated by the reaction of family and significant other, so overcome with grief at the prospect of losing job, children, and all that is important to them, that defending themselves is actually the last thing on their minds. Shufling away from the spotlight and returning to obscurity becomes their dearest and most seemingly impossible fantasy. And many of them are just working guys who can't afford any kind of lawyer. But surely, a few should come forward to defend they abysmally unfair way this system treats them, grinds them up, and destroys them, while essentially giving a pass to professional prostitutes. I think it is they who are fundamentally victms here, victims of some truly radical, doctrinaire thinking that is out of touch with who we are as a people.
What's good for the goose should be good for the gander. Under the Illinois law, it has not been that way since 2010.
The present assault on the customers, typically men, closely resembles the concept of imprisoning the purchasers of drugs while treating dealers with extreme leniency. It amounts to a frankly a sexist assault on males which has successfully been marketed to the politicians by those with radical feminist ideas and which puts money in their pockets. That money that typically comes from the pockets of men belonging to the economic underclass, themselves struggling in many cases to support families. Do take a good and hard look at the mug shot photos of the men arrested in the sting decoy operations by the Chicago Police Department. When you consider the $1,000 automobile impoundment fee, think for just a moment about exactly whose belt is going to be tightened and who will go without as a result. Reflect about whether any street prostitutes arrested the same night will be kicking $1,000 in to the system to pay for the abatement of social problems that cause prostitution.
In the end, this debate should not about who victimizes whom. There is not always a victim and there is not always an opressor. In a world where cash-and-dash is not uncommon, a world in which street prostitutes regularly carry weapons and attack their potential customers and sometimes steal wallets and try to steal cars, in which escorts seek and obtain many hundreds and thousands of dollars for their services, any generalization of victimization is likely to be a fiction in the abstract and a downright lie in particular circumstances. Cookie cutter approximations usually work injustice in the real world, and in the criminal law, such solutions can and do destroy lives without much purpose.
Reliable information about who hurts whom is hard to get when the underlying transaction is against the law, when both parties have a good reason not to involve the police, and so the debate is fueled by anecdotes. Those anecdotes are hard to challenge when telling the truth can get someone in trouble, and that's a real dilemma for those lawyers who want to challenge the constitutional validity of this law in court. Arrested prostitutes always have a motive, especially when invited by police and enticed by ICE with an offer of a Green Card, to point fingers at others, to claim they were lied to and misled with promises of high-paying nanny jobs, exploited, and traficked. Fed only rice out of the twenty pound sacks upon which they slept in the back room. That there is some advantage to be gained by claiming victimization is probably obvious to any woman charged with prostitution in Illinois at present. If you were arrested for prostitution and are given a choice between saying that, with few other marketable skills, you had knowingly and freely enslutted yourself for hard, cold cash in the land of opportunity, far away from family or friends, or the choice of protesting that you were forced and victimized by heartless exploiters who enticed you with false promises of virtuous employment with good pay, what would you say? There once was a time in the law of evidence that the testimony of a prostitutes, drug addicts, and alcoholics was deemed inherently unreliable; when I tried cases in courts-martial, any opposing party was entitled to a special cautionary jury instruction to assess the testimony of a prostitute as particularly suspect. The theory was that the entire occupation was built on feigning false affections and attractions, a life built on dishonestly. In Illinois, I have at least once seen a judge scold a police officer for his hearsay testimony about what a prostitute told him because it is inherently unreliable. When it comes to the present polticially-correct issue, those doctrines of law seem to be a dead letter. Law enforcement nowadays seems to have no incentive to challenge and seriously investigate these easy-to-make allegations nor much incentive to produce evidence to the contrary; they are exactly what the people upstairs want to hear these days; it makes for good propaganda on TV, too, on programs that bill themselves as documentaries, though only one voice is heard; these self-serving assertions, true, false, or indifferent, are far more in keeping with the politically-correct agenda du jour. The vice detectives know what is really going on. Whether it is safe for them to tell that truth - even to their superiors - is another story.
I don't mean to say that rapracious sexual exploitation of women does not occur. It does, and when its face is seen, it is loathesome beyond comprehension. There are pimps who induce women to drug addiction, who beat them, and who intimidate them in every inhuman way to dominate and control them. For the reasons set forth above, it is difficult to get reliable information about the frequency of those things except when objective evidence is seen. Nothing suggests that this is a typical or ordinary phenomenon to anyone who has represented protitutes. It is exceptional rather than commonplace, and any law founded on the proposition that such behavior underlies the general nature of prostitution will be seriously misguided. Our laws severely punishing pandering have always been sufficient to deal with that predatory criminality when it is detected and no alleged gap in our criminal laws exists which makes it necessary to treat all the customers of prostitutes as felons.
The debate should be about the legitimate extent of public involvement in private morality, and to the extent that they differ, in personal morality as well.
The debate should also be about a woman's fundamental right over her own body and her essential right to make her own sexual decisions about it.
(Libertarian Interjection: A practical and true understanding of human nature leads to the conclusion that you really can't legislate morality. Especially not in matters sexual. Every Communist regime tried to abolish prostitution, and even when armed with the tools of a totalitarian state, none of them ever succeeded. The political re-eduction camps to which the prostitutes were sent never stopped prostitution. None of the 1984 tools in the arsenal of government will ever stop or do much to deter the human conditions that make prostitution ever present in virtually every human community of size. The War on Drugs has created horrible collateral damage to personal liberty and personal privacy, because there will always be an argument that to detect crime among consenting persons, government needs to reach its hands and ears clandestinely into the private affairs of persons. The War on Drugs, like Prohibition before it, has limited the supply of drugs, caused drugs to be available at an artificially inflated price, made abundant profits available to ruthless criminals, built violent criminal empires that regularly kill innocent children and adults as result of bad marksmanship and gun training (it routinely gets blamed on guns instead of the economic consequences of the War on Drugs), and it corrupts both cops and judges as it creates an expensive and massive law enforcement presence, an economic empire in its own right to fight with white hats in the War on Drugs - with all of the tools of a totalitarian police state aimed at the citizenry. If one sincerely wishes to diminish prostitution to a shadow of its present level of activity, to end the carnage on our streets, to massively reduce both shoplifting and street robberies, to reduce foreclosures and fraudulent loans and embezzlement, one should try to eliminate the hunger for money that drives much of those crimes: make drugs legal to possess and use and make them freely available through pharmacies under the prescription of treating physicians. Whatever social costs may be entailed by increased drug abuse are surely likely to amount to a very small percentage of the social costs associated with the War on Drugs.)
The part-time, frugally-paid Legistlators of the Nineteenth Century understood society and its members and the limits of government's actual power to affect behavior far better than the full-time legislature of today. The pamphlet containing all of the criminal laws of this State was 169 pages long in 1976, when I was a first-year law student. The same publisher’s version of the criminal laws now contained 1022 pages the last time I looked. You see, when your only tool is a hammer, all of your problems begin to look like nails, and when you're a legislator, all you can do is pass laws. And when you're a legislator these days, you get the sense that the public may adversely judge your effectiveness and productivity of you don't get new laws passed. It's Common Sense that becomes the real victim in this dynamic - what will restore Common Sense is a return to the sensible approach of the Common Law as it emerged over centuries of development in England, here, and in the other English-speaking nations. And in at least one Latin and Italian-speaking nation.
Even Saint Thomas Aquinas knew more about human nature eight hundred years ago than today's Do-Gooders (the late Mike Royko's term), and that's probably why it is that, even today, prostitution is no crime at all behind the walls of Vatican City, and why it is that neither the Catechism of the Council of Trent nor today's Catechism of the Catholic Church takes the position that prostitution should be criminally proscribed by the secular state, as for example the newer Catechism does in the case of obscenity. Recent news articles demonstrate that when Church officials were detected operating male prostitution rings, involving seminarians in Vatican City, the penalty they paid was the loss of a Church job and a papal knighthood honor but not a criminal conviction.
Our experiment with a coercive criminal sanction for prostitution started in 1961. It's time to end the experiment. It looks to me that, since 2011, the plug has been half pulled out already. Fairness now requires the rest of the plug to be pulled: We should return to the common wisdom found in all of the other English-speaking cultures of world, the wisdom under which Illinois was founded and which survived here until 1961.
Update: The news lately has been centering on a small town on the East Coast and plans to release the names of hundreds of customers from a "black book" maintained by the madam involved. Local officials brag about how the customers will get their just deserts by exposure. For the record, few if any of them have been charged with any crime; none of them have been convicted of any crime. Disclosure of these names, some common names, will ring a bell that can never be unrung, causing harm of serious nature that can never really be fixed. Few seem to care. The woman who earned perhaps $150,000 in prostitution has been relegated to the fifth paragraph in the news articles, they center all on the customers. These disclosures, true or false, will cause dramatic economic harm to not only any actual customers, but to their families, their wives, and children - and as a result to society. How many food stamps, how many welfare payments will result from the marriages fractured by these disclosures? No one is even thinking about adding these numbers up in deciding what's right, and I think that's a stupid and tragic mistake. The political winds now blowing in Illinois would make this woman the victim of these customers, a wind now reflected in disparate treatment by Illinois law favoring prostitutes over customers. What I believe is that she and all of her customers are victimized by such a prosecution, far, far beyond any justice or retribution that is due to society, and in the end, society itself will pay a steep price for what, in reality, is its voyeuristic need to expose these men. 10.20.12.
Finally, if you or someone you know is facing a prostitution-related criminal charge, take a long and hard look at this article before entering a plea of guilty, and watch this video.
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 Adult Entertainment, and his firm has represented many owners, employees, and customers of every kind of adult-oriented businesses, both online and in the real world, in the Greater Chicago Area, but also representing online clients from Hong Kong to Budapest. He can be reached in the office at 312 558-6420. His e-mail address is firstname.lastname@example.org.