Have We All Engaged In The “Oldest Profession?”

Recently, prostitution has become a hot topic around the workplace water cooler. Since KCCI ran the story of Iowa attorney, Katherine Sears, who also works part-time as a prostitute in Nevada, the Twittersphere, Reddit strings and Iowa Court’s online searches have taken on a craze not far removed from March Madness. Mrs. Sears elected to tell her story in support of her efforts to decriminalize “the oldest profession.” Interestingly, this story, while sensational and over-the-top of the gossip and scuttlebutt charts, actually brings up an interesting discussion. What qualifies as prostitution and how far can the law defining prostitution be stretched? Might we all be prostitutes in one way or another?

Iowa Code section 725.1 makes it an aggravated misdemeanor for a person who “sells or offers for sale the person’s services as a partner in a sex act.” It is also an aggravated misdemeanor for a person who “purchases or offers to purchase another person’s services as a partner in a sex act.” Black’s Law Dictionary defines “sell” as: to transfer (property) by sale. It defines “sale” as 1. The transfer of property or title for a price. 2. The agreement by which such a transfer takes place. The four elements are (1) parties competent to contract, (2) mutual assent, (3) a thing capable of being transferred, and (4) a price in money paid or promised. Black’s defines “purchase” as: 1. The act or an instance of buying. Sounds like it is pretty straight-forward money transaction right? Maybe.

Iowa creates model jury instructions which are used to define various crimes for juries when a case is taken to trial. Under the Iowa Model Jury Instructions, the phrase “offer to sell or purchase” is defined as: “the phrase (“offered for sale”) (“offered to purchase”) refers to any verbal statement, act, or conduct which invites a person to be a partner in a sex act for money or other thing of value, regardless of whether a sex act occurred or a person made an actual payment of any kind to either person. The request, solicitation, or acceptance does not have to be in any particular form of words. It can arise from a gesture or other expression which indicates a sex act was to occur.”

As a student attorney at the Drake Legal Clinic, GRL attorney Scott Michels, defended a prostitution case, arguing that the statute was unconstitutionally vague. His client was being charged with prostitution for offering an undercover officer sex if he paid for her prescription drug. Scott argued that the statute only criminalized sex in exchange for money, and that his client was engaged in a barter, which was not under the purview of the statute. He also argued that the statute was unconstitutional because it did not clearly articulate what conduct was criminalized – citing to the factual scenario of: is a wife a prostitute if she agrees to have sex with her husband if he washes the dishes? Is the husband guilty of solicitation if he offers to do the dishes if his wife will have sex with him? The Court denied the motion.

You may think this is a silly argument concocted by an over-analytical criminal defense attorney and would never arise in real life. However, a search for cases across the country reveals that there are a number of prostitution cases that involve more than strictly financial transactions in exchange for sex. Here are just a few of the noteworthy ones.

In Muse v. U.S., the defendant was convicted of solicitation of prostitution when he offered his gold necklace for a “date” with an undercover police officer. The District of Columbia Court of Appeals held, “[a]lthough no money was involved in appellant’s suggested bargain, this transaction is precisely the type of purely commercial exchange of sexual acts for a ‘fee’ that is encompassed by the definition of prostitution in [the code section].”

Moten v. U.S. – Again, the District of Columbia Court of Appeals held that the offering to an undercover officer shelter and marijuana in exchange for full sex was sufficient to support a conviction of soliciting prostitution. The Court held that the term “fee” is not limited to money.

The Court of Appeals of Maryland, in the case of Attorney Grievance Commission of Maryland v. Marcalus, held that the exchange of a prescription pain medication for fellatio was sufficient to support a conviction for “assignation” or the making of an appointment for prostitution.

In Edwards v. Indiana, the defendant was convicted of prostitution when he agreed to give an undercover officer “head” in exchange for a ride across town.

Clearly, these cases demonstrate that the broader definition of “sells or offers for sale” and “purchases or offers to purchase” opens up a limitless number of possibilities for the government to criminalize what most people would consider completely “normal” sexual interactions. Taking the application of “anything of value” in exchange for a sex act to its logical extreme, the possibilities of what qualifies as prostitution become limitless. In the law, we use the latin phrase reducto ad absurdum or taken to its logical extreme. Would the person who abstains from sex until marriage qualify as a prostitute? After all many invest significant financial resources into the traditions of engagement and ultimately matrimony. Might a spouse who uses sex as a motivation for the “honey-do list” to be completed qualify? If the legal standard is sex in exchange for something of value might we all be prostitutes in one way or another?