ARRESTED FOR PROSTITUTION?
ARRESTED FOR PROSTITUTION?
Charged with prostitution in New York? Generally, one commits the crime of prostitution when one agrees or engages or offers to engage in sexual conduct with someone else for a fee. For the exact wording of the prostitution statute, see NY Penal Law (PL) § 230.00.
Therefore, one need not actually engage in sexual conduct to be guilty of prostitution. A reading of the statute makes it clear that one may charged with prostitution by agreeing to or offering to engage in sexual conduct with someone else for a fee. That’s why the police come storming into the hotel room after the deal is made as opposed to waiting until sexual conduct takes place.
Prostitution is a “B” Misdemeanor
Prostitution – Sex of the Participants Irrelevant
Under the statute (PL § 230.00), the sex of the participants is irrelevant. For example, a man offering to engage in sexual conduct with another man for a fee can also be charged with prostitution. In fact, the defense that both parties were of the same sex has been specifically eliminated by statute. See PL § 230.10 which states that it is not a defense to a prostitution charge that the participants were the same sex.
Prostitution – Sexual Conduct
For whatever reason, the NYS Legislature declined to define the term “sexual conduct” in Section 230.00 of the Penal Law. Questions can arise therefore, regarding what conduct is prohibited. Court decisions over the years have judicially developed a list of conduct considered “sexual” and therefore, prohibited under the prostitution statute (PL§ 230.00) if offered to be performed for a fee.
Various court ruling have held that, for purposes of a prostitution charge, “sexual conduct” includes acts of masturbation, homosexuality, sexual intercourse, or physical contact of the person's clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breast.
Prostitution – Taboo Terms
One need not offer or request, for a fee, sexual intercourse, deviate sexual intercourse or masturbation in those exact words to run afoul of the prostitution statute.
For example, in upholding a prostitution conviction, one court has concluded that the term "get laid" is commonly understood to mean "engage in sexual intercourse".
In another case, it was held that there was probable cause to proceed with a prostitution case where the undercover officer was greeted by a woman who told him that "the deal is $130 for full service". Moreover, agreeing to perform “oral sex” satisfies the “sexual conduct” element found in the prostitution statute.
Prostitution – Lap Dancing
The United States Supreme Court has established that nude dancing is generally protected under the First Amendment to the United States Constitution See e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
People v. Tribble (1992) - Good
What about lap dancing where in addition to dancing nude, the dancer, gyrates on a customer’s private parts? In 1992, when Peter Tilem, the Senior Partner here at Tilem & Campbell was still a prosecutor, he prosecuted a key lap dancing case which, thankfully, was dismissed. The case was People v. Tribble, 9/29/92 N.Y.L.J. 22, (col. 3). In the Tribble case, J. Ferdinand of the New York City Criminal Court (NY County) held that the fondling and caressing of a dancer’s breasts and buttocks during a lap dance was not sexual conduct and therefore, could not sustain a prostitution charge.
J. Ferdinand also held that a private session where the undercover officer could masturbate on one side of a glass partition while the dancer/performer did the same on the other, for a fee, did not constitute "sexual conduct with another" as prohibited by PL §230.00 – the prostitution statute. See also People v. Greene, 110 Misc.2d 40, 441 N.Y.S.2d 636 (N.Y.City Crim.Ct.,1981) where the court held that the phrase “with another person,” as used in the prostitution statute, may not be construed as including agreements which call only for performance of autoerotic acts.
However, in the Tribble case, J. Ferdinand did hold that the rubbing of one’s exposed penis against the buttock’s of a dancer did constitute sexual conduct and was therefore, prohibited under the prostitution statute if the male paid the dancer.
People v. Hinzmann (1998) - Bad
However, in People v. Hinzmann, 177 Misc.2d 531, 677 N.Y.S.2d 440 (1998), Judge Michael R. Sonberg, of the York City Criminal Court held that lap-dancing combined with the touching of the dancer’s naked breasts and buttocks constituted sexual conduct as that term is used in the prostitution statute.
The Hinzmann decision did not hold that lap dancing in and of itself constituted sexual conduct sufficient to trigger a prostitution charge. It was the touching of the dancer’s naked breasts and buttocks in combination with her “moving around” on the undercover officer’s lap that, according to J. Sonberg, constituted sexual conduct for purposes of the prostitution statute.
In fact, J. Sonberg expressly stated in a footnote: “This decision does not reach the issue of whether ‘lap dancing’, in and of itself, is conduct within the proscription of Article 230. It is the combination of ‘lap dancing’ with the touching of naked breasts and buttocks which this Court finds to be encompassed within the meaning of ‘sexual conduct’.”
Prostitution – Adult Films
One would assume that with the widespread proliferation of adult films on the internet, video, DVD, etc, that the sexual conduct performed within such films is nothing more than a performance. In other words, the performers in adult videos are engaged in nothing more than acting.
A 1978 decision out of the New York County Supreme Court by J. Robert M. Haft held that the hiring of actors and actresses for the purpose of engaging in filmed sexual conduct constitutes “prostitution.” People v. Kovner, 96 Misc.2d 414, 409 N.Y.S.2d 349 (N.Y.Sup.,1978)
However, in a more recent (2006) decision, People v. Paulino, N.Y.L.J., August 4, 2006, p. 19, col. 1 (Sup. 2006), the same New York County Supreme Court criticized and rejected the Kovner case deeming it a "a single, stale, faulty and non-precedential decision". The Paulino decision also observed that the Kovner court's novel interpretation of the prostitution statute "eradicates the traditional bilateral notion of prostitution, which entails A paying B for sexual activity and enlarges the scope of the crime to prohibit C (a non-participating third party) from paying B for sexual activity to be performed on A." The Paulino court found the Kovner court’s interpretation of the prostitution statute to be unjustifiably broad.
Prostitution – S & M Activities
In People v. Georgia A., 163 Misc.2d 634, 621 N.Y.S.2d 779 (N.Y.City Crim.Ct.,1994), the NY City Criminal Court held that the prostitution does not encompass sado-masochistic relationships. The court observed that sado-masochistic acts such as domination, foot licking, spanking and submission are not "sexual conduct" prohibited by the prostitution statute.
Prostitution – The Punishment
Prostitution was originally classified as a violation and therefore was not a criminal offense. A prostitution conviction, therefore, did not result in a criminal record. However, in 1969, the NYS Legislature elevated the offense of prostitution to a Class “B” Misdemeanor.
The potential penalties for a “B” Misdemeanor will be discussed in great detail in a subsequent newsletter. Generally, on a “B” Misdemeanor, the range and combination of sentence is as follows:
1. Up to three months (NY PL § 70.15(2)) and/or a fine not exceeding $500.00. There is apparently no minimum fine. PL § 80.05(2); or
2. One year probation (PL § 65.00(3)(c)) and/or a fine not exceeding $500.00. There is apparently no minimum fine. PL § 80.05(2); or
3. A one year conditional discharge (PL§ 65.05(3)(b)). The defendant will be subject the conditions as determined by the court. (PL § 65.05(2)); or
4. An unconditional discharge. When the court imposes an unconditional discharge, the defendant is released without imprisonment, fine or probation supervision. (PL § 65.05).
Conclusion
Our advice is to conduct your business within the precepts of the law. However, should you ever need legal representation on any matter involving the escort industry including federal, state and local charges, you can contact Tilem & Campbell 24/7 365 days per year toll free at 1-877-377-8666 or visit www.EscortAttorney.com.
Finally, if arrested or even if the police want to question you, SAY NOTHING OTHER THAN, I WANT MY LAWYER. Do NOT give a statement or try to talk your way out of the arrest. We can’t make this any clearer, just SHUT UP AND TELL THEM YOU WANT AN ATTORNEY AND THEN CALL TILEM & CAMPBELL. BE POLITE, BUT NEVER, NEVER, NEVER GIVE A STATEMENT – EVER!
John Campbell, Esq., Managing Partner at Tilem & Campbell, PC. johncampbell@tilemandcampbell.com
Charged with prostitution in New York? Generally, one commits the crime of prostitution when one agrees or engages or offers to engage in sexual conduct with someone else for a fee. For the exact wording of the prostitution statute, see NY Penal Law (PL) § 230.00.
Therefore, one need not actually engage in sexual conduct to be guilty of prostitution. A reading of the statute makes it clear that one may charged with prostitution by agreeing to or offering to engage in sexual conduct with someone else for a fee. That’s why the police come storming into the hotel room after the deal is made as opposed to waiting until sexual conduct takes place.
Prostitution is a “B” Misdemeanor
Prostitution – Sex of the Participants Irrelevant
Under the statute (PL § 230.00), the sex of the participants is irrelevant. For example, a man offering to engage in sexual conduct with another man for a fee can also be charged with prostitution. In fact, the defense that both parties were of the same sex has been specifically eliminated by statute. See PL § 230.10 which states that it is not a defense to a prostitution charge that the participants were the same sex.
Prostitution – Sexual Conduct
For whatever reason, the NYS Legislature declined to define the term “sexual conduct” in Section 230.00 of the Penal Law. Questions can arise therefore, regarding what conduct is prohibited. Court decisions over the years have judicially developed a list of conduct considered “sexual” and therefore, prohibited under the prostitution statute (PL§ 230.00) if offered to be performed for a fee.
Various court ruling have held that, for purposes of a prostitution charge, “sexual conduct” includes acts of masturbation, homosexuality, sexual intercourse, or physical contact of the person's clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breast.
Prostitution – Taboo Terms
One need not offer or request, for a fee, sexual intercourse, deviate sexual intercourse or masturbation in those exact words to run afoul of the prostitution statute.
For example, in upholding a prostitution conviction, one court has concluded that the term "get laid" is commonly understood to mean "engage in sexual intercourse".
In another case, it was held that there was probable cause to proceed with a prostitution case where the undercover officer was greeted by a woman who told him that "the deal is $130 for full service". Moreover, agreeing to perform “oral sex” satisfies the “sexual conduct” element found in the prostitution statute.
Prostitution – Lap Dancing
The United States Supreme Court has established that nude dancing is generally protected under the First Amendment to the United States Constitution See e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
People v. Tribble (1992) - Good
What about lap dancing where in addition to dancing nude, the dancer, gyrates on a customer’s private parts? In 1992, when Peter Tilem, the Senior Partner here at Tilem & Campbell was still a prosecutor, he prosecuted a key lap dancing case which, thankfully, was dismissed. The case was People v. Tribble, 9/29/92 N.Y.L.J. 22, (col. 3). In the Tribble case, J. Ferdinand of the New York City Criminal Court (NY County) held that the fondling and caressing of a dancer’s breasts and buttocks during a lap dance was not sexual conduct and therefore, could not sustain a prostitution charge.
J. Ferdinand also held that a private session where the undercover officer could masturbate on one side of a glass partition while the dancer/performer did the same on the other, for a fee, did not constitute "sexual conduct with another" as prohibited by PL §230.00 – the prostitution statute. See also People v. Greene, 110 Misc.2d 40, 441 N.Y.S.2d 636 (N.Y.City Crim.Ct.,1981) where the court held that the phrase “with another person,” as used in the prostitution statute, may not be construed as including agreements which call only for performance of autoerotic acts.
However, in the Tribble case, J. Ferdinand did hold that the rubbing of one’s exposed penis against the buttock’s of a dancer did constitute sexual conduct and was therefore, prohibited under the prostitution statute if the male paid the dancer.
People v. Hinzmann (1998) - Bad
However, in People v. Hinzmann, 177 Misc.2d 531, 677 N.Y.S.2d 440 (1998), Judge Michael R. Sonberg, of the York City Criminal Court held that lap-dancing combined with the touching of the dancer’s naked breasts and buttocks constituted sexual conduct as that term is used in the prostitution statute.
The Hinzmann decision did not hold that lap dancing in and of itself constituted sexual conduct sufficient to trigger a prostitution charge. It was the touching of the dancer’s naked breasts and buttocks in combination with her “moving around” on the undercover officer’s lap that, according to J. Sonberg, constituted sexual conduct for purposes of the prostitution statute.
In fact, J. Sonberg expressly stated in a footnote: “This decision does not reach the issue of whether ‘lap dancing’, in and of itself, is conduct within the proscription of Article 230. It is the combination of ‘lap dancing’ with the touching of naked breasts and buttocks which this Court finds to be encompassed within the meaning of ‘sexual conduct’.”
Prostitution – Adult Films
One would assume that with the widespread proliferation of adult films on the internet, video, DVD, etc, that the sexual conduct performed within such films is nothing more than a performance. In other words, the performers in adult videos are engaged in nothing more than acting.
A 1978 decision out of the New York County Supreme Court by J. Robert M. Haft held that the hiring of actors and actresses for the purpose of engaging in filmed sexual conduct constitutes “prostitution.” People v. Kovner, 96 Misc.2d 414, 409 N.Y.S.2d 349 (N.Y.Sup.,1978)
However, in a more recent (2006) decision, People v. Paulino, N.Y.L.J., August 4, 2006, p. 19, col. 1 (Sup. 2006), the same New York County Supreme Court criticized and rejected the Kovner case deeming it a "a single, stale, faulty and non-precedential decision". The Paulino decision also observed that the Kovner court's novel interpretation of the prostitution statute "eradicates the traditional bilateral notion of prostitution, which entails A paying B for sexual activity and enlarges the scope of the crime to prohibit C (a non-participating third party) from paying B for sexual activity to be performed on A." The Paulino court found the Kovner court’s interpretation of the prostitution statute to be unjustifiably broad.
Prostitution – S & M Activities
In People v. Georgia A., 163 Misc.2d 634, 621 N.Y.S.2d 779 (N.Y.City Crim.Ct.,1994), the NY City Criminal Court held that the prostitution does not encompass sado-masochistic relationships. The court observed that sado-masochistic acts such as domination, foot licking, spanking and submission are not "sexual conduct" prohibited by the prostitution statute.
Prostitution – The Punishment
Prostitution was originally classified as a violation and therefore was not a criminal offense. A prostitution conviction, therefore, did not result in a criminal record. However, in 1969, the NYS Legislature elevated the offense of prostitution to a Class “B” Misdemeanor.
The potential penalties for a “B” Misdemeanor will be discussed in great detail in a subsequent newsletter. Generally, on a “B” Misdemeanor, the range and combination of sentence is as follows:
1. Up to three months (NY PL § 70.15(2)) and/or a fine not exceeding $500.00. There is apparently no minimum fine. PL § 80.05(2); or
2. One year probation (PL § 65.00(3)(c)) and/or a fine not exceeding $500.00. There is apparently no minimum fine. PL § 80.05(2); or
3. A one year conditional discharge (PL§ 65.05(3)(b)). The defendant will be subject the conditions as determined by the court. (PL § 65.05(2)); or
4. An unconditional discharge. When the court imposes an unconditional discharge, the defendant is released without imprisonment, fine or probation supervision. (PL § 65.05).
Conclusion
Our advice is to conduct your business within the precepts of the law. However, should you ever need legal representation on any matter involving the escort industry including federal, state and local charges, you can contact Tilem & Campbell 24/7 365 days per year toll free at 1-877-377-8666 or visit www.EscortAttorney.com.
Finally, if arrested or even if the police want to question you, SAY NOTHING OTHER THAN, I WANT MY LAWYER. Do NOT give a statement or try to talk your way out of the arrest. We can’t make this any clearer, just SHUT UP AND TELL THEM YOU WANT AN ATTORNEY AND THEN CALL TILEM & CAMPBELL. BE POLITE, BUT NEVER, NEVER, NEVER GIVE A STATEMENT – EVER!
John Campbell, Esq., Managing Partner at Tilem & Campbell, PC. johncampbell@tilemandcampbell.com